STATE OF WEST BENGAL & ORS.versusASSOCIATED CONTRACTORS

                        [2014] 10 S.C.R. 426


A               STATE OF WEST BENGAL & ORS.
                                  v.
                  ASSOCIATED CONTRACTORS
                  (Civil Appeal No. 6691 of 2005)
                       SEPTEMBER 10, 2014
B
            [R.M. LODHA CJI, KURIAN JOSEPH AND
                      R.F. NARIMAN, JJ.]

        Arbitration and Conciliation Act, 1996:
c
        ss.34, 42 - Which Court will have the jurisdiction to
    entertain and decide an application u/s.34 of the Act - Held:
    The "Court" would be the High Court and not the District Court.

        s.42 - Applicability of - Held: The expression "with
D respect to an arbitration agreement" makes it clear that s. 42
    will apply to all applications made whether before or during
    arbitral proceedings or after an award is pronounced under
    Part-I of the Act.

E       s.42 - Court - Meaning of.

        Dismissing the appeals, the Court

       HELD: 1. The "Court" for the purpose of Section 42
  of the Arbitration and Conciliation Act, 1996 would be the
F High Court and not the District Court. It is the superior
  most court exercising original jurisdiction which has been
  chosen to adjudicate disputes arising out of arbitration
  agreements. [Para 15] [436-H; 437-C]

G      Executive Engineer, Road Development Division No. Ill,
    Panvel & Anr. v. Atlanta Limited AIR 2014 SC 1093: 2014
    SCR 507 - relied on.

        2. Section 11 applications are not to be moved before

H                                426
    STATE OF WEST BENGAL v. ASSOCIATED                   427
              CONTRACTORS
the "court" as defined but before the Chief Justice either      A
of the High Court or of the Supreme Court, as the case
may be, or their delegates. Section 42 would not apply
to such applications. [para 16) [439-E, F]

     Pandey & Co. Builders (P) Ltd. v. State of Bihar & Anr.,   8
(2007) 1 SCC 467: 2006 (8) Suppl. SCR 997; P. Anand
Gajapathi Raju & Ors. v. P. V. G. Raju (Dead) & Ors. (2000) 4
SCC 539: 2000 (2) SCR 684; P. Kasilingam & Ors. v. P.S.G.
College of Technology & Ors. (1995) Suppl. 2 SCC 348: 1995
(2) SCR 1061; Rodemadan India Ltd. v. International Trade       C
Expo Centre Ltd. (2006) 11SCC651; S.B.P. and Co. v. Patel
Engineering Ltd. & Anr. (2005) 8 SCC 618: 2005 (4) Suppl.
 SCR 688; State of Madhya Pradesh v. Saith and Skelton (P)
Ltd., (1972) 1 sec 702: 1972 (3) SCR 233 - relied on.

     Guru Nanak Foundation v. Rattan Singh & Sons (1981)        D
4 SCC 634:1982 (1) SCR 842; National Aluminium Co. Ltd.
v. Presstee/ & Fabrications (P) Ltd. & Anr. (2004) 1 SCC 540;
Bharat Coking Coal Limited v. Annapurna Construction
(2008) 6 SCC 732: 2008 (3) SCR 1124; Garhwa/ Manda/
Vikas Nigam Ltd. v. Krishna Travel Agency (2008) 6 SCC          E
741 - referred to.

     3. Section 2(1 )(e) contains an exhaustive definition
marking out only the Principal Civil Court of original
jurisdiction in a district or a High Court having original
                                                                F
civil jurisdiction in the State, and no other court as
"court" for the purpose of Part-I of the Arbitration Act,
1996. The expression "with respect to an arbitration
agreement" makes it clear that Section 42 will apply to all
applications made whether before or during arbitral             G
proceedings or after an Award is pronounced under Part-
1 of the 1996 Act. However; Section 42 only applies to
applications made under Part-I if they are made to a court
as defined. Since applications made under Section 8 are
made to judicial authorities and since applications under
Section 11 are made to the Chief ~ustice or his designate,      H
    428     SUPREME COURT REPORTS              [2014] 10 S.C.R.


