Premlaxmi And Co vs Konkan Railway Corporation Ltd
2012 Latest Caselaw 281 Bom

                                         1                                    208-arbp-570-2009


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                                                   
                      ARBITRATION PETITION NO.570  OF 2009




                                                           
     Premlaxmi And Co.                                                        ..Petitioner.
               vs.




                                                          
     Konkan Railway Corporation Ltd.
     And 3 ors.                                                      ..Respondents
                                               ....
     Ms.Shilpa Kapil for Petitioner.




                                             
     Ms. Asha Bhambwani for Respondent.
                            ig       ....
                                         CORAM :- ANOOP V. MOHTA, J.

                                        DATE     :- 29TH OCTOBER, 2012.
                          
     ORAL JUDGMENT
      


              Called out from final hearing board.
   



     2        The petitioners - original claimants have challenged   Award 

dated 3rd April 2009 passed by the Arbitral Tribunal constituted

under the agreement between the parties by invoking Section 34 of the Arbitration and Conciliation Act, 1996 (for short "Arbitration Act").

3 Admittedly, there is no specific clause of Court jurisdiction. Merely because an application under Section 11 of the Arbitration Act was filed by the petitioner and whereby an arbitral tribunal was constituted that itself cannot give jurisdiction to this Court to

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entertain Section 34 petition as filed.

4 Admittedly, basic cause of action arose at Ratnagiri as the

construction was of a tunnel at Ratnagiri. Section 2(e) of the Arbitration Act deals with the term "Court". Therefore, the Court at Ratnagiri has jurisdiction to deal with and entertain such application

against the award, though passed by the arbitral tribunal by the consent of parties by holding meetings in Mumbai. The place of arbitration in Mumbai is not sufficient to decide jurisdiction of this

Court to entertain Section 34 application. The submission that in

view of Section 42 and as admittedly Section 11 application was filed in this Court, therefore, this Court has jurisdiction to entertain

the present petition is unacceptable. The Court as contemplated in Section 2(e) and Section 42 cannot be compared with and cannot mean the Hon. Chief Justice and/or the designated Judge, as

contemplated under Section 11 of the Arbitration Act. Both are

different and distinct entity.

5 Section 34 itself, therefore, needs to be read with Section 2(e)

which means the Court where cause of action arose and/or subject matter of the arbitration situated. Therefore, when admittedly the construction work was at Ratnagiri, the "Court" at Ratnagiri has

jurisdiction to entertain such petition. The Apex court in Garhwal Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency [(2008) 6 SCC 745] has dealt with the aspect in following terms:

"10. We further reiterate that the view taken by this

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Court in National Aluminium Company Ltd. v. Pressteel and Fabrications (P) Ltd. [(2004) 1 SCC 540] and State

of Goa v. Western Builders [(2006) 6 SCC 239)] is the

correct approach and we reaffirm the view that in case any appointment of arbitrator is made by the High Court under Section 11(6), the Principal Civil Court of Original

Jurisdiction remains the District Court and not the High Court. And likewise, if an appointment of the arbitrator is made by this Court, in that case also, the objection can

only be filed before the Principal Civil Court of Original

Jurisdiction as defined in Section 2(1)(e) of the 1996 Act. Thus, in this view of the matter, we hold that the

plea raised by learned counsel for the petitioner that this Court should entertain the award given by the arbitrator appointed by this Court and all objections to it should be

disposed of by this Court is unacceptable and

consequently, the prayer made in the application is rejected."

6 This Court also, though prior to the Constitution Bench decision in Konkan Railway Corporation Ltd. referring to Section 42 read with Section 2(e) taken the view, which covered the present

facts and circumstances also in favour of the preliminary objection. The decision given by this Court (by D.K.Deshmukh,J., as he then was) in Garden Finance Ltd. Vs. Prakash Industries Ltd. [2001 (4) Mh.L.J. 425] has dealt with this facet in detail. I am in agreement with the same. Even from the plain reading of these two

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Sections, I am inclined to accept the submission by the learned counsel appearing for respondents that this Court has no jurisdiction.

The arbitration petition is, therefore, without expressing anything on

merits, disposed off as not maintainable.

6 The learned counsel appearing for the petitioner, further

submitted to consider the aspect of limitation at this stage itself. Section 34 of the Arbitration Act provides the procedure in view of the restricted period of limitation. Therefore, I am inclined to grant

liberty to the petitioner to take out appropriate application for the

same. The Court to consider such application and petition in accordance with law. The petition is accordingly disposed of as not

maintainable. All points are kept open. Parties to take steps accordingly. No cost.

      
   



                                                              ( ANOOP V. MOHTA, J. )
                    






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