Thursday, 21 July 2016

Whether S 9A of CPC is applicable to proceeding U/S 34 of Arbitration Act 1996?

As   indicated   above,   the   two   objections   on   the   ground   of
limitation as also on the ground of maintainability of the suit before the
Learned Principal District Judge, Nashik were raised by invoking Section
9A of the CPC. The question therefore arises is whether an application
under Section 9A of the CPC is maintainable in a proceedings filed under
Section 34 of the 1996 Act. It is trite that the 1996 Act is a self contained

Code   which   governs   the   procedure   for   arbitration   and   sets   out   the
remedies which are available to the parties. There is no provision in the
1996 Act which indicates that Section 9A of the CPC is applicable. The
Learned Counsel appearing for the Petitioners fairly conceded to the said
position. However, the Learned Counsel sought to place reliance on the
judgment of the Apex Court reported in AIR 2002 SC 2308 in the matter
of M/s. I.T.I. Vs. M/s. Siemens Public Communications Network Ltd.,
wherein the Apex Court has held that an order passed by the District Court
in an Appeal filed under Section 37 of the Arbitration and Conciliation Act
is revisable under Section 115 of the CPC. The Learned Counsel also
sought to  place  reliance   on   the  judgment of  a Division  Bench  of   the
Andhra Pradesh High Court reported in 2004(2) R.A.J. 659 in the matter
of B. Rama Swamy Vs. B. Ranga Swamy, wherein the Division Bench of
the Andhra Pradesh High Court held that the application for restoration of
a proceeding under Section 34 can be filed. The Division Bench observed
that the Civil Court has all the powers under the CPC to dispose of an
Appeal or a Petition filed under Section 34 of the CPC. In my view, the said
judgments  do not further  the  case  of the  Petitioners in  so far  as the
applicability of Section 9A is concerned. In so far as a proceeding or a
Petition under Section 34 of the said Act is concerned, the same is as and
by way of a remedy to a party aggrieved by the Award. There is nothing in

Section 34 or any other provision of the said Act to indicate that Section
9A   of   the   CPC   applies   and   that   a   plea   of   the   maintainability   of   the
application or proceeding under Section 34 can be raised. In so far as the
judgment of the Apex Court in M/s. I.T.I. (Supra) is concerned, the Apex
Court was concerned with a challenge to an order passed in an Appeal
filed under Section 37 of the 1996 Act and it is in the said context that the
Apex Court observed that remedy by way of a Civil Revision is not barred.
In so far as the judgment of the Division Bench of the Andhra Pradesh
High Court in B. Rama Swamy's case (Supra) is concerned, the facts in the
said case were that the Petition under Section 34 of the Arbitration and
Conciliation   Act   was   dismissed   for   default   and   the   issue   before   the
Division   Bench   of   the   Andhra   Pradesh   High   Court   was   whether   an
application for restoration is maintainable.  It is in the said facts that the
Division Bench of the Andhra Pradesh High Court held that the relevant
provisions of the CPC are applicable. However in so far as Section 9A is
concerned it gives an avenue to a party to question the maintainability of a
proceeding on the point of jurisdiction it therefore cannot be invoked
unless so provided. As indicated herein above there is nothing in the 1996
Act to indicate that the said provision applies to a Petition filed under
Section 34. Hence the objection on the ground of limitation would have to
be considered at the hearing of the Petition under Section 34. In my view

the applications Exhs.12, 13 and 14 filed under Section 9A were therefore
not maintainable and since the applications are not maintainable, the
adjudication pursuant thereto would be of no consequence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2379 OF 2011
 Hariprasad Mohanlal Soni, 
Versus
Malegaon Municipal Corporation, 
CORAM  :  R.M. SAVANT, J.
DATE      :  24th FEBRUARY, 2015
Citation:AIR 2016 Bom178

1. The above Petitions filed under Article 227 of the Constitution

of India take exception to three identical orders all dated 18th November,
2010 passed by the Learned Principal District Judge, Nashik, by which
orders the preliminary objection raised by the Petitioners as regards the
maintainability of the Petitions filed under Section 34 of the Arbitration
and Conciliation Act, 1996 (For the sake of brevity referred to as the
“1996   Act”)   came   to   be   overruled   and   the   Learned   Principal   District
Judge, Nashik rejected preliminary objections raised vide Exh.12, 13 and
14. 
2. Having regard to the nature of the order to be passed and the
directions  to  be   issued,  it  is  not  necessary  to  burden   this  order   with
unnecessary details. Suffice it to state that an Awards came to be passed
by the Learned Arbitrator to whom a reference was made in the suits field
by the parties for recovery of the  amounts due from each other. The
Petitioners filed the suit against the Respondent Municipal Corporation,
who   had   at   the   relevant   time   was   a   Municipal   Council,   whereas   the
Respondent Municipal Corporation filed suit against the Petitioners. The
Awards passed by the Learned Arbitrator was filed in the District Court for
a decree to be passed in terms thereof which was a procedure applicable
under the Arbitration and Conciliation Act, 1940. A decree accordingly
came to be passed by the District Court. The said decree came to be passed
by the District Court in respect of the three Awards passed by the Learned