A the judicial authority and the Chief Justice or his
  designate not being court as defined, such applications
  would be outside Section 42. Section 9 applications being
  applications made to a court and Section 34 applications
  to set aside arbitral awards are applications which are
B within Section 42. In no circumstances can the Supreme
  Court be "court" for the purposes of Section 2(1)(e), and
  whether the Supreme Court does or does not retain
  seisin after appointing an Arbitrator, applications will
  follow the first application made before either a High
c Court having original jurisdiction in the State or a
  Principal Civil court having original jurisdiction in the
  district as the case may be. Section 42 will apply to
  applications made after the arbitral proceedings have
  come to an end provided they are made under Part-I. If a
  first application is made to a court which is neither a
0
  Principal Court of original jurisdiction in a district or a
  High Court exercising original jurisdiction in a State, such
  application not being to a court as defined would be
  outside Section 42. Also, an application made to a court
E without subject matter jurisdiction would be outside
  Section 42. [Para 25) [445-B-H; 446-A-B]

       Kumbha Mawji v. Dominion of India (1953) SCR 878;
  FCI represented by Managing Director & Anr. v. A.M. Ahmed
  & Co. through MD & Anr. (2001) 10 SCC 532; Neycer India
F Ltd. v. GNB Ceramics Ltd. (2002) 9 SCC 489; Jatinder Nath
  v. Chopra Land Developers Pvt. Ltd. (2007) 11 SCC 453
  2007 (3) SCR 545; Rajasthan State Electrical Board v.
  Universal Petrol Chemical Limited (2009) 3 SCC 107: 2009
  (1) SCR 138; Swastik Gases (P) Ltd. v. Indian Oil Corporation
G 2013 (9) sec 32: 2013 (7) SCR 581; HBM Print Ltd. v.
  Scantrans India (Pvt.) Ltd. (2009) 17 SCC 338 - referre·d to.
                        Case Law Reference:
     2000 (2) SCR 684              relied on         Para. 12
H
    STATE OF WEST BENGAL v. ASSOCIATED             429
              CONTRACTORS
  1995 (2) SCR 1061          relied on       Para 14      A
  2014 SCR 507               referred to     Para 15
  (2006) 11 sec 651          relied on       Para 16
  2005 (4) Suppl. SCR 688    relied on       Para 16
                                                          B
  2006 (8) Suppl. SCR 997    relied on       Para 16
  1972 (3) SCR 233           relied on       Para 19
  1982 (1) SCR 842           referred to     Para 19
                                                          c
  (2004) 1 sec 540           referred to     Para 19
  2008 (3) SCR 1124          referred to     Para 19
  (2008) 6 sec 741           referred to     Para 19
  (1953) SCR 878             referred to     Para 21      D

  (2001 > 1o sec 532         referred to     Para 22
  (2002) 9 sec 489           referred to     Para 22
  2007 (3) SCR 545           referred to     Para 22      E
  2009 (1) SCR 138           referred to     Para 22
  2013 (7) SCR 581           referred to     Para 22
  (2009) 11 sec 338          referred to     Para 23
                                                          F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6691 of 2005.

    From the Judgment and Order dated 11.04.2005 of the
High Court at Calcutta in C.O. ~. 3938 of 2004.           G
                         WITH

C.A. No. 4808 of 2013.

                                                          H
    430      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A       Anip Sachthey, Shagun Matta, Saakaar Sardana for the
    Appellants.

      Pradip Ghosh, Deba Prasad Mukherjee, Nandini Sen,
  Soumya Dutta (for K.V. Bharathi Upadhyaya) for the
B Respondent.

          The Judgment of the Court was delivered by

          R.F. NARIMAN, J. 1. This matter has come before a three
    Judge Bench by an order of reference of a Division Bench of
c   this Hon'ble Court dated 7th April, 2010. The referral order
    reads thus:

          "In this appeal, the question that arises for decision is
          which Court will have the jurisdiction to entertain and
          decide an application under Section 34 of the Arbitration
D
          and Conciliation Act, 1996 (hereinafter for short 'the ActJ.

          2. Mr. Bikas Ranjan Bhattacharya, learned senior
          counsel appearing for the appellants cited the judgments
          in the case of National Aluminium Co. Ltd. Vs. Pressteel
E         & Fabrications (P) Ltd. And Anr. (2004) 1 SCC 540,
          Bharat Coking Coal Ltd. Vs. Annapurna Construction
          (2008) 6 SCC 732, Bharat Coking Coal Ltd. Vs. H.P.
          Biswas and Company (2008) 6 SCC 740 and Garhwa/
          Manda/ Vikas Nigam Ltd. Vs. Krishna Travel Agency
F         (2008) 6 sec 741 in support of his submission that it is,
          only the Principal Civil Court, as defined in Section 2(e)
          of the Act, which can entertain and decide an application
          under Section 34 of the Act for setting aside the Award.
                                      I     •


