Vide Government Order No.Rev/Haj and Auqaf-6/85 dated 18.01.1999 the Chief Engineer (RandB) Department Jammu allotted contract for construction of Haj House at Rail Head Complex, Jammu to the respondents. Agreement was executed between the Government of Jammu and Kashmir and the respondents. As claimed respondents completed construction work of plinth area, two storyed building and shuttering up to 3rd storey block A and half footing for the block B. Because of alleged non-disbursement of payments dispute arose between the appellant and the respondents and in sequel thereto a legal notice was issued by the respondents for reference of the dispute to the sole arbitrator in terms of clause 35 of the Special Condition forming part of the contract. The legal notice did not evoke any response and resultantly the respondents approached the Hon’ble Chief Justice of this Court under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 (for short ‘the Act’) for appointment of an Arbitrator. Sh. K.K.Gupta, (Retired) Chief Engineer was appointed as Arbitrator. The order of appointment of aforementioned Arbitrator was modified and in terms of order dated 23.11.2007, Sh. S.K.Gupta was appointed as Arbitrator. The Arbitrator passed an award on 31.01.2010. The appellant filed application under Section 34 of the Act, wherein prayer was made for setting aside the award. Respondents filed application seeking dismissal of the application filed under Section 34 of the Act on the ground that arbitrator having been appointed by Chief Justice, the application seeking setting aside of award, in view of mandate contained in Section 42 of the Act was to be filed before High Court, and District Court lacked jurisdiction to entertain and hear the same. Learned Additional District Judge, Jammu vide its order dated 10.01.2012 allowed the application of the respondents and dismissed the application of the appellants filed under Section 34 of the Act. It is this order which is called in question in this appeal.
Mr. V. Bhat, learned counsel for the appellant submitted that the order impugned in the appeal is illegal and warrants to be set aside. Learned counsel submitted that in terms of Section 2(e) of the Act, the Court of Additional District Judge is competent to try and hear the application filed under Section 34 of the Act. Learned counsel further submitted that the High Court of JandK is a Court of original civil jurisdiction and the Court of District Judge/Additional District Judge is also the Court of original civil jurisdiction. Learned counsel submitted that the application for setting aside the award in terms of Section 34 of the Act is required to be filed in the Court. Learned counsel submitted that the application has been filed in the proper Court and dismissal of same by the Court of Additional District Judge is illegal. Learned counsel further submitted that the Chief Justice or his nominee is not Court in terms of the provisions of the Act, as such, application for setting aside the award is not to be filed before the Chief Justice or his nominee and/or before High Court, as that is not the mandate of Section 42 of the Act. Learned counsel accordingly prayed for setting aside of the impugned order.
Mr. R.K.Gupta, learned counsel for the respondents submitted that the Chief Justice while appointing an Arbitrator is discharging judicial functions and as such is Court, thus, application under Section 34 of the Act has to be filed before the Chief Justice/High Court as the initial application for appointment of Arbitrator was filed before the said judicial authority. Learned counsel submitted that this is mandate of Section 42 of the Act. Learned counsel in order to bring home his point, besides referring to the various provisions of the Act, also referred to and relied upon the judgment of the Hon’ble Supreme Court titled Jindal Vijaynagar Steel (Appellant) v. Jindal Prazair Oxygen Co. Ltd, reported in 2006(11) SCC 521, case titled SBP and Co. (Appellant) v. Patel Engineering Ltd and Another, reported in (2005) 8 SCC 618 and case titled Ranjita Apartment Owners’ Association and Others v. Prabir Kumar Chakraborty, reported in AIR 2011 Calcutta 82, case titled the Executive Engineer v. Sh. Ram Construction Co., reported in 2010(4) Arb. LR 314 (Delhi) (DB). Learned counsel extensively referred to various paragraphs of the Hon’ble Supreme Court judgment in SBP and Co. case. Mr. Gupta submitted that since the Chief Justice in terms of Section 11(6) of the Act has appointed the Arbitrator, he being the judicial authority and it having been decided by the seven Judges Bench of the Supreme Court in SBP and Co. case that the Chief Justice in appointing the Arbitrator is discharging the judicial functions, and the expression being used in sense of the collectivity of the Judges of this Court, as such, the Chief Justice while appointing the Arbitrator functions as a Court and in view of plain language of Section 42 of the Act application for setting aside of award has to be filed before the High Court. Learned counsel also submitted that amongst few High Courts of the country, High Court of Jammu and Kashmir also exercises civil original jurisdiction and in view of Section 2(e) of the Act is competent to hear an application under Section 34 of the Act. Learned counsel referred to the judgment of the Hon’ble Supreme Court in Jindal Vijaynagar case only to show that the High Court of Jammu and Kashmir is exercising civil original jurisdiction. Learned counsel referred to the judgment of the Calcutta High Court in Ranjita’s case to support his argument. It has been held in that case, when the Arbitrator is appointed under Section 11(6) by the Chief Justice, subsequent application seeking setting aside of the award could not be filed before the District Judge. In case decided by the Division Bench of Delhi High Court in Executive Engineer’s case the same proposition of law has been laid.