Arbitrator. The  said decree  came to be  challenged by the  Respondent
Municipal Corporation by filing three First Appeals in this Court being
First Appeal Stamp No.9654 of 2009, First Appeal Stamp No.9669 of 2009
and First Appeal Stamp No.9666 of 2009. The delay in filing the First
Appeals was condoned. The said First Appeals were thereafter heard by a
Division Bench of this Court. The Division Bench held that having regard
to   the   fact   that   the   proceedings   which   were   commenced   before   the
Learned   Arbitrator,   from   the   appointment   of   the   Arbitrator   to   the
conclusion of the proceedings being under the 1996 Act. The course of
action followed by the Corporation in filing the First Appeals was not
permissible. The Division Bench observed that the Awards passed by the
Arbitrator had to be challenged before the appropriate forum under the
1996 Act and that there was no requirement to pass a decree in terms of
the Awards. The Division Bench accordingly by its judgment and order
dated 10th June, 2009 allowed the Appeals setting aside the decrees and
relegated the parties to the remedy which they were to adopt under the
1996 Act to raise a challenge to the Award or Awards. The Division Bench
has specifically clarified in its order that all legal rights and contentions of
the parties are left open. 
3. It is pursuant to the order passed in the First Appeals that the
Petitions   under   Section   34   of   the   1996   Act   came   to   be   filed   by   the

Respondent Municipal Corporation challenging the three Awards passed
by the Learned Arbitrator. It is in the said proceedings that the instant
applications   being   Exhs.12,   13   and   14   were   filed   by   the   Petitioner
invoking   Section   9A   of   the   Civil   Procedure   Code   on   the   ground   of
limitation as well as on the ground of jurisdiction. Both the objections
have been turned down by the Learned Principal District Judge by the
impugned order. In so far as the issue of limitation is concerned, the
Learned Principal District Judge having regard to the fact  that the delay
in filing the Appeals was condoned, held that the limitation would have to
be counted from the day when the delay was condoned as also taking into
consideration the fact that the First Appeals were dismissed on the ground
that same were not maintainable, the delay in the instant case would
therefore   have   to   be   computed   having   regard   to   Section   14   of   the
Arbitration and Conciliation Act, 1996. In so far as the jurisdiction of the
Learned Principal District Judge, Nashik is concerned, having regard to
Section 2E of the 1996 Act which defines “Court” the Learned Principal
District Judge came to a conclusion that the Petitions filed under Section
34 in the District Court at Nashik are maintainable. As indicated above, it
is the said three identical orders dated 18th  November, 2010 which are
taken exception to by way of the above Petitions. 
4. The   Learned   Counsel   for   the   Petitioners   Shri.   R.   D.   Soni

sought to make submissions to buttress the case of the Petitioners that the
adjudication of the point of limitation has not been done in its proper
perspective.   The   Learned   Counsel   would   contend   that   since   all   the
contentions of the parties were kept open the issue of limitation ought to
have been considered by the Learned Principal District Judge de­hors the
fact that delay in filing the First Appeals was condoned. In so far as the
maintainability of the  Petitions in the District Court is concerned, the
Learned Counsel on instructions fairly concedes that the Petitioner would
not press the said point. 
5. Per   contra   the   Learned   Counsel   Shri.   R.   B.   Raghuvanshi
appearing for the Respondent Municipal Corporation would support the
impugned order and would contend that the order passed by the Learned
Principal District Judge on the said two preliminary issues does not merit
interdiction at the hands of this Court in its Writ Jurisdiction. 
6. As   indicated   above,   the   two   objections   on   the   ground   of
limitation as also on the ground of maintainability of the suit before the
Learned Principal District Judge, Nashik were raised by invoking Section
9A of the CPC. The question therefore arises is whether an application
under Section 9A of the CPC is maintainable in a proceedings filed under
Section 34 of the 1996 Act. It is trite that the 1996 Act is a self contained