           3. Mr. Pradip Ghosh, teained senior counsel appearing
G         for the respondent on the other hand submitted that in
           the present case the Calcutta High Court exercising
          jurisdiction under Clause 12 of the Letters Patent had
          passed an interim order under Section 9 of the Act before
           commencement of the arbitration proceedings and by
H
     STATE OF WEST BENGAL v. ASSOCIATED                     431
        CONTRACTORS [R.F. NARIMAN, J.]
    virtue of Section 42 of the Act, it is only the Calcutta High   A
    Court which will have jurisdiction to entertain and decide
    an application under Section 34 of the Act for setting
    aside the Award. In support of his submission, he relied
    upon judgment of this Court in the case of Jindal
    Vijaynagar Steel (JSW Steel Ltd.) Vs. Jindal Praxair            B
    Oxygen Co. Ltd. (2006) 11 SCC 521.

    4. We have perused the decisions cited by learned
    counsel for the parties, which are all decisions of two
    Judges Bench. In our opinion, the law has to be clarified       C
    beyond doubt as to which Court will have the jurisdiction
    to entertain and decide an application for setting aside
    the Award under Section 34 of the Act read with Section
    2(e) of the Act and other provisions, including Section 42
    of the Act. We, therefore, refer the matter to a larger
    Bench to decide this question of law.                           D
    5. Let the papers of this case be placed before Hon'ble
    the Chief Justice for constituting an appropriate Bench.

    6. Till the disposal of the appeal by a larger Bench, the       E
    interim order dated 17. 05. 2007 shall continue to operate."

     2. The facts necessary to decide this matter are as
follows:

     In 1995-96 an Item Rate Tender was duly executed and           F
signed between the respondent Associated Contractors and
the concerned Superintending Engineer for execution of the
work of excavation and lining of Teesta-Jaldhaka Main Canal
from Chainage 3 Kms. to 3.625 Kms. in Police Station: Mal,
District: Jalpaiguri, West Bengal. Para 25 of the said Item Rate    G
Tender and Contract contained an arbitration clause.

    3. The respondent herein filed an application under
Section 9 of the Arbitration Act, 1996 for interim orders in the
High Court of Calcutta. A learned Single Judge of the High Court
                                                                    H
    432      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A of Calcutta, after granting leave under Clause 12 of the Letters
  Patent, passed an ad-interim ex-parte injunction order. This
  order was continued from time to time until it was confirmed
  by an order dated 10th December, 1998. Meanwhile, in an
  application under Section 11 of the Arbitration Act, Justice B.P.
B Banerjee (retired), was appointed as an Arbitrator to adjudicate
  upon the disputes between the parties. A Recalling Application
  filed by the State was dismissed on 20th January, 2000.

      4. An appeal was filed against the order dated 10th
C December, 1998, confirming the ad-interim ex-parte injunction.
  On 5th July, 2000, delay in filing the appeal was condoned and
  on 20th July, 2000, the interim order was stayed by the Division
  Bench. The Arbitrator was, however, asked to complete the
  proceedings before him which would go on uninterrupted.

D        5. Meanwhile, several orders were passed by the High
  Court regarding remuneration of the Arbitrator and payment of
  the same. The arbitration proceedings culminated in an Award
  dated 30th June, 2004 by which the claimant was awarded a
  sum of Rs.2,76,97,205.00 with 10% interest from 1st July, 1998
E till the date of the Award. If not paid within four months, the same
  would then attract interest at the rate of 18% per annum. Costs
  were also awarded in the sum of Rs.50,000/-. The counter
  claims of the respondent were rejected.

        6. On 21st September, 2004, the State of West Bengal
F filed an application under Section 34 of the 1996 Act to set
  aside the arbitral Award before the Principal Civil Court of the
  learned District Judge at Jalpaiguri, West Bengal. On 6th
  October, 2004, the learned District Judge at Jalpaiguri issued
  notice to the other side directing the respondent to appear and
G file its written objections on or before 4th January, 2004. On
  10th December, 2004, the respondent filed an application
  under Article 227 of the Constitution challenging the jurisdiction
  of the court of the learned District Judge at Jalpaiguri. By the
  impugned judgment dated 11th April, 2005, a Single Judge of
H
     STATE OF WEST BENGAL v. ASSOCIATED                      433
        CONTRACTORS [R.F. NARIMAN, J.]
the High Court of Calcutta allowed the petition under Article 227    A
holding:

    "Accordingly, I hold that since the parties already had
    submitted to the jurisdiction of this Court in its Ordinary
    Original Civil jurisdiction in connection with different B
    earlier proceedings arising out of the said contract, as
    indicated above, the jurisdiction of the court of the learned
    District Judge at Jalpaiguri to entertain the said
    application for setting aside of the award was excluded
    under Section 42 of the said Act. Thus, I find that this
    Court in its Ordinary Original Civil Jurisdiction is the only C
    court which can entertain an application for setting aside
    the said award. The Revisional Application, thus, stands
    allowed. The impugned notice is, thus, quashed."

     7. In an S.L.P. filed against this order, Mr. Anip Sachthey,    D·
learned advocate for the State of West Bengal, argued that
since the application itself made under Section 9 was without
jurisdiction, Section 42 of the Arbitration Act would not be
attracted. He argued that the reason the Division Bench stayed
the interim order passed under Section 9 was because it was          E
convinced prima facie that the High Court had no territorial
jurisdiction in the matter.

     8. Mr. P.K. Ghosh, learned senior advocate for the
respondent, contended that Clause 12 leave had already been          F
granted and a number of orders have been passed after the
ad-interim ex-parte order dated 22nd July, 1998 by the learned
Single Judge of the High Court. There is, in fact, no order of
any court which has pronounced upon jurisdiction, and therefore,
Section 42 would necessarily apply to the facts of the case.
                                                                     G
     9. As the matter has been referred to us for an authoritative
pronouncement on Section 2(1)(e) and Section 42 it will be
important to set out Section 2(1)(e) and Section 42 of the
Arbitration Act, 1996 which read as follows:
                                                                     H
    434       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A          "2(1)(e) "Court" means 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 decide the questions forming the subject-
          matter of the arbitration if the same had been the subject-
B         matter of a suit, but does not include any civil court of a
          grade inferior to such principal Civil Court, or any Court
          of small Causes.

          42. Jurisdiction - Notwithstanding anything contained
          elsewhere in this Part or in any other law for the time
c         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
D         proceedings shall be made in that Court and in no other
          Court."

        10. Section 2(1 }(e) had its genesis in Section 2(c) of the
    1940 Act. Section 42 had its genesis in Section 31(4) of the
E   1940 Act. These sections of the 1940 Act read as follows:

          "2(c) "Court" means a Civil Court having jurisdiction to
          decide the questions forming the subject- matter of the
          reference if the same had been the subject- matter of a
          suit, but does not, except for the purpose of arbitration
F         proceedings under section 21, include a Small Cause
          Court;

          31 (4) Notwithstanding anything contained elsewhere in
          this Act or in any other law for the time being in force,
G         where in any reference any application under this Act has
          been made in a Court competent to entertain it, that
          Court alone shall have jurisdiction over the arbitration
          proceedings-, and all subsequent applications arising,
          out of that reference, and the arbitration proceedings
H         shall be made in that Court and in no other Court."
     STATE OF WEST BENGAL v. ASSOCIATED                     435
        CONTRACTORS [R.F. NARIMAN, J.]
     11. It will be noticed that Section 42 is in almost the same A
terms as its predecessor Section except that the words "in any
reference" are substituted with the wider expression "with
respect to an arbitration agreement". It will also be noticed that
the expression "has been made in a court competent to
entertain it", is no longer there in Section 42. These two B
changes are of some significance as will be pointed out later.
Section 42 starts with a non-obstante clause which does away
with anything which may be inconsistent with the Section either
in Part-I of the Arbitration Act, 1996 or in any other law for the
time being in force. The expression "with respect to an c
arbitration agreement" widens the scope of Section 42 to
include all matters which directly o~ indirectly pertain to an
arbitration agreement. Applications made to Courts which are
before, during or after arbitral proceedings made under Part-I ·
of the Act are all covered by Section 42. But an essential 0
ingredient of the Section is that an application under Part-I must
be made in a court.