Learned counsel accordingly prayed for dismissal of the appeal.
In order to appreciate arguments advanced at Bar, it is deemed appropriate to take notice of the relevant provisions of law: Jammu and Kashmir Arbitration and Conciliation Act, 1997.
2(e) ‘Court’ means the Principal Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Causes;
8. Power to refer parties to arbitration where there is an arbitration agreement
(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 9. Interim measures etc., by Court
A party may before or during arbitral proceedings or at any time after the making of the arbitral award but before it becomes decree of a Court, apply to a Court.
(Emphasis supplied)
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely;”
(a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute and arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injection or the appointment of a receiver;
(e) such other interim measure of protection as may appear to be court to be just and convenient and the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceedings before it.
“11(6). Whereunder an appointment procedure agreed upon by the parties,-
(a) a party fails to act as required under that procedure; or
(b) the parties, of the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure;
a party may request the Chief Justice of the High Court or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(Emphasis supplied)
17. Interim measures ordered by arbitral tribunal:
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section(1).
(Emphasis supplied)
27. Court assistance in taking evidence
(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may apply to the Court for assistance in taking evidence. (Emphasis supplied)
(2) The application shall specify-
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular.-
(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject matter of the testimony required;
(ii) the description of any document to be produced or property to be inspected..”
33. Correction and interpretation of award; additional award
(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties,-
(a) a Party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;
(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award”.
(Emphasis supplied)
RECOURSE AGAINST ARBITRAL AWARD
34. Application for setting aside arbitral award
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and sub-section (3).
(2) An Arbitral award may be set aside by the Court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or..” (Emphasis supplied)
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 proceedings shall be made in that Court and in no other Court.
(Emphasis supplied)
Civil Courts Act
Svt. 1977(1920 A.D)
11.Extraordinary original jurisdiction of High Court
The High Court has and shall have such power to remove and to try and determine as a Court of extraordinary original jurisdiction any suit being or falling within the jurisdiction of any Court subject to its superintendence when the High Court shall think proper to do so, either on the agreement of the parties to that effect or for purposes of justice. (Emphasis supplied)
13. Classes of Courts
Besides the High Court, the Courts of Small Causes established under the Small Cause Court Act, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:-
(1) the Court of the District Judge, also called the District Court;
(2) the Court of the Additional Judge;
(3) the Court of the subordinate Judge; and
(4) the Court of the Munsiff.
16. Additional Judges
(1) When the business pending before any District Judge requires the aid of an additional Judge or Judges for its speedy disposal,[the Government] may [on the recommendations of the High Court] appoint such Additional Judge or Judges as may be necessary. (2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge.
