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Delhi High CourtIndian Cases

Damayanti Builders vs Union Of India (Uoi) on 28 November 2003

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Delhi High Court
Damayanti Builders vs Union Of India (Uoi) on 28 November, 2003
Equivalent citations: 2003(3)ARBLR530(DELHI), 108(2003)DLT694, 2004(72)DRJ130, 2004(1)RAJ300
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT

S.K. Mahajan, J.

1. This application is filed by the appellant for condensation of 14 months delay in filing the appeal against the impugned order passed by the learned Additional District Judge whereby the application of the respondent under Section 34 of the Arbitration Act challenging the award of the Arbitrator was allowed and the award was set aside. It is contended in the application that the appellant was not served with the notice of the application of the respondent and he was also not aware of the pendency of the proceedings before the Additional District Judge. It is submitted that immediately on coming to know of the order having been passed by the learned Additional District Judge steps were taken to file appeal in this Court and there was thus sufficient cause for condensation of delay in filing the appeal. Reply to the application is filed by the respondent and the averments made in the application are denied. I may have closely scruntinised, the application of the appellant for condensation of delay, however, as one of the points taken in appeal against the impugned order is that the learned Additional District Judge did not have jurisdiction to entertain the application under Section 34 of the Arbitration Act because of a bar under Section 42 of the Act. I have also decided to hear the parties on merits. The contention of learned counsel for the appellant is that since the arbitrator was appointed by the High Court on an application filed by the appellant under Section 11 of the Arbitration and Conciliation Act by virtue of the provisions of Section 42 of the Act any subsequent application arising out of that agreement was required to be filed in this Court and in no other Court. It is submitted that as because of Section 42 of the Act, the application of the respondent under Section 34 was not maintainable and was without jurisdiction.

2. I find merits in the submissions made by learned counsel for the appellant. Since the question of the jurisdiction of the Trial Court has been raised, I with a view to do substantial justice between the parties allow the application of the appellant and condone the delay in filing the appeal.

3. In a petition filed under Section 11(6) of the Arbitration and Conciliation Act, this Court by order dated 6.1.1999, appointed an Arbitrator to adjudicate the disputes between the parties. The Arbitrator now upon the reference made and published his award. The respondent was not satisfied with the award and he has, therefore, filed this application under Section 34 of the Act before the learned Additional District Judge. Notice of that application appears to have been issued to the appellant but as no one is appeared on his behalf, the Court proceeds ex-parte against the appellant and after hearing the respondent allowed his application under Section 34 of the Act and set aside the award. As already mentioned above, aggrieved by this award present application has been filed by the appellant. The only contention raised in this appeal is that since under Section 42 of the Act Delhi High Court alone had jurisdiction to entertain any subsequent application after appointment of the Arbitrator, by this Court the Court had no jurisdiction to entertain the application under section 34 of the Act. Under Section 42 of the Act notwithstanding anything contained as where in this Court or any other law only time being in force, where with respect to an arbitration agreement in application under this part has been made in a Court that this Court alone shall have jurisdiction over the arbitral proceedings and all subsequent proceedings arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. Section 11, 34 and 42 appear in para one of the Act. The appellant had made an application under Section 11 and the Arbitrator was appointed in those proceedings in this Court under section 11 of the Act. In view of the application having been made under Section 11 of the Act all subsequent applications arising out of the agreement or the arbitral proceedings were required to be made only in Delhi High Court and in no other Court. The application under Section 34, therefore, filed by the respondent for setting aside the award was not maintainable before the Additional District Judge and he had no jurisdiction to entertain such an application. Since the learned Additional District Judge did not have jurisdiction to entertain the application, in my view, the order passed by him on the application of the respondent and Section 34 of the Act cannot be sustained and is, accordingly, set aside. I, accordingly, allow this appeal and direct the application under Section 34 of the Arbitration Act filed by the respondent to be returned to it for presentation in Court.