     12. Part-1 of the Arbitration Act, 1996, contemplates
various applications being made with respect to arbitration
agreements. For example, an application under Section 8 can         E
be made before a judicial authority before which an action is
brought in a matter which is the subject of an arbitration
agreement. It is obvious that applications made under Section
8 need not be to courts, and for that reason alone, such
applications would be outside the scope of Section 42. It was       F
held in P. Anand Gajapathi Raju & Ors. v. P.V.G. Raju
(Dead) & Ors., (2000) 4 SCC 539 at para 8 that applications
under Section 8 would be outside the ken of Section 42. We
respectfully agree, but for the reason that such applications are
made before "judicial authorities" and not "courts" as defined.     G
Also, a party who applies under Section 8 does not apply as
dominus litis, but has to go wherever the ·action' may have
been filed. Thus, an application under Section 8 is parasitical
in nature - it has to be filed only before the judicial authority
before whom a proceeding is filed by someone else. Further,         H
    436       SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A   the "judicial authority" may or may not be a Court. And a Court
    before which an action may be brought may not be a Principal
    Civil Court of original jurisdiction or a High Court exercising
    original jurisdiction. This brings us then to the definition of
    "court" under Section 2(1)(e) of the Act.
B
        13. It will be noticed that whereas the earlier definition
  contained in the 1940 Act spoke of any civil court, the definition
  in the 1996 Act fixes "court" to be the Principal Civil Court of
  original jurisdiction in a district or the High Court in exercise of
C its ordinary original civil jurisdiction. Section 2(1 )(e) further goes
  on to say that a court would not include any civil court of a grade
  inferior to such Principal Civil Court, or a Small Causes Court.

        14. It will be noticed that the definition is an exh~ustive one
  as it uses the expression "means and includes". It is ~ttled law
D that such definitions are meant to be exhaustive in nature - See
  P. Kasilingam & Ors. v. P.S.G. College of Technology &
  Ors., (1995) Suppl. 2 SCC 348 at para 19.

        15. A recent judgment of this Hon'ble Court reported in
E Executive Engineer, Road Development Division No. Ill,
  Panvel & Anr. v. Atlanta Limited, AIR 2014 SC 1093 has
  taken the view that Section 2(1 )(e) contains a scheme different
  from that contained in Section 15 of the Code of Civil
  Procedure. Section 15 requires all suits to be filed in the lowest
F grade of court. This Hon'ble Court has construed Section 2(1)(e)
  and said that where a High Court exercises ordinary original
  civil jurisdiction over a district, the High Court will have
  preference to the Principal Civil Court of original jurisdiction in
  that district. In that case, one of the parties moved an
  application under Section 34 before the District Judge, Thane.
G On the same day, the opposite party moved an application
  before the High Court of Bombay for setting aside some of the
  directions contained in the Award. In the circumstances, it was
  decided that the "Court" for the purpose of Section 42 would
  be the High Court and not the District Court. Several reasons
H were given for this. Firstly, the very inclusion of the High Court
     STATE OF WEST BENGAL v. ASSOCIATED                        437
        CONTRACTORS [R.F. NARIMAN, J.]
in the definition would be rendered nugatory if the above              A
conclusion was not to be accepted, because the Principal Civil
Court of original jurisdiction in a district is always a court lower
in grade than the High Court, and such District Judge being
lower in grade than the High Court would always exclude the
High Court from adjudicating upon the matter. Secondly, the            B
provisions of the Arbitration Act leave no room for any doubt
that it is the superior most court exercising original jurisdiction
which has been chosen to adjudicate disputes arising out of
arbitration agreements. We respectfully concur with the
reasoning contained in this judgment.                                  c
     16. Similar is the position with regard to applications made
under Section 11 of the Arbitration Act. In Rodemadan India
Ltd. v. International Trade Expo Centre Ltd., (2006) 11
SCC 651, a Designated Judge of this Hon'ble Court following
the seven Judge Bench in S.B.P. and Co. v. Patel                       D
Engineering Ltd. & Anr., (2005) 8 SCC 618, held that instead
of the court, the power to appoint arbitrators contained in
Section 11 is conferred on the Chief Justice or his delegate.
In fact, the seven Judge bench held:
                                                                       E
     "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            F
     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       G
     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
                                                                       H
    438       SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A         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 concerned court would be the
          District Court. Obviously, the Parliament did not want to
B         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
c         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
D
          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 cquntry,
          on Chief Justices of High Courts and on the Chief Justice
E         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
F         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 concerned State or in the country.
G          This is to ensure the utmost authority to the process of
          constituting the arbitral tribunal.

          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
H         Court, but it is conferred on the Chief Justice of India or
     STATE OF WEST BENGAL v. ASSOCIATED                    439
        CONTRACTORS [R.F. NARIMAN, J.]
    the Chief JustiGe of the High Court. One possible reason       A
    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 the Parliament obviously     B
    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          c
    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        0
    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."