Clause 10 of Letters Patent:
CIVIL ORIGINAL JURISDICTION OF THE HIGH COURT
10. And we do hereby ordain that the said High Court of judicature shall have jurisdiction to hear and determine any suit or original proceeding of which the value is not less than rupees ten thousand where the said suit or original proceeding relates to any right, title or obligation rising in the towns of Srinagar and Jammu or anywhere else within our State and notwithstanding anything contained in any section of the code of civil procedure every such suit or proceeding shall be instituted in the said High Court.
Section 93 of Constitution of JandK
“93. Constitution of High Court
(1) There shall be a High Court for the State, consisting of a Chief Justice and two or more other Judges.
(2) The High Court exercising jurisdiction in relation to the State immediately before the commencement of this Constitution shall be the High Court for the State.”
Paragraphs 5, 6, 7, 13, 15, 18 and 19 of SBP and Co. case, reflecting the majority view are taken note of:-
“....5. Section 7 of the Act read with Section 2 (b) defines an arbitration agreement. Section 2(h) defines ‘party’ to mean a party to an arbitration agreement. Section 4 deals with waiver of objections on the part of the party which has proceeded with an arbitration, without stating his objections referred to in the selection, without undue delay. Section 5 indicates the extent of judicial intervention. It says that notwithstanding anything contained in any other law for the time being in force, in matters governed by part I, no judicial authority shall intervene except where so provided in part I. The expression ‘judicial authority’ is not defined. So, it has to be understood as taking in the courts or any other judicial fora. Section 7 defines an arbitration agreement and insists that it must be in writing and also explains when an arbitration agreement could be said to be in writing. Section 8 confers power on a judicial authority before whom an action is brought in a matter which is the subject of an arbitration agreement, to refer the dispute to arbitration, if a party applies for the same. Section 9 deals with the power of the Court to pass interim orders and the power to give interim protection in appropriate cases. It gives a right to a party, before or during arbitral proceedings or at any time after the making of the arbitral award but before its enforcement in terms of Section 36 of the Act, to apply to a court for any one of the orders specified therein. Chapter III of part I deals with composition of Arbitral Tribunals. Section 10 gives freedom to the parties to determine the number of arbitrators but imposes a restriction that it shall not be an even number. Then comes Section 11 with which we are really concerned in these appeals. (Emphasis supplied)
“6..Sub-Section (7) gives finality to the decision rendered by the Chief justice or the person or institution designated by him when moved under sub-section or the person or institution designated by him when moved under sub-section (4) or sub-section (5) or sub-section (6) of Section 11. Sub-section (8) enjoins the Chief Justice or the person or institution designated by him to keep in mind the qualifications required for an arbitrator by the agreement of the parties, and other considerations as are likely to secure the appointment of an independent and impartial arbitrator. Sub-Section (9) deals with the power of the Chief Justice of India or a person or institution designated by him to appoint the sole or the third arbitrator in an international commercial arbitration. Sub-section (10) deals with the Chief Justice’s power to make a scheme for dealing with matters entrusted to him by sub-section (4) or sub-section (5) or sub-section (6) of Section 11. Sub-section (11) deals with the respective jurisdiction of the Chief Justices of different High Courts who are approached with requests regarding the same dispute and specifies as to who should entertain such a request. Sub- Section (12) clause (a) clarifies that in relation to international arbitration, the reference in the relevant sub-sections to the ‘Chief Justice’ would mean the ‘Chief Justice of India’. Clause (b) indicates that otherwise the expression ‘Chief Justice’ shall be construed as a reference to the Chief Justice of the High Court within whose local limits the Principal Court is situated. ‘Court’ is defined under Section 2(e) as the Principal Civil Court of original jurisdiction in a district. (Emphasis supplied)
“7.
