Jharkhand High Court
M/S A. B. Singh vs M/S Central Coalfields Limited on 24 February, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Arbitration Appeal No. 05 of 2017
M/s A. B. Singh ... ... Appellant
Versus
M/s Central Coalfields Limited ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Attanu Banerjee, Advocate
: Mr. Satish Kumar, Advocate
For the Respondent : Mr. A. K. Das, Advocate
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10/24.02.2023
1. Heard the learned counsel for the parties.
Arguments of the appellant
2. Learned counsel for the appellant has submitted that petition filed
under Section 34 of the Arbitration and Conciliation Act was hopelessly
barred by limitation and it was not accompanied by any petition for
condonation of delay under Section 34(3) of the Act. The learned
counsel submits that a petition under Section 14 of the Limitation Act
was filed stating that the respondent was pursuing his remedy before the
civil court at Ranchi, although the jurisdiction was before the court at
Bokaro.
3. While giving the dates, the learned counsel submits that the award
is dated 23.12.2006 and the petition for setting aside was filed on
12.03.2007. 3 months for filing the petition under section 34 was
scheduled to expire on 24.03.2007. Therefore, it was initially filed
within the period of limitation and upon counting the days only 12 days
further was available to the respondent. The learned counsel has further
submitted that the petition was held to be not maintainable at Ranchi
vide order dated 15.12.2007 on account of lack of territorial jurisdiction.
The respondent filed miscellaneous appeal before this Court in Misc.
Appeal No. 77/2008 which was ultimately dismissed on 09.12.2009.
Thereafter, the respondent filed a petition on 04.01.2010 under Order VII
Rule 10(A) of C.P.C. to fix the date for return of plaint which was
rejected on 16.01.2010 as not maintainable. The petition under section 34
was taken back and was filed before the competent court on 21.01.2010
and thereafter, a petition under Section 14 of the Limitation Act was
filed. The learned counsel submits that admittedly, no petition under
section 34(3) was filed.
4. The learned counsel submits that the petition under Section 14
does not properly explain the timeline to be excluded. However, he has
submitted that two points are also required to be considered; firstly, there
was no requirement to file a petition under Order VII Rule 10(A) for
return of the plaint as there was already an order to take back the plaint
and accordingly petition under Order VII Rule 10(A) was held to be not
maintainable. Secondly, the time spent in connection with Section 14 of
the Limitation Act was also required to be explained in the petition,
which was not done. The learned counsel has also submitted that upon
perusal of the order dated 15.12.2007 itself, it was mentioned that the
plaint was being returned for presentation in proper court, but the
respondent did not take the plaint and challenge the order before the
appellate court. The learned counsel submits that the conduct of the
respondent indicates that they had not pursued their matter in good faith.
5. The learned counsel has also referred to the order passed by the
learned court below dealing with the petition filed under Section 14 of
the Limitation Act and has submitted that the learned court below has not
dealt with the timeline and has not specifically mentioned as to which
period was to be excluded in terms of Section 14.
6. The learned counsel submits that thereafter, the learned court
below passed the impugned order on merits on the point of jurisdiction
of the learned arbitrator and while passing the impugned order, the
learned court below has not even referred to the findings of learned
Arbitrator or to hold that the findings of the learned arbitrator was hit by
any of the permissible grounds for interference under section 34 of the
Arbitration and Conciliation Act, 1996.
7. The learned counsel submits that the order passed by this Court
under Section 11 (6) has interpreted the provision of clause 95 of the
arbitration agreement. The learned counsel has also submitted that the
impugned order is not in consonance with the provisions of Section 34(2)
of the Act.
8. The learned counsel has also referred to Section 4 of the
Arbitration and Conciliation Act, 1996 to submit that the respondent
having not raised certain points regarding the jurisdiction at the relevant
point of time has waived his right to raise such points at a later stage.
The learned counsel has submitted that provision of Section 4 is to be
read with Section 16 of the Act, 1996.
9. The learned counsel has relied upon the judgments passed by the
Hon'ble Supreme Court reported in (2020) 18 SCC 277 (Quippo
Construction Equipment Limtied vs. Janardan Nirman Private
Limited) and (2014) 11 SCC 366 paragraph 16 to 19.
Arguments of the respondent
10. Learned counsel for the respondent, on the other hand, has
opposed the prayer of the appellant and has submitted that the petition
under Section 14 of the Limitation Act was rightly entertained and
considered by the learned court below and the delay was condoned by a
separate order. The learned counsel while referring to the dates has
submitted that it is not in dispute that the award was passed on
23.12.2006 and the petition for setting aside was filed on 12.03.2007.