      It is obvious that Section 11 applications are not to be     E
moved before the "court" as defined but before the Chief
Justice either of the High Court or of the Supreme Court, as
the case may be, or their delegates. This is despite the fact
that the Chief Justice or his delegate have now to decide
judicially and not administratively. Again, Section 42 would not   F
apply to applications made before the Chief Justice or his
delegate for the simple reason that the Chief. Justice or his
delegate is not "court" as defined by Section 2(1)(e). The said
view was reiterated somewhat differently in Pandey & Co.
Builders (P) Ltd. v. State of Bihar & Anr., ~007) 1 SCC 467        G
at Paras 9, 23-26.

    17. That the Chief Justice does not represent the High
Court or Supreme Court as the case may be is also clear from
Section 11(10):
                                                                   H
    440       SUPREME COURT REPORTS                   [2014) 10 S.C.R.


A         "The Chief Justice may make such scheme as he may
          deem appropriate for dealing with matters entrusted by
          sub-section (4) or sub-section(S) or sub-section (6) to
          him."

         The scheme referred to in this sub-section is a scheme
8
    by which the Chief Justice may provide for the procedure to be
    followed in cases dealt with by him under Section 11. This again
    shows that it is not the High Court or the Supreme Court rules
    that are to be followed but a separate set of rules made by the
C   Chief Justice for the purposes of Section 11.

          Sub-section 12 of Section 11 reads as follows:

                "(a) Where the matters referred to in sub-sections
          (4), (5), (6), (7), (8) and (10) arise in an international
D         commercial arbitration, the reference to "Chief Justice" in
          those sub-sections shall be construed as a reference to
          the "Chief Justice of India".

                 (b) Where the matters referred to in sub-sections (4),
          (5), (6), (7), (8) and (10) arise in any other arbitration, the
E         reference to "Chief Justice" in those sub-sections shall be
          construed as a reference to the Chief Justice of the High
          Court within whose local limits the principal Civil Court
          referred to in clause (e) of sub-section (1) of section 2 is
          situate and, where the High Court itself is the Court
F         referred to in that clause, to the Chief Justice of that High
          Court."

       It is obvious that Section 11 ( 12)(b) was necessitated in
  order that it be clear that the Chief Justice of "the High Court"
G will only be such Chief Justice within whose local limits the
  Principal Civil Court referred to in Section 2(1 )(e) is situate and
  the Chief Justice of that High Court which is referred to in the
  inclusive part of the definition contained in Section 2(1)(e). This
  sub-section also does not in any manner make the Chief Justice
H or his designate "court" for the purpose of Section 42. Again,
     STATE OF WEST BENGAL v. ASSOCIATED                     441
        CONTRACTORS [R.F. NARIMAN, J.]
the decision of the Chief Justice or his designate, not being       A
the decision of the Supreme Court or the High Court, as the
case may be, has no precedential value being a decision of a
judicial authority which is not a Court of Record.

     18. In contrast with applications moved under Section 8
and 11 of the Act, applications moved under Section 9 are to        8
the "court" as defined for the passing of interim orders before
or during arbitral proceedings or at any time after the making
of the arbitral Award but before its enforcement. ·In case an
application is made, as has been made in the present case,
before a particular court, Section 42 will apply to preclude the    C
making of all subsequent applications under Part-I to any court
except the court to vjhich an application has been made under
Section 9 of the Act.