“.Chapter VI containing Sections 28 to 33 deals with making of the arbitral award and termination of the proceedings. Chapter VII deals with recourse against an arbitral award. Section 34 contemplates the filing of an application for setting aside an arbitral award by making an application to the Court as defined in Section 2(e) of the Act. Chapter VIII deals with finality and enforcement of arbitral awards.” (Emphasis supplied)
13. It is common ground that the Act has adopted the UNCITRAL Model Law on International Commercial Arbitration, but at the same time it has made some departures from the Model Law. Section 11 is in the place of Article 11 of the Model Law. The Model Law provides for the making of a request under Article 11 to ‘the court or other authority specified in Article 6 to take the necessary measure’. The words in Section 11 of the Act are ‘the Chief Justice or the person or institution designated by him’. The fact that instead of the court, the powers are conferred on the Chief Justice, has to be appreciated in the context of the statute. ‘Court’ is defined in the Act to be the Principal Civil Court of original jurisdiction of the district and includes the High Court in exercise of its ordinary original civil jurisdiction. The Principal Civil Court of original jurisdiction is normally the District Court.
The High Courts in India exercising ordinary original civil jurisdiction are not too many. So in most of the States the court concerned would be the District Court. Obviously, Parliament did not want to confer the power on the District Court, to entertain a request for appointing an arbitrator or for constituting an Arbitral Tribunal under Section 11 of the Act. It has to be noted that under Section 9 of the Act, the District Court or the High Court exercising original jurisdiction, has the power to make interim orders prior to, during or even post-arbitration. It has also the power to entertain a challenge to the award that may ultimately be made. The framers of the statute must certainly be taken to have been conscious of the definition of ‘court’ in the Act. It is easily possible to contemplate that they did not want the power under Section 11 to be conferred on the District Court or the High Court exercising original Jurisdiction. The intention apparently was to confer the power on the highest judicial authority in the State and in the country, on the Chief Justices of the High Courts and on the Chief Justice of India. Such a provision is necessarily intended to add the greatest credibility to the arbitral process. The argument that the power thus conferred on the Chief Justice could not even be delegated to any other judge of the High Court or of the Supreme Court, stands negatived only because of the power given to designate another. The intention of the legislature appears to be clear that it wanted to ensure that the power under Section 11 (6) of the Act was exercised by the highest judicial authority in the State or in the country concerned. This is to ensure the utmost authority to the process of constituting the Arbitral Tribunal. (Emphasis supplied)
15. Normally a persona designata cannot delegate his power to another. Here, the Chief Justice of the High Court or the Chief Justice of India is given the power to designate another to exercise the power conferred on him under Section 11 (6) of the Act. If the power is a judicial power, it is obvious that the power could be conferred only on a judicial authority and in this case, logically on another Judge of the High Court or on a Judge of the Supreme Court. It is logical to consider the conferment of the power on the Chief justice of the High Court and on the Chief Justice of India as presiding Judges of the High Court and the Supreme Court and the exercise of the power so conferred, is exercise of judicial power/authority as presiding judges of the respective courts. Replacing of the word ‘court’ in the Model Law with the expression ‘Chief Justice’ in the Act, appears to be more for excluding the exercise of power by the District Court and by the Court as an entity leading to obvious consequences in the matter of the procedure to be followed and the rights of appeal governing the matter. The departure from Article 11 of the Model law and the use of the expression ‘Chief Justice’ cannot be taken to exclude the theory of its being an adjudication under Section 11 of the Act by a judicial authority. (Emphasis supplied)
18. It is true that the power under Section 11 (6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by courts in the arbitral process. Therefore, the power was conferred on the highest judicial authority in the country and in the State in their capacities as Chief Justices. They have been conferred the power or the right to pass an order contemplated by Section 11 of the Act. We have already seen that it is not possible to envisage that the power is conferred on the Chief Justice as persona designata. Therefore, the fact that the power is conferred on the Chief Justice, and not on the court presided over by him is not sufficient to hold that the power thus conferred is merely an administrative power and is not a judicial power. (Emphasis supplied)
