Calcutta High Court
Smt Nandita Mistry vs Sanjoy Saha And Anr on 2 September, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-11
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
AP/96/2024
SMT NANDITA MISTRY
VS
SANJOY SAHA AND ANR.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 2nd September, 2024
Appearance:
Mr. Sanjib Bandyopadhyay, Adv.
Mr. Nabhojit Prasad Basu, Adv.
Mr. Manoj Kumar Mondal, Adv.
...for the petitioner.
Mr. Debajyoti Basu, Adv.
Mr. Sbhambhu Chakraborty, Adv.
Mr. Diptomoy Talukder, Adv.
...for the respondents.
The Court:- A preliminary objection is taken by learned counsel for the
respondents to the effect that this Court does not have jurisdiction to take up
the matter, since Section 29A empowers a 'Court', as defined in Section 2(1)(e)
of the Arbitration & Conciliation Act, 1996, to take up applications under the
said provision. It is pointed out that previously a suit was filed before the
learned District Judge, Malda. Two applications, one under Section 9 and the
other under Section 29A, of the 1996 Act had also been filed before the District
Judge, Malda.
It is submitted that although the learned Arbitrator was appointed under
Section 11 by a co-ordinate Bench of this Court, the same was under the
specific powers entrusted on the High Court by Section 11.
Learned counsel for the respondent cites an unreported judgment of the
Supreme Court in the matter of Chief Engineer (NH) PWD (Roads) -versus- M/s.
BSC & C and C JV in support of his proposition that an application under
Seciton 29-A has to be filed before the principal court of original civil
jurisdiction.
Learned counsel for the respondent seeks to argue on other points as
well. However, in view of the judgment proposed to be passed, such other
points are not entertained.
Learned counsel for the petitioner submits that previously the
applications filed before the District Judge, Malda were withdrawn upon
imposition of costs. If at the present juncture it is held that this Court does
not have jurisdiction, it is submitted that it would be difficult for the petitioner
to go back to the District Court.
That apart, it is argued that the provisions of Section 42 of the 1996 Act
are not applicable, since the petitioner chose to withdraw the previous
applications from the District Court at Malda.
Even without entering into the question as to whether the petitioner was
justified in withdrawing the applications under Sections 9 and 29A respectively
of the 1996 Act from the Court of the learned District Judge at Malda, at the
outset it is seen that in view of the subject-matter of the proposed arbitral
dispute falling within the territorial jurisdiction of District: Malda, this Court
does not have original jurisdiction to take up the matter.
Although the High Court is specifically empowered under Section 11 of
the 1996 Act to appoint an Arbitrator, any application under Section 29A has
to go before the jurisdictional Court as defined in Section 2(1)(e) of the 1996
Act. Since the Court of the learned District Judge at Malda is the said
jurisdictional Court, this Court does not have any jurisdiction to entertain the
present application at all.
This is not a question of applicability of Section 42 of the 1996 Act,
which precludes a party from presenting an application to a different Court
than the first Court where an application is presented under the 1996 Act, but
a question of the original jurisdiction of this Court, which is utterly lacking.
Thus, in view of lack of jurisdiction, AP/96/2024 is dismissed as not
maintainable.
It is made clear, however, that the merits of the prayer made in the
present application have not been entered into by this Court.
(SABYASACHI BHATTACHARYYA, J.)
s.pal