      19. One of the questions that arises in the reference order   D
is whether the Supreme Court is a court within the meaning of
Section 2(1 )(e) of the Act. In two judgments under the 1940 Act,
namely, State of Madhya Pradesh v. Saith ~md Skelton (P)
Ltd., (1972) 1 SCC 702 and Guru Nanak Foundation v.
Rattan Singh & Sons, (1981) 4 SCC 634, the Supreme Court            E
took the view that where an Arbitrator was appointed by the
Supreme Court itself and the Supreme Court retained seisin
over the arbitration proceedings, the Supreme Court would be
"court" for the purpose of Section 2(c) of the 1940 Act. These
judgments were distinguished in National Aluminium Co. Ltd.
                                                                    F
v. Pressteel & Fabrications (P) Ltd. & Anr., (2004) 1 SCC
540, Bharat Coking Coal Limited v. Annapurna
Construction, (2008) 6 SCC 732 and Garhwal Manda!
Vikas Nigam Ltd. v. Krishna Travel Agency, (2008) 6 SCC
741. The first of these judgments was a judgment under the          G
 1996 Act wherein it was held that when the Supreme Court
appoints an Arbitrator but does not retain seisin over the
 proceedings, the Supreme Court will not be "court" within the
 meaning of Section 2(1)(e) of the Act. Similar is the position
 in the third judgment, the Garhwal case. Even under the 1940
                                                                    H
    442     SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   Act, in Bharat Coking Coal, the same distinction was made
    and it was held that as the Supreme Court did not retain seisin
    over the proceedings after appointing an Arbitrator, the
    Supreme Court would not be "court" within the meaning of the
    Arbitration Act, 1940.
B         20. As noted above, the definition of "court" in Section
    2(1 )(e) is materially different from its predecessor contained in
    Section 2(c) of the 1940 Act. There are a variety of reasons
    as to why the Supreme Court cannot possibly be considered
    to be "court" within the meaning of Section 2(1 )(e) even if it
C   retains seisin over the arbitral proceedings. Firstly, as noted
    above, the definition is exhaustive and recognizes only one of
    two possible courts that could be "court" for the purpose of
    Sect.ion 2(1 )(e). Secondly, under the 1940 Act, the expression
    "civil court" has been held to be wide enough to include an
D   appellate court and, therefore would include the Supreme Court
    as was held in the two judgments aforementioned under the
    1940 Act. Even though this proposition itself is open to doubt,
    as the Supreme Court exercising jurisdiction under Article 136
    is not an ordinary Appellate Court, suffice it to say that even
E   this reason does not obtain under the present definition, which
    speaks of either the Principal Civil Court or the High Court
    exercising original jurisdiction. Thirdly, if an application would
    have to be preferred to the Supreme Court directly, the appeal
    that is available so far as applications under Sections 9 and
F   34 are concerned, provided for under Section 37 of the Act,
    would not be available. Any further appeal to the Supreme
    Court under Article 136 would also not be available. The only
    other argument that could possibly be made is that all definition
    sections are subject to context to the contrary. The context of
G   Section 42 does not in any manner lead to a conclusion that
    the word "court" in Section 42 should be construed otherwise
    than as defined. The context of Section 42 is merely to see that
    one court alone shall have jurisdiction over all applications with
     respect to arbitration agreements which context does not in any .
H    manner enable the Supreme Court to become a "court" within
    STATE OF WEST BENGAL v. ASSOCIATED                      443
       CONTRACTORS [R.F. NARIMAN, J.]
the meaning of Section 42. It has aptly been stated that the rule A
of forum conveniens is expressly excluded by section 42. See:
JSW Steel ltd. vs. Jindal Praxair Oxygen Co.Ltd., (2006) 11
SCC 521 at para 59. Section 42 is also markedly different from
Section 31 (4) of the 1940 Act in that the expression "has been
made in a court competent to entertain it" does not find place B
in Section 42. This is for the reason that, under Section 2(1 }(e),
the competent Court is fixed as the Principal Civil Court
exercising original jurisdiction or a High Court exercising
original civil jurisdiction, and no other court. For all these·
reasons, we hold that the decisions under the 1940 Act would c
not obtain under the 1996 Act, and the Supreme Court cannot
be "court" for the purposes of Section 42.

     21. One other question that may arise is as to whether
Section 42 applies after the arbitral proceedings come to an
end. It has already been held by us that the expression "with       D
respect to an arbitration agreement" are words of wide import
and would take in all applications made before during or after
the arbitral proceedings are over. In an earlier judgment,
Kumbha Mawji v. Dominion of India, (1953) SCR 878, the
question which arose before the Supreme Court was whether           E
the expression used in Section 31(4) of the 1940 Act "in any
reference" would include matters that are after the arbitral
proceedings are over and have culminated in an award. It was
held that the words "in any reference" cannot be taken to mean
"in the course of a reference", but mean "in the matter of a        F
reference" and that such phrase is wide enough and
comprehensive enough to cover an application made after the
arbitration is completed and the final Award is made. (See
Paras 891- 893). As has been noticed above, the expression
used in Section 42 is wider being "with respect to an arbitration   G
agreement" and would certainly include such applications.

     22. One more question that may arise under Section 42
is whether Section 42 would apply in cases where an
application made in a court is found to be without jurisdiction.
                                                                    H
    444      SUPREME COURT REPORTS                  [2014) 10 S.C.R.


