Union Of India (Uoi) vs Supreme Paper Mills Limited
2004 Latest Caselaw 1223 Del

JUDGMENT

R.C. Jain, J.

IA 1029/2004 in OMP 163/2001

1. This is an application under Order 7, Rule 10, CPC made on behalf of the respondent herein for return of the petition under Section 28 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act') filed on behalf of the petitioner seeking extension of time for making the award by the arbitrator. The application is opposed on behalf of the petitioner mainly on the ground that the Calcutta High Court, which made the reference to arbitral tribunal, had no jurisdiction to do so because it was not a Competent Court within the meaning of Section 2(c) of the Act.

2. I have heard Mr. Dalip Singh, learned counsel appearing for the petitioner and Mr. Shiv Khorana, learned counsel for the respondent and have given my thoughtful consideration to their respective submissions.

3. In the case in hand, it is not disputed that the disputes/differences having arisen between the parties in relation to a contract of supply, the respondent herein had filed a petition under Section 20 of the Act in the Calcutta High Court which petition was disposed of in presence of the parties vide an order dated 03.09.1991 and consequently, the arbitral tribunal became seized of the matter but could not render the award within the stipulated period of four months or even much thereafter and so an application under Section 28 of the Act was necessitated. According to Mr. Khorana, once the reference has been made by the Calcutta High Court, the said Court alone is competent to entertain any subsequent proceedings in relation to the said arbitration either for extension of time within the meaning of Section 28 of the Act or other proceedings like under Section 30 or 33 of the Act, Which might be necessitated. This is, otherwise, a well settled position and is in accordance with the provisions of Section 31(4) of the Act.

4. Mr. Dalip Singh in support of his contention that this Court is the only Competent Court and the Calcutta High Court lacked the territorial jurisdiction and cannot be considered to be a Competent Court within the meaning of Section 2(c) of the Act, has heavily relied upon two decisions; one a Division Bench decision of this Court in the case of Union of India v. Electronic Controls & Instrument Engineers, 1997(2) Arb, LR 691 (Del.) (DB), and the other of the Hon'ble Supreme Court in the case of Bloom Dekor Limited v. Subhash Himatlal Desai, . Both these decisions were rendered under the Code of Civil Procedure and are relevant in regard to the interpretation of the provisions of Section 20 of the CPC and considered the aspect as to whether any part of cause of action had arisen under a particular jurisdiction. In the opinion of this Court, in the present proceedings this Court is not called upon to once again go into the question as to whether the Calcutta High Court, which made the reference to the arbitral tribunal, lacked the territorial jurisdiction or that no part of cause of action had arisen within the jurisdiction of that Court. For the purpose of the present application under Section 28 of the Act, suffice it would be to take note of the factual and legal position that certain arbitral proceedings were initiated earlier in a particular Court and by virtue of the provisions of Section 31(4) of the Act, only that Court can be considered competent to entertain any or all subsequent proceedings arising in relation to the said arbitration. In that view of the matter, this Court is clearly of the view that the present petition under Section 28 of the Act filed by petitioner is not maintainable before this Court. The petition ought to have been filed before the Calcutta High Court which made the reference to the arbitral tribunal.

5. Accordingly, the application is allowed and the petition under Section 28 of the Act is ordered to be returned to the petitioner for proper presentation in accordance with law. Parties are directed to appear before the Joint Registrar on 17th November, 2004 for return of the petition under Section 28 of the Act to the petitioner.

6. The application stands disposed of accordingly.