19. It is also not possible to accept the argument that there is an exclusive conferment of jurisdiction on the arbitral Tribunal to decide on the existence or validity of the arbitration agreement. Section 8 of the Act contemplates a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, on the terms specified therein, to refer the dispute to arbitration. A judicial authority as such is not defined in the Act. It would certainly include the court as defined in Section 2(e) of the Act and would also, in our opinion, include other courts and may even include a special tribunal like the Consumer Forum (see Fair AIR Engineers (P) Ltd. v. N.K.Modi). When the defendant to an action before a judicial authority raises the plea that there is an arbitration agreement and the subject ‘matter of the claim is covered by the agreement and the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause . It is difficult to contemplate that the judicial authority has also to act mechanically or has merely to see the original arbitration agreement produced before it, and mechanically refer the parties to arbitration. Similarly, Section 9 enables a court, obviously, as defined in the Act, when approached by a party before the commencement of an arbitral proceeding, to grant interim relief as contemplated by the Section. When a party seeks an interim relief asserting that there was a dispute liable to be arbitrated upon in terms of the Act, and the opposite party disputes the existence of an arbitration agreement as defined in the Act or raises a plea that the dispute involved was not covered by the arbitration clause, or that the court which was approached had no jurisdiction to pass any order in terms of Section 9 of the Act, that court has necessarily to decide whether it has jurisdiction, whether there is an arbitration agreement which is valid in law and whether the dispute sought to be raised is covered by that agreement. There is no indication in the Act that the powers of the court are curtailed on these aspects. On the other hand, Section 9 insists that once approached in that behalf, ‘the court shall have the same power for making orders as it has for the purpose of and in relation to any proceeding before it’. Surely, when a matter is entrusted to a civil court in the ordinary hierarchy of courts without anything more, the procedure of that court would govern the adjudication”. (Emphasis supplied)
Before proceeding further it is deemed appropriate to place on record that provisions of Arbitration and Conciliation Act 1997 (State) are in pari materia with Arbitration and Conciliation Act, 1996 (Central).
The scheme reflected in the Act is unique in its contours and features. Different expressions are used by the legislature in the different provisions of law. Section 2(e) of the Act defines ‘Court’ to be a court of original jurisdiction in District and High Court in exercise of the ordinary original civil jurisdiction, having jurisdiction to decide the question forming the subject matter of arbitration. The ‘Court’ does not mean any civil Court of a grade inferior to such principal Civil Court or any Court of small causes. In view of clause 10 of Letters Patent and section 11 of the Civil Courts Act, the High Court of JandK exercises ordinary original civil jurisdiction and is one amongst few High Courts of the Country which exercise such jurisdiction. Section 8 of the Act of 1997 gives power to a judicial authority, before which an action is brought in a matter which is subject matter of arbitration agreement, to refer parties to arbitration, if a party so applies, but not later than when submitting his first statement on the substance of the dispute. Section 8 of the Act unveils the power of a judicial authority which is different than the Chief Justice or his nominee and who can refer parties to arbitration in a different situation, and other than the one in which Arbitrator can be appointed by the Chief Justice as is provided in Section 11(6) of the Act. In terms of Section 8 in a pending matter on the application of the parties, for resolution of their dispute, they can be referred to Arbitrator. This power conferred on the judicial authority in terms of Section 8 of the Act is in contradistinction to the power conferred on the Chief Justice in terms of Section 11(6) of the Act. The judicial authority, as referred to in Section 8 of the Act, can be a Court or any other authority which has to perform the judicial function in accordance with settled judicial norms. In terms of Section 11(6) on the request of a party the Chief Justice or his nominee can appoint an Arbitrator. Section 11(6), Section 17 and Section 33 provide for passing of orders at the request of the party. Section 17 authorises the Arbitral Tribunal to pass orders in accordance with the said provision at the request of a party. In contradistinction thereto, on the application of a party, under Section 9 interim measure can be taken by a Court. Similarly in terms of Section 27, the Arbitral Tribunal or a party with its approval has to file an application to the Court for assistance in taking