The learned counsel, from the records of this case, could not point out
any date mentioned in any of the petitions filed before the learned court
below by the respondent regarding the date of receiving the award and
therefore, it is not in dispute that the limitation is to be counted
immediately after 23.12.2006 i.e., the date of award. Admittedly, the
timeline for filing petition under Section 34 i.e., three months was
scheduled to expire on 24.03.2007 and just before 12 days of the expiry
of the period, the petition under Section 34 was filed. It is further not in
dispute that the plaint was to be returned in terms of order dated
15.12.2007 against which the respondent had moved before the appellant
authority in the High Court and the appeal was also dismissed on
09.12.2009. The learned counsel submits that after the decision in the
miscellaneous appeal passed by this Court, the respondent had applied
for certified copy immediately and he could get the certificate copy of
the order passed in the miscellaneous appeal only on 21.12.2009.
Thereafter, a petition under Order VII Rule 10(2) (A) was filed on
04.01.2010 which was rejected as not maintainable on 16.01.2010.
Thereafter, the respondent took back the plaint on 18.01.2010 and
presented the same before the learned Sub-Judge, Tenughat on
21.01.2010. The learned counsel submits that the entire timeline stands
fully explained and therefore, the petition under Section 14 was rightly
allowed by the learned court below and if particular dates have not been
mentioned in Section 14 application, the same is not fatal to the merit of
the petition under Section 14 of the Limitation Act. The learned counsel
has also submitted that since Section 14 application was sufficient for
excluding the period of delay, therefore, no petition under Section 34(3)
was required to be filed and consequently, no petition under Section
34(3) for condonation of delay was ever filed by the respondent before
the learned court below.
11. On the merits of the case, the learned counsel for the respondent
has submitted that the point of jurisdiction was raised before the learned
Arbitrator by stating that the arbitration proceeding is not maintainable
and is liable to be dismissed. He has also submitted that the said point
was elaborated by the respondent before the learned Arbitrator in the oral
arguments which has been recorded by the learned Arbitrator, but the
learned Arbitrator has not considered the fact that the learned Arbitrator
had no jurisdiction to act as an arbitrator in the case.
12. The learned counsel has further submitted that a plea was also
raised before the learned Arbitrator that there was no work order issued
to the appellant for the period in dispute and there was no agreement
much less any arbitration agreement for the period involved in the
present case. Further, the learned counsel submits that clause 95 of the
terms and conditions of the agreement, which was relied upon by the
learned counsel for the appellant, was also not an arbitration clause. This
aspect of the matter has also not been considered by the learned
Arbitrator.
13. The learned counsel submits that since the jurisdictional issue was
involved, the learned court below has rightly held that the learned
Arbitrator had no jurisdiction to enter into the reference.
14. During the course of arguments and from perusal of the award, it
appears from paragraph (VI) dealing with analysis of the submissions of
the parties, the learned Arbitrator has recorded that he had given his
ruling that the arbitrator had full jurisdiction to arbitrate upon the present
dispute and then the learned Arbitrator dwelled upon his ruling further
and elaborate his view points and ultimately, held as follows: -
"In this case, the issue of jurisdiction was not raised in the counter
statement of the respondent. Considering all these points, I reiterate
my earlier ruling and do not find the submission of the learned
respondent tenable".
15. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court in the case reported in 2022 SCC Online SC 690
(Mahanadi Coalfields Ltd. and Another vs. IVRCL AMR Joint
Venture) and has referred to paragraph 9 thereof to submit that the
Hon'ble Supreme Court has elaborately dealt with the basic ingredients
which are required to be present in an arbitration clause. The learned
counsel submits that the Hon'ble Supreme Court has also held that mere
use of the word "arbitration" or non-use of the word "arbitration" may
not be material It is the intention of the parties which is to be seen while
interpreting the arbitrating clause. The learned counsel has placed clause
95 of the arbitration agreement and has submitted that the said clause
cannot be termed as an arbitration clause at all.
16. At this stage of the dictation of the order, it has been suddenly
pointed out by the learned counsel for the appellant that against the order
condoning delay, a writ petition being W.P. (C) No. 4760/2011 was filed
and the said writ petition is pending before this Court. At this it has been
reported by the learned court master that there is a batch of four writ
petitions in which W.P. (C) No. 4760/2011 is one of them and all the
writ petitions are of this bench as per roster.
17. In view of the aforesaid last submission, post this case for further
hearing on 01.03.2023 along with batch cases of writ petitions being
W.P. (C) No. 4735/2011; W.P. (C) No. 4738/2011; 4745/2011 and W.P.
(C) No. 4760/2011.
(Anubha Rawat Choudhary, J.)
Mukul
