Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4747 of 2022
General Manager East Coast
Railway Rail Sadan & Anr. …Appellants
Versus
Hindustan Construction Co. Ltd. …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Orissa at
Cuttack in Arbitration Petition No.10 of 2021 by which the High
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.08.11
10:47:52 IST
Reason:
Court in exercise of powers under Section 11(6) of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as
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‘the Act’) has appointed an Arbitrator to adjudicate the dispute
between the parties, the original informant – General Manager,
East Coast Railway Rail Sadan and Anr., have preferred the
present appeal.
2. As such the dispute in the present appeal is in a very
narrow compass.
3. The dispute arose between the appellant and the
respondent with respect to the contract/agreement dated
29.11.2018. That the respondent herein original claimant
initiated the proceedings under Section 9 of the Arbitration Act
before the learned Additional District Judge, Visakhapatnam
seeking interim injunction against the encashment of
Performance Bank Guarantee and forfeiture of security deposit.
The said application came to be allowed by the learned
Additional District Judge vide order dated 06.11.2019
restraining the appellants herein from forfeiting security deposit
for period of six months except on the special circumstances.
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4. That thereafter the respondent vide letter dated 01.12.2019
requested the appellant to constitute the Arbitral Tribunal
raising five claims. It appears that in terms of the Arbitration
Agreement, arbitration proceedings were initiated by the
appellants by appointing an arbitrator to adjudicate the dispute
between the parties. That the Arbitrator issued notices calling
upon the parties to submit their respective claims. The
respondent herein sought time vide letter dated 02.04.2020 for
filing the claim in view of Covid19 Pandemic. The Arbitrator
adjourned the proceedings to 03.04.2020. Instead of submitting
the claim, vide letter dated 01.09.2020 the respondent
questioned the validity of arbitral tribunal. Thereafter the
respondent filed the Arbitration Petition No.10 of 2021 before the
High Court of Orissa at Cuttack under Section 11(6) of the Act
seeking appointment of an Arbitrator. The said application was
opposed by the appellants relying upon Section 42 of the
Arbitration Act and it was the case on behalf of the appellants
that in view of Section 42 of the Arbitration Act, the application
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under Section 11(6) of the Act shall lie before the High Court of
Andhra Pradesh at Amaravati as the respondent itself earlier
filed Section 9 application before the Court at Vishakhapatnam.
It was also submitted on behalf of the appellants that procedure
dated 16.11.2016 upon which reliance has been placed by the
respondent was superseded by GCC issued by Railway Board in
November, 2018. Despite the above jurisdictional issue raised
and without addressing on the jurisdiction of the Orissa High
Court, by the impugned judgment and order the High Court of
Orissa at Cuttack has appointed the Arbitrator solely by
observing that since the appellant, East Coast Railways in
principle, is not opposing the appointment of an Arbitrator there
is little purpose served in relegating the respondent (original
petitioner) to the appropriate High Court as that will only delay
the adjudication of the disputes.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Orissa at
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Cuttack, the original respondent – General Manager – East Coast
Railway has preferred the present appeal.
6. We have heard Shri K.M. Natraj, learned ASG appearing on
behalf of the appellants and Shri Amit Dubey, learned Counsel
appearing on behalf of the respondent. We have gone through
the impugned judgment and order passed by the High Court. A
specific objection was raised by the appellant herein before the
High Court on the entertainability and/or maintainability of the
application under Section 11(6) of the Arbitration Act before the
Orissa High Court. Reliance was placed on Section 42 of the
Arbitration Act and it was submitted on behalf of the appellants
that as the respondent claimant had initiated proceedings
under Section 9 of the Arbitration Act in the Court at
Vishakhapatnam, only the High Court of Andhra Pradesh at
Amaravati would have jurisdiction to entertain the application
under Section 11(6) of the Act. Without deciding the said issue
which goes to the root of the jurisdiction of the High Court of
Orissa at Cuttack, the said High Court by the impugned order
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has entertained the application under Section 11(6) of the Act
and has appointed the sole arbitrator by observing that since the
appellants – East Coast Railway, in principle, has not opposed
the appointment of an arbitrator, there is little purpose served in
relegating the original petitioner to the concerned High Court as
that will only delay the adjudication of the disputes. The
appellants might not have opposed the appointment of an
arbitrator (though the fresh appointment of an Arbitrator was
also opposed by the appellants herein) by that itself it will not
confer the jurisdiction upon the High Court if otherwise, the
High Court had no jurisdiction.
7. Heavy reliance is/was placed on Section 42 of the
Arbitration and Conciliation Act, 1996 which reads as under:
“42. Jurisdiction. Notwithstanding anything
contained elsewhere in this Part or in any other
law for the time being in force, where with respect
to an arbitration agreement any application under
this Part has been made in a Court, that Court
alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications
arising out of that, agreement and the arbitral
proceeding shall be made in that Court and in no
other Court.”
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7.1 It is not in dispute that before filing an application under
Section 11(6) of the Act before the High Court of Orissa at
Cuttack, the respondent – claimant moved an application before
the Court at Visakhapatnam under Section 9 of the Arbitration
Act. In that view of the matter considering Section 42 of the
Arbitration Act, the High Court of Andhra Pradesh at Amravati
alone would have jurisdiction to decide the subsequent
applications arising out of the Contract Agreement and the
further arbitral proceedings shall have to be made in the High
court of Andhra Pradesh at Amaravati alone and in no other
court. In that view of the matter the High Court of Orissa at
Cuttack has committed a serious error in entertaining the
application under Section 11(6) of the Act before it and
appointing the sole arbitrator.
8. In view of the above and for the reason stated above, the
present Appeal Succeeds. The impugned judgment and order
passed by the High Court of Orissa at Cuttack in Arbitration
Petition No.10 of 2021 and appointing the sole arbitrator is
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hereby quashed and set aside solely on the ground that the High
Court of Orissa at Cuttack would have no jurisdiction to
entertain the application under Section 11(6) of the Act with
respect to the contract agreement for which the respondent
claimant earlier initiated the arbitration proceedings under
Section 9 of the Arbitration Act in the Court at Vishakhapatnam.
Present Appeal is accordingly Allowed. However, it is observed
that it will be open for the respondent claimant to submit/move
an application under Section 11(6) of the Act before the
competent High Court having jurisdiction namely the High Court
of Andhra Pradesh at Amaravati and if such an application is
made before the High Court of Andhra Pradesh at Amaravati
within a period of four weeks from today, the same be dealt with
and considered in accordance with law and on its own merits at
the earliest.
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The Present Appeal is Allowed to the aforesaid extent.
However, in the facts and circumstances of the case, there shall
be no order as to costs.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B. V. NAGARATHNA)
New Delhi,
July 22, 2022