evidence. In terms of (2) of Section 27, the application has to specify the particulars mentioned in (a), (b) and (c). Similarly Section 34 authorises for filing of application before a Court, for seeking setting aside of an award. The legislatures in their wisdom have thus drawn a clear defining line and discerning difference between Section 11(6), 17 and 33, where the expression ‘request’ has been used and in Section 8, 9, 33 and 34 the expression ‘apply/application’ has been used. The legislature has consciously and with a definite design provided for making ‘request’ to an ‘Authority’, and ‘Application’ to a ‘Court’. The distinction so drawn in different provisions of the Act, as afore described has been done for attaining a definite purpose. The Act provides two situations where the parties can be referred for arbitration. Section 8 of the Act as already stated provides for referring the parties in a pending matter to Arbitrator. This can be done only when an application is made by the party to Court, whereas, in terms of Section 11(6) at the request of a party the Chief Justice may appoint Arbitrator for resolution of a dispute between the parties. Section 42 of the Act provides that where with respect to an arbitration agreement any application under this part is made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent application arising out of that agreement and arbitral proceedings shall be made in that Court and no other Court. Assume a situation that application under Section 9 is made to Principal Court of original jurisdiction in the District before arbitral proceedings are initiated, can it be countenanced in law on the interpretation of Section 42 as is sought to be placed by the learned counsel for the respondents, that all subsequent applications are to be filed before the same Court which would include even for appointment of an Arbitrator. Such an interpretation of Section 42 would destroy Section 11(6) of the Act, inasmuch as, the power of the Chief Justice to appoint an Arbitrator would indirectly be taken away. This cannot be the intendment of the statute. As already stated a specific distinction has been made by the legislatures in Section 11(6), Section 17 and 33 where expression ‘request’ has been used and in other provisions viz. 8, 9, 17, 34 and 42 expression ‘apply/application’ has been used. A party in terms of Section 11(6) has only to make request to the Chief Justice for appointment of an Arbitrator. Similarly, in terms of Section 17, the arbitral Tribunal at the request of a party may issue orders to take any interim measures of protection as it may consider necessary in reference to the subject matter of the dispute. Similarly, in terms of Section 33(1), (a) and (b) request is to be made by a party to the Arbitral Tribunal to correct or give an interpretation of a specific point or part of the award. The request in terms of these provisions of the Act has to be made to the defined authorities viz. Chief Justice or the Arbitral Tribunal, whereas, application in terms of Section 9, 27 and 34 are to be made to a Court. Section 42 when it provides for filing of an application in a Court, by no amount of reasoning and by no stretch of plain or legal interpretation it can be said that it brings within its fold Section 11(6). Section 2 up to Section 43 are covered by part I of the Act. Section 11 is a complete code in itself and provides for procedure for making request to the Chief Justice and for seeking appointment of an Arbitrator. After the arbitrator is appointed, by legislative dictum the role of Chief Justice comes to an end. When a request is made to the Chief Justice, may be by filing an application, for appointment of an Arbitrator, it would not mean that the application has been made to the Court. Section 42 would not thus mean that the application seeking setting aside of the award Under Section 34 is to be filed before the Chief Justice/High Court.
The Letters Patent and Section 93 of Constitution of Jammu and Kashmir provide for constitution of High Court for the State. It further provides that High Court shall be consisting of a Chief Justice and two or more Judges. The Letters Patent and Constitution thus itself describe the composition of High Court. On the plain language of aforementioned provisions, the High Court does not consist of Chief Justice alone. The Chief Justice thus is not High Court. The Constitution by its dictum has given only precedence to Chief Justice over other judges, who collectively constitute the High Court. Section 11(6) has conferred power on Chief Justice as a singular entity and not on High Court. The action taken by Chief Justice under Section 11(6) is not thus action taken and orders passed by High Court. The application under Section 34 in terms of mandate contained in Section 42 is not to be filed only before High Court. The submissions made by learned counsel for respondents cannot be accepted for yet another reason, as accepting same would render Section 2(e) of the Act partially superfluous and otiose, literally deleting the expression ‘Court of original jurisdiction in the District’ from the said provision.