A Under Section 31 (4) of the old Act, it has been held in FCI
  represented by Managing Director & Anr. v. A.M. Ahmed
  & Co., through MD & Anr., (2001) 10 SCC 532 at para 6
  and Neycer India Ltd. v. GNB Ceramics Ltd., (2002) 9 SCC
  489 at para 3 that Section 31 (4) of the 1940 Act would not be
B applicable if it were found that an application was to be made
  before a court which had no jurisdiction. In Jatinder Nath v.
  Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at
  para 9 and Rajasthan State Electrical Board v. Universal
  Petrol Chemical Limited, (2009) 3 SCC 107 at paras 33 to
c 36 and Swastik Gases (P) Ltd. v. Indian Oil Corporation,
  2013 (9) sec 32 at para 32, it was held that where the
  agreement between the parties restricted jurisdiction to only
  one particular court, that court alone would have jurisdiction as
  neither Section 31 (4) nor Section 42 contain~ a non-obstante
  clause wiping out a contrary agreement between the parties. It
0
  has thus been held that applications preferred to courts outside
  the exclusive court agreed to by parties would also be without
  jurisdiction.

       23. Even under Section 42 itself, a Designated Judge has
E held in HBM Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009)
  17 SCC 338, that where the Chief Justice has no jurisdiction
  under Section 11, Section 42 will not apply. This is quite apart
  from the fact that Section 42, as has been held above, will not
  apply to Section 11 applications at all.
F
       24. If an application were to be preferred to a Court which
  is not a Principal Civil Court of original jurisdiction in a district,
  or a High Court exercising original jurisdiction to decide
  questions forming the subject matter of an arbitration if the
G same had been the subject matter of a suit, then obviously such
  application would be outsi.de the four corners of Section 42. If,
  f9r example, an application were to be filed in a court inferior
  to a Principal Civil Court, or to a High Court which has no
  original jurisdiction, or if an application were to be made to a
H court which has no subject matter jurisdiction, such application
     STATE OF WEST BENGAL v. ASSOCIATED                        445
        CONTRACTORS [R.F. NARIMAN, J.]
would be outside Section 42 and would not debar subsequent             A
applications from being filed in a court other than such court.

    25. Our conclusions therefore on Section 2(1)(e) and
Section 42 of the Arbitration Act, 1996 are as follows:

      (a) Section 2(1 )(e) contains an exhaustive definition           B
marking out only the Principal Civil Court of original jurisdiction
in a district or a High Court having original civil jurisdiction in
the State, and no other court as "court" for the purpose of Part-
! of the Arbitration Act, 1996.
                                                                       c
    (b} The expression "with respect to an arbitration
agreement" makes it clear that Section 42 will apply to all
applications made whether before or during arbitral
proceedings or after an Award is pronounced under Part-I of
the 1996 Act.
                                                                       D
     (c) However, Section 42 only applies to applications made
under Part-I if they are made to a court as defined. Since
applications made under Section 8 are made to judicial
authorities and since applications under Section 11 are made
to the Chief Justice or his designate, the judicial authority and      E
the Chief Justice or his designate not being court as defined,
such applications would be outside Section 42.

     (d) Section 9 applications being applications made to a
court and Section 34 applications to set aside arbitral awards         F
are applications which are within Section 42.

      (e} In no circumstances can the Supreme Court be "court"
for the purposes of Section 2(1)(e), and whether the Supreme
Court does or does not retain seisin after appointing an
Arbitrator, applications will follow the first application made        G
before either a High Court having original jurisdiction in the
State or a Principal Civil court having original jurisdiction in the
district as the case may be.

     (f} Section 42 will apply to applications made after the          H
    446       SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A arbitral proceedings have come to an end provided they are
  made under Part-I..

          (g) If a first application is made to a court which is neither
    a Principal Court of original jurisdiction in a district or a High
    Court exercising original jurisdiction in a State, such application
8   not being to a court as defined would be outside Section 42.
    Also, an appiication made to a court without'subject matter
    jurisdiction would be outside Section 42.

          The reference is answered accordingly.
c
       26. On the facts of the present case, nothing has been
  shown as to how the High Court of Calcutta does not possess
  jurisdiction. It has been mentioned above that leave under
  Clause 12 has been granted. In the circumstances of the
  present case, therefore, the judgment dated 11th April, 2005
0
  passed by the High Court of Calcutta is correct and does not
  need any interference. Civil Appeal No.6691/2005 and Civil
  Appeal No.4808/2013 are hereby dismissed.

    Devika Gujral                                    Appeals dismissed.