Holding

A petition under Section 34 must be filed before the principal civil court of original jurisdiction (or the High Court in its ordinary original civil jurisdiction) as defined in Section 2(1)(e), and an appeal under Section 37 is not maintainable where the Section 34 petition is dismissed for lack of jurisdiction.

Summary

Hindustan Copper Ltd challenged an arbitration award dated 28 September 2006 by filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996. The Single Judge of the Jharkhand High Court dismissed the petition as not maintainable, holding that it should have been filed before the appropriate court defined in Section 2(1)(e). An appeal under Section 37 was also dismissed on the same ground. The Supreme Court held that a Section 34 petition must be filed before the principal civil court of original jurisdiction in the district, or the High Court exercising its ordinary original civil jurisdiction, as per the definition of "Court" in Section 2(1)(e). Since the petition was dismissed on maintainability and not on the merits, the conditions for a Section 37 appeal were not satisfied. Consequently, the appeal was disposed of and the petition was remitted to the competent civil court (District Judge, East Singhbhum) for adjudication.

Issues considered

Which court has jurisdiction to entertain a petition under Section 34 of the Arbitration and Conciliation Act, 1996?
Is an appeal under Section 37 maintainable when the Section 34 petition is dismissed on the ground of lack of jurisdiction?
What is the proper interpretation of "Court" under Section 2(1)(e) of the Act?

Legislation cited

Arbitration and Conciliation Act, 1996s. 11(6), s. 21(1)(e), s. 2(1)(e), s. 34, s. 37

Subjects

ArbitrationSection 34 petitionSection 37 appealJurisdictionMaintainabilityCivil courtAward setting aside

Judgment

[2009] 9 S.C.R. 579
~

HINDUSTAN COPPER LIMITED A
v.
MIS. NICCO CORPORATION LTD.
(Civil Appeal No. 5630 of 2008)
MAY 20, 2009
B
[DR. MUKUNDAKAM SHARMA AND DR. B.S.
~ CHAUHAN, JJ.]

Arbitration and Conciliation Act, 1996 - ss. 21(1)(e}, 34
and 37(1 )(b) - Arbitration award - Petition uls. 34 challenging c
the award - Petition held as not maintainable by Single Judge
of High Court - Appeal u/s. 37 also dismissed as not
maintainable by Division Bench of High Court - Held: Petition
and the appeal were not maintainable - Matter remitted to the
competent civil court as envisaged uls. 2(1)(e). D
~
A petition was filed by the appellant u/s. 34 of
Arbitration and Conciliation Act, 1996 challenging the
award passed by the sole arbitrator. Single Judge of High
Court dismissed the same as not maintainable on the
ground that the petition shoutd have been filed before E
appropriate court as defined u/s. 2(1)(e) of the Act. The
appeal thereagainst u/s. 37 was also dismissed by the
~ Division Bench of High Court, holding that neither the
petition u/s. 34 nor the appeal u/s. 37 were maintainable.
Hence the present appeal. F
Disposing of the appeal, the Court
HELD: 1. The application u/s. 34 ~of Arbitration and
Conciliation Act, 1996, is to be filed before a court which
... is empowered and has jurisdiction to entertain and
G
decide such objection. The expression 'Court' is defined
under the provision of Section 2(1)(e) of the Act, meaning
the Principal Civil Court of original jurisdiction in a district,
and includes the High Court in exercise of its ordinary
579 H
580 SUPREME COURT RE~ORTS [2009] 9 S.C.R.

A original civil jurisdiction, having jurisdiction to decide the
f, -,
~
)==

questions forming the subject-matter of the arbitration.
Section 37 of the Act applies only when the pre-
conditions mentioned therein are satisfied. It is not correct
to say that since the Single Judge refused to set aside
B the arbitration award, therefore an appeal could be
preferred by the appellant as envisaged u/s. 37 (1 )(b}, as
the petition filed u/s. 34 was dismissed· on the ground of
maintainability of the petition and not on the ground by
refusing to set aside the arbitration award. [Para 6] [582-
c B-H; 583-A]
2. The matter and the petition filed u/s. 34 is remitted ~

to the civil court, competent to hear and decide the same
as envisaged u/s. 2(1)(e) of the Act. The matter is pending
for a very long period and shuttling from one court to
D other court. Therefore, the court to which the matter is ...,.\
entrusted to by the District Judge shall make all endeavor
)r.
to dispose of the same as expeditiously as possible.
[Paras 6 and 7] [583-C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E 5630 of 2008.
From the Judgment & Order dated 4.1.2008 of the High '"'" I

Court of Jharkhand at Ranchi in an Arbitration Appeal No._ 22
of 2007 under Section 37(1) of the Arbitration and Conciliation
·-
t
Act, 1996. ,..,
F
D. Roy Chowdhury, Nandini Sen (for Deba Prasad
Mukherjee) for the Appellant.
Rahul Gupta, P~kai Addy (for Chiraranjan Addey) for the
Respondent.
G
The Judgment of the Court was delivered by ..
_DR. MUKUNDAKAM SHARMA, J. 1. This appeal is .....,

directed against the Judgment and Order passed by the learned
Chief Justice of the Jharkhand High Court taking up the appeal
H and disposing of the said appeal by his Order dated 4.1.2008.
HINDUSTAN COPPER LIMITED v. NICCO CORPN. 581
. "'
II''
LTD. [DR. MUKUNDAKAM SHARMA, J.]