The Hon’ble Supreme Court in SBP and Co. case has specifically stated at para 7 that any application under Section 34 for setting aside of an Arbitral Award can be filed before the Court as defined in Section 2(e) of the Act. The Hon’ble Supreme Court at para 13 of the said judgment has further stated that Model law provides for making a request under Section 11 to the Court or other authority specified in Article 6 to take the necessary measures, whereas in Section 11 of the Act the expression ‘Chief Justice or the nominee’ designated by him has been used. The Hon’ble Supreme Court has specifically expressed that power in terms of Section 11(6) has not been conferred on the Court but on the Chief Justice. The purpose being to confer the power on the highest judicial authority of the State. The Hon’ble Supreme Court at para 15 has further elucidated the point and in para 18 has specifically made it clear that the power under Section 11(6) of the Act has not been conferred on the Supreme Court or on the High Court, but is conferred on the Chief Justice of India or the Chief Justice of the High Court. The Hon’ble Supreme Court in the same paragraph has underlined the need and purpose of not conferring the power of appointment of an arbitrator under Section 11(6) of the Act upon the Court but on the Chief Justice and main purpose brought to the surface is that the arbitration proceedings shall not become casualty due to procedural wranglings and by filing of appeals to different courts or challenging the order by filing writ petitions and consequent LPAs. Since in terms of Section 11(6) of the Act, the Chief Justice can nominate another Judge of the Court to deal with the request made for appointment of the arbitrator that is how reference has been made to the judgment of the Hon’ble Supreme Court in Supreme Court Advocates on Record Association v. Union of India (1993) 4 SCC 441 refer to paragraph 17 of SBP and Co case to further buttress the reasoning that expression ‘Chief Justice’ is used in the sense of collectivity of judges of the Supreme Court and High Court respectively but is not Court for the purpose of Section 11(6) of the Act.
The scheme of the Act itself strikes a distinction between Court and authority. The Hon’ble Supreme Court in SBP and Co's case was considering the issue, as to whether while appointing the arbitrator, the Chief Justice is performing Administrative functions or judicial functions, and after an elaborate discussion and reference to different provisions and judgments has specifically ruled that while considering the request for appointment of an Arbitrator the Chief Justice performs judicial functions. It has simultaneously also been held that it is the Chief Justice not the Court which is performing the duties under Section 11(6) of the Act. At para 7 in the case of SBP and Co. the Hon’ble Supreme Court has provided that Chapter VII deals with the recourse against arbitral award. Section 34 contemplates the filing of an application for setting aside of arbitral award by making application before the Court as defined in Section 2(e) of the Act. From the aforementioned discussion it becomes writ large on the face of the record that the Chief Justice while considering the request for appointment of Arbitrator is not the Court but is a judicial authority under the Act. Request is made to the Chief Justice for appointment of an Arbitrator and applications are made to the Court in terms of Section 8, 9, 27, 34 as also under section 42 of the Act. The statute itself has, thus, provided mechanism for seeking setting aside of the award by filing an application.
In view of the facts appearing and legal position obtaining in this case, it is held that District Court as defined in Section 2(e) read with Section 42 of the Act has jurisdiction to entertain an application under Section 34 of the Act and consequently the application filed by the appellant for seeking setting aside of the arbitral award is held to be competent and maintainable before the District Court.
For the aforementioned reasons, view propounded and law laid down by Delhi High Court in case titled the Executive Engineer v. Sh. Ram Construction Co., reported in 2010(4) Arb. LR 314 (Delhi) (DB) and Calcutta High Court in case titled Ranjita Apartment Owners’ Association and Ors v. Prabir Kumar Chakraborty, with respects, is not subscribed to and accordingly not followed.
The appeal is accordingly allowed and impugned order dated 10.01.2012 passed by Additional District Judge, Jammu in case Administrative Auqaf Islamia Wakaf, Residency Road Jammu v. M/s R. S. Construction Engineers and Ors, is set aside. The learned Court to deal with the matter in accordance with law. Record be send back.