Delhi High Court
Reliance Infocom Ltd. vs Bharat Sanchar Nigam Ltd. on 10 February, 2005
Equivalent citations: 2005 (1) ARBLR 439 Delhi, 118 (2005) DLT 189
Bench: B Khan, A Kumar
JUDGMENT
1. Respondent has filed this application praying that the issue of jurisdiction raised by it against the maintainability of appellant's application under Section 9 of the Arbitration Act, 1996 and the arbitration be decided as a preliminary issue in this Appeal.
2. This appeal is directed against order dated 4.11.2004 dismissing appellant's OMP No.398/2004 filed under Section 9 of the New Arbitration Act 1996 and the jurisdictional plea raised by the respondent is that this court had no jurisdiction to entertain an application under Section 9 of the Arbitration Act, 1996 nor could the dispute raised by Appellant be referred to any arbitration in the face of Sections 14 & 15 of the TRAI Act and subsequent to the creation of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) under this Act as this Tribunal alone had the jurisdiction to decide and adjudicate such disputes in connection with which appellant had filed the OMP under Section 9 of the Arbitration Act for an interim protection.
3. Learned senior counsel for respondent/applicant Mr.Sunderam urged that this issue was required to be decided on the very threshold to obviate the necessity of examining the merit of the issues surrounding the appellant's OMP in the event it was held that this court had no jurisdiction to entertain the OMP and that the jurisdiction vested with the TDSAT only. He supported it by a Supreme Court order passed in Arun Aggarwal v. Nagreeka Exports (P) Ltd. (2002) 10 Supreme Court Cases 101 and an order passed by the Court disposing of respondent's SLP No.7816-7847/2004. According to him, both these orders required this court to decide the jurisdictional question as a preliminary objection.
4. The claim of the applicant-respondent is contested by Learned Senior Counsel for appellant Mr. Harish Salve on the expected lines. He pointed out that respondent-applicant was abusing the process of this court by filing repeated applications for the same relief to prevent the court from examining the merit of the matter. He referred to the application (CM No.428/2005) filed by the applicant in this regard seeking dismissal of appellant's appeal for want of jurisdiction by this court and also for appellant's alleged default to file some affidavit in terms of the orders of the court which was dismissed by the court vide order dated 20.1.2005. He submitted that as the applicant (respondent) had followed it up by the present application showed that it was doing all this pursuant to a design to prevent this court from examining the merit of appellant's case so that the findings returned on the merit of the issues by the learned Single Judge in the impugned order would stick to the appellant for good. Mr.Salve took us through the two orders of the Hon'ble Supreme Court (supra) to demonstrate that the Apex Court had not at any stage directed this court to treat the jurisdictional objection taken by the applicant/respondent as a preliminary issue.
5. We have gone through the two orders of the Hon'ble Supreme Court but these, in our view, neither lay down that a jurisdictional issue was to be necessarily decided as a preliminary issue nor that this court should decide the issue first.
6. The first order of the Supreme Court in Arun Aggarwal v. Nagreeka Exports (P) Ltd's case does not advert to any legal position to hold conclusively on any reasoning that a court was bound to decide a jurisdictional objection as a preliminary issue in all events and circumstances. All it says in the circumstances of that case is:-
We are of the view that question regarding jurisdiction of the court was required to be decided as a preliminary issue. We, therefore, set aside the order under challenge and send the case back to High Court to decide the question of jurisdiction of court as a preliminary issue.
7. Since no reasons are given in support of this direction and no legal position adverted to or dealt with, the only conclusion that could be drawn is that the court had passed this direction in the facts and circumstances of the case.
8. In the other order also, while dismissing respondent's SLP, the Supreme court said:-
Since the matter is now pending consideration before the Appellate Bench of the High Court, we thing it is unnecessary for us to decide this question, hence we express no opinion in this regard.
9. This, in our view, could not be read as direction of the Apex Court asking this court to decide the question of jurisdiction as a preliminary issue.
10. Even if the issue was to be considered in the light of the provisions of Order 14 Rule 2 of CPC, it could not be said that the court was bound to decide a preliminary issue first. Because even this provision uses the words court may which leaves it open to the court to decide the issue as a preliminary issue or decide it along with the case.
11. Apart from this, it is noticed that respondent/applicant's counsel had taken an oral objection with regard to the non-maintainability of appellant's application under Section 9 of the Arbitration Act and the lack of jurisdiction of this court and yet had at the same time invited a decision on merits before the learned Single Judge upon which appellant's OMP was dismissed on merits. This respondent had also not taken this objection before this court in the present appeal initially by any pleading. The objection seems to have been taken for the first time by the respondent before the Hon'ble Supreme Court in the SLP challenging the first interim order passed by this court dated 5.11.2004.
12. In this conspectus, we are unable to appreciate the anxiety of respondent to seek the decision on the jurisdictional question first when it had itself invited a decision on merit in appellant's OMP before the learned Single Judge.
13. Whether or not a preliminary issue should be decided first falls within the discretion of the court which is exercisable taking in regard the interest of justice. If it appears to the court that it was in furtherance of the interest of justice to decide the issue first, it would so decide. But where the court feels that the interests of justice could be frustrated by deciding the issue as the preliminary issue, the court may choose to decide it along with the main case so that any prejudice caused to a party by any finding on the merit of the issues is also dealt with. In other words, there is no hard and fast rule or any straight jacket formula about how and when a court should decide the preliminary issue of jurisdictional question first. Nor is there any mandatory obligation cast by any law on the court to do so.
14. Therefore, all told, we find no merit in this application which is dismissed.
FAO (OS) 232/2004
15. List the appeal for further proceedings on 10th March 2005.