The appellant herein filed a petition under Section 34 of the A
Arbitration and Conciliation Act, 1996, challenging the legality
of the Award dated 28.9.2006 passed by the Sole Arbitrator
with a prayer to set asipe the same. The learned Single Judge
before whom the petition was filed held the same to be not
maintainable. On appeal filed the Chief Justice held that such B
an appeal is also not maintainable.
2. We have heard learned counsel appearing for the
parties.
3. It is disclosed from the records that an application was
filed by the respondent herein before the Jharkhand High Court
c
at Ranchi under Section 11 (6) of the Arbitration and
Conciliation Act, 1996, praying for appointment of an Arbitrator
to adjudicate upon and decide the disputes arising between
the parties in terms of the arbitration agreement. The Jharkhand
High· Court entertained the said application and appointed D
~ Justice P.K. Sarkar, who is a retired Judge of the Patna High
Court to adjudicate upon and decide the disputes between the
parties. Pursuant to the said order, the learned Arbitrator
entered into the Reference and passed the Award on
28.9.2006. After the Award was passed, the appellant herein E
filed a petition under Section 34 of the Arbitration and
Conciliation Act, 1996, challenging the Award dated 28.9.2006
"i passed by the Sole Arbitrator. The Registry' filed an objection
regarding the maintainability of the aforesaid petition under
Section 34 of the Act. According to the Registry, against the F
aforesaid Arbitration Award, a petition under Section 34 of the
Act should have been filed before the appropriate court as
defined under Section 2(e) of the Arbitration and Conciliation
Act, 1996. The learned Single Judge considered the aforesaid
;, objection raised by the Registry of the High Court and agreed G
with the said objection and held that the.aforesaid petition filed
by the appellant under Section 34 of the Arbitration and
Conciliation Act, 1996, is not maintainable.
4. Being aggrieved by the said order, the appellant filed
an appeal invoking the provision of Section 37 of the Act. The H
582 SUPREME COURT REPORTS (2009] ~ S.C.R.

A said appeal was entertained by the then Chief Justice of the " -·
High Court of Jharkhand. After hearing the then Chief Justice
dismissed the said appeal on the ground that the aforesaid
application under Section 34 or appeal under Section 37 of the
Arbitration and Conciliation Act, 1996, is not maintainable
•
B before the High Court. In othe1 words, according to the Chief
Justice the same should have been filed before an appropriate
court as envisaged under the provision of the Arbitration and
Conciliation Act, 1996.
5. Counsel appearing for the appellant has submitted
c before us that since the aforesaid appeal which the appellant
had filed was an appeal under Section 37 of the Arbitration and
Conciliation Act, 1996, it should have been entertained and
deGided by a Division Bench, since the Order of the learned
Single Judge was under challenge.
D 6. We are unable to accept the aforesaid contention which
is found to be prima facie untenable in view of and in the light }'

of the provisions of the Arbitration and Conciliation Act, v1996.
The said application under Section 34 is to be filed before a
court which is empowered and has jurisdiction to entertain and
E decide such objection filed under Section 34 of the Act. The
expression 'Court' is defined under the provision of Section
2(1)(e) of the Act, meaning the principal civil Court of original ,,,
jurisdiction in a district, and includes the High Court in exercise
of its ordinary original civil jurisdiction, having jurisdiction to t
F decide the questions forming the subject-matter of the
arbitration. Section 37 of the Act on which emphasis was given
by counsel for the appellant applies only when the pre-
conditions mentioned therein are .satisfied. The submission of
the learned counsel appearing for the appellant is that since
G the learned Single Judge refused to set aside the arbitration
award, therefore an appeal could be preferred by the appellant
as envisaged under Section 37 (1)(b) of the Arbitration and
Conciliation Act, 1996. We are again unable to persuade
ourselves to accept the aforesaid contention of the counsel
H appearing for the appellant for petition filed under Section 34
-:"

HINDUSTAN COPPER LIMITED v. NICCO CORPN. 583
LTD. [DR. MUKUNDAKAM SHARMA, J.]
..... \;

of the Arbitration and Conciliation Act, 1996, was dismissed A
on the ground of maintainability of the petition and not on the
.; ground by refusing to set aside the arbitration award. Being
faced with the aforesaid situation, the counsel appearing for the
appellant states that he would not like to delay the proceeding
and rather would desire that the proceedings are expedited. In B
terms of his statement and prayer and also in view of the
submission of the counsel appearing for the respondent who
+ has submitted that the matter requires urgent attention of the
court, we remit the matter and the petition filed under Section
34 of the Arbitration and Conciliation Act, 1996, filed by the c
appellant to the civil court competent to hear and decide the
same as envisaged under Section 2(1)(e) of the Act.
7. The petition under Section 34 o( the Act filed by the--
appellant shall now be listed before the District Judge, East
,;
Singhbhum, where the parties shall appear on 29th of May, D
2009, when the District Judge shall allot the petition under
:4
Section 34 to an appropriate court in terms of the provision of
Section 2(1)(e) of the Act. We also feel that the matter i·s
pending for a very long period and shuttling from one court to
other court. Therefore, the court to which the matter is entrusted E
to by the District Judge shall make all endeavor to dispose of
the same as expeditiously as possible preferably within a period
of six months from the date of receiving the records.
"i 8. The orders of the learned Single Judge as also of the
then Chief Justice of Jharkhand High Court stand modified to F
the aforesaid extent.
9. We ~re informed that the petition under Section 34 of
the Arbitration and Conciliation Act, 1996, is now lying in the
Registry of the High Court of Jharkhand. The same shall be
transmitted immediately to the District Judge in terms of this G
).
order.
10. The appeal is disposed of accordingly.
11. Copy of this order be given dasti to the parties.
K.K.T. Appeal disposed of. H