National Highways Authority Of ... vs Kota Baran Tollways Pvt. Ltd. & ...
2014 Latest Caselaw 4699 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No.869/2014

%                                             22nd September, 2014

NATIONAL HIGHWAYS AUTHORITY OF INDIA       ......Petitioner
                Through: Ms. Ayushi Kiran, Advocate.


                           VERSUS

KOTA BARAN TOLLWAYS PVT. LTD. & ANR.                       ...... Respondents
                Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             This petition under Article 227 of the Constitution of India is

filed on 16.9.2014 impugning the order dated 11.2.2014 ie an order passed

over seven months back. Also, the order dated 11.2.2014 is only an ex parte

order passed while issuing a notice in a Section 9 petition, under the

Arbitration & Conciliation Act, 1996 (in short 'the Act') and which is

pending disposal. The subject petition under Section 9 of the Act has been

filed by the respondent no.1 herein and against the present petitioner with

respect to disputes arising out of the contract dated 7.2.2011 pertaining to

road building.
CMM 869/2014                                                                Page 1 of 3
 2.             In this petition under Article 227 of the Constitution of India,

petitioner impugns the order dated 11.2.2014 on various grounds, but

essentially there are two main aspects which are urged and which are firstly

that the court below had no territorial jurisdiction and secondly on merits of

the ex parte order dated 11.2.2014 and that it could not be passed, because it

has an effect of allowing payment to the respondent no.1 herein by an ex

parte interim order.


3.             If the impugned order is challenged on the ground that an

injunction is granted, then that order will be appealable under Order XLIII

Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) read with Section

37(1)(a) of the Act and not by means of this petition under Article 227 of the

Constitution of India. Therefore, this petition under Article 227 of the

Constitution of India is not maintainable for this reason and is dismissed

with liberty to the petitioner to file an appeal in view of the judgment of the

Supreme Court in the case of A. Venkatasubbiah Naidu Vs. S.Challappan

& Ors. AIR 2000 SC 3032.

4.             If the case of the petitioner herein, and which is the respondent

no.1 in Section 9 petition of the Act, is that the court below has no territorial

jurisdiction, then, the petitioner herein had to move an application under

CMM 869/2014                                                                  Page 2 of 3
 Order VII Rule 10 CPC before the court below. Straightway, there cannot

be a challenge as regards an issue of territorial jurisdiction, without first this

issue being raised before the court below and decided by the court below.

5.             As already stated above, this petition is also barred by delay

and laches because limitation period of 90 days for filing of the first appeal

is a good guide, though Limitation Act, 1963 stricto sensu does not apply to

a petition under Article 227 of the Constitution of India and therefore this

petition is also barred by delay and laches because it is filed on 16.9.2014

impugning an order passed way back on 11.2.2014.


6.             Dismissed with the aforesaid observations and liberty.




SEPTEMBER 22, 2014                             VALMIKI J. MEHTA, J.

ib