Code   which   governs   the   procedure   for   arbitration   and   sets   out   the
remedies which are available to the parties. There is no provision in the
1996 Act which indicates that Section 9A of the CPC is applicable. The
Learned Counsel appearing for the Petitioners fairly conceded to the said
position. However, the Learned Counsel sought to place reliance on the
judgment of the Apex Court reported in AIR 2002 SC 2308 in the matter
of M/s. I.T.I. Vs. M/s. Siemens Public Communications Network Ltd.,
wherein the Apex Court has held that an order passed by the District Court
in an Appeal filed under Section 37 of the Arbitration and Conciliation Act
is revisable under Section 115 of the CPC. The Learned Counsel also
sought to  place  reliance   on   the  judgment of  a Division  Bench  of   the
Andhra Pradesh High Court reported in 2004(2) R.A.J. 659 in the matter
of B. Rama Swamy Vs. B. Ranga Swamy, wherein the Division Bench of
the Andhra Pradesh High Court held that the application for restoration of
a proceeding under Section 34 can be filed. The Division Bench observed
that the Civil Court has all the powers under the CPC to dispose of an
Appeal or a Petition filed under Section 34 of the CPC. In my view, the said
judgments  do not further  the  case  of the  Petitioners in  so far  as the
applicability of Section 9A is concerned. In so far as a proceeding or a
Petition under Section 34 of the said Act is concerned, the same is as and
by way of a remedy to a party aggrieved by the Award. There is nothing in

Section 34 or any other provision of the said Act to indicate that Section
9A   of   the   CPC   applies   and   that   a   plea   of   the   maintainability   of   the
application or proceeding under Section 34 can be raised. In so far as the
judgment of the Apex Court in M/s. I.T.I. (Supra) is concerned, the Apex
Court was concerned with a challenge to an order passed in an Appeal
filed under Section 37 of the 1996 Act and it is in the said context that the
Apex Court observed that remedy by way of a Civil Revision is not barred.
In so far as the judgment of the Division Bench of the Andhra Pradesh
High Court in B. Rama Swamy's case (Supra) is concerned, the facts in the
said case were that the Petition under Section 34 of the Arbitration and
Conciliation   Act   was   dismissed   for   default   and   the   issue   before   the
Division   Bench   of   the   Andhra   Pradesh   High   Court   was   whether   an
application for restoration is maintainable.  It is in the said facts that the
Division Bench of the Andhra Pradesh High Court held that the relevant
provisions of the CPC are applicable. However in so far as Section 9A is
concerned it gives an avenue to a party to question the maintainability of a
proceeding on the point of jurisdiction it therefore cannot be invoked
unless so provided. As indicated herein above there is nothing in the 1996
Act to indicate that the said provision applies to a Petition filed under
Section 34. Hence the objection on the ground of limitation would have to
be considered at the hearing of the Petition under Section 34. In my view

the applications Exhs.12, 13 and 14 filed under Section 9A were therefore
not maintainable and since the applications are not maintainable, the
adjudication pursuant thereto would be of no consequence. The impugned
orders dated 18th November, 2010 are therefore required to be set aside on
the ground that the applications Exh.12, 13 and 14 are not maintainable.
In view of the setting aside of the impugned orders, it would be in the
pending Petitions under Section 34 that the issue of limitation would be
adjudicated by the Learned Principal District Judge or the Learned District
Judge to whom the matters are assigned. The said exercise would have to
be carried out de­novo uninfluenced by the earlier adjudication by the
impugned order. Needless to state that the contentions of the parties on
merits are kept open for being urged before the Learned Principal District
Judge, who would consider the same. In so far as the maintainability of
the Petitions before the District Court, Nashik is concerned, as indicated
above the Learned Counsel for the Petitioners has fairly stated that the
petitioners would not press the said issue as regards the jurisdiction of the
District Court, Nashik to entertain the Petitions under Section 34. Hence,
what remains is only the issue of limitation and the other issues that may
arise at the hearing of the Petitions filed under Section 34. In view of the
fact that the above Writ Petitions were pending in this Court since the year
2011 and since the Petitions filed under Section 34 were stayed by virtue

of the interim order in the above Writ Petitions. In my view, it would be
just and proper to direct the Learned District Judge, Nashik or any other
Learned District Judge to whom the Petitions are assigned to hear and
decide the same latest by 30th June, 2015. Rule in the above Petitions to
accordingly stand disposed of in the aforesaid terms. 
[R.M. SAVANT, J]

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