# Jaiprakash Associates Ltd v. High Tech Tyre Retreaders Pvt. Ltd. & Anr

- **Citation:** (2025) 9 ILRA 613
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-17
- **Case number:** Conciliation Act 1996 Defective No. 112 of 2025
- **Bench:** Arun Bhansali, C.J. Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaiprakash-associates-ltd-v-high-tech-tyre-retreaders-pvt-ltd-anr-53940
- **Pages:** 6

## Headnote

Arbitration and Conciliation Act, 1996 against
rejection of Application u/s 34

Headnotes
Arbitration and Conciliation Act, 1996Application u/s 34 - has been closed for lack of
jurisdiction-impugned- only orders setting aside
or refusing to set aside an arbitral award u/s 34
are appealable u/s 37(1)(c) of the Act- the order
passed
returning
the
application
without
indicating alternative forum under the Codewhich factually does not exist- the same
amounts to refusing to set aside the award
impugned under Section 34 of the Actpreliminary
objection
pertaining
to
the
maintainability of the appeal u/s 37 of the Act
overruled. (E-9)

Case Law Cited

## Text

9 All. Jaiprakash Associates Ltd. Vs. High Tech Tyre Retreaders Pvt. Ltd. & Anr.
613
herein and his wife. From the material
available on record, it is apparent that the
death of the son of the applicant herein was
caused by asphyxia and ante-mortem
hanging. Thus, the death of the son of the
applicant was suicidal. However, it has
been alleged that due to the matrimonial
dispute between them, the opposite parties
came to the applicant's house around 6:00
P.M. on 20.07.2021 and they threatened
that the opposite party no.4 would stay in
the applicant's house only when the land,
car, etc. were transferred in the name of the
opposite party no.4. Thereupon, on the
same date, the son of the applicant herein
went inside the room and locked it from
inside and did not open it. In the morning
after
getting
no
response
from
the
applicant's son, the police was called to
open the door and afterwards it was found
that he had committed suicide.

32. In her statement, it has been
further stated by the complainant that after
the said incident, the opposite party no.4
stayed in the applicant's house and the
cremation of her son was done. Thereafter,
after four to five days later, she has gone
along with her brother and thereafter, the
applicant went to report at the police station
that, due to her abetment, her son had
committed suicide. The aforesaid facts has
been duly appreciated by the trial court
before rejecting the complaint case filed by
the applicant herein. It is a settled position
of law that the abetment of suicide must be
express and cannot be implied. However,
from the entire allegations made on record,
there is no express abetment to suicide on
the part of the opposite parties except the
usual chorus between husband and wife
with regard to family properties.

33. Therefore, this Court does not find
any illegality in the impugned orders
passed by the court below. Accordingly,
the instant application is dismissed.
---------
(2025) 9 ILRA 613
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2025

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Appeal Under Section 37 of Arbitration And
Conciliation Act 1996 Defective No. 112 of 2025

Jaiprakash Associates Ltd. ...Appellant
Versus
High Tech Tyre Retreaders Pvt. Ltd. & Anr
 ...Respondents

Counsel for the Appellant:
Rohan Gupta, Pranay Kumar

Counsel for the Respondents:
H.N. Singh (Sr. Advocate), Sumit Daga

Issue for consideration
Maintainability of Appeal u/s 37 of the
Arbitration and Conciliation Act, 1996 against
rejection of Application u/s 34

Headnotes
Arbitration and Conciliation Act, 1996Application u/s 34 - has been closed for lack of
jurisdiction-impugned- only orders setting aside
or refusing to set aside an arbitral award u/s 34
are appealable u/s 37(1)(c) of the Act- the order
passed
returning
the
application
without
indicating alternative forum under the Codewhich factually does not exist- the same
amounts to refusing to set aside the award
impugned under Section 34 of the Actpreliminary
objection
pertaining
to
the
maintainability of the appeal u/s 37 of the Act
overruled. (E-9)

Case Law Cited
1. BGS SGS SOMA JV Vs. NHPC LIMITED :
(2020) 4 SCC 234
614 INDIAN LAW REPORTS ALLAHABAD SERIES
2. ESSAR Constructions Vs. N.P. Rama Krishna
Reddy : (2000) 6 SCC 94
3. Chintels India Limited Vs. Bhayana Builders
Private Limited : (2021) 4 SCC 602
4. Bharat Sanchar Nigam Limited Vs. M/s V.L.S.
Diesel
Engine
Sales
&
Services
:
2025:AHC:9344-DB

List of Acts
1.Arbitration and Conciliation Act, 1996

List of Keywords
Effect doctrine; maintainability of the appeal
under Section 37 of the Act; order refusing to
set aside award.

Appearances of parties
Counsel for Appellant(s) : Rohan Gupta, Pranay
Kumar
Counsel for Respondent(s) : H.N. Singh (Sr.
Advocate), Sumit Daga

(Delivered by Hon'ble Arun Bhansali, C.J.)

1. This appeal under Section 37 of the
Arbitration and Conciliation Act, 1996 (for
short 'the Act') is directed against orders
dated
13.09.2024,
19.10.2024
and
07.03.2025 passed by Commercial Court,
Kanpur Nagar whereby the application
filed by the appellant under Section 34 of
the Act, has been closed for lack of
jurisdiction and the application has been
ordered to be returned, on account of
passing of order dated 13.09.2024, the bank
guarantee produced by the respondents has
been ordered to be released and application
filed by the appellant seeking correction in
the order dated 13.09.2024 and restoration
of the application as filed, has been rejected
respectively.

2. The application was filed under
Section 34 of the Act by the appellant
against award dated 04.10.2017 passed by
the U.P. State Micro & Small Enterprises
Facilitation
Council,
Kanpur
('the
Council').
During
pendency
of
the
proceedings
under
Section
34,
an
application
under
Section
7
of
the
Insolvency and Bankruptcy Code, 2016
(for short 'the Code') was filed by the
ICICI Bank before the NCLT seeking
initiation
of
Corporate
Insolvency
Resolution Process ('CIRP') against the
appellant. The NCLT by its order dated
03.06.2024 admitted the application in
terms of Section 7(5) of the Code against
the appellant and passed certain directions
including imposing a moratorium under
Sections 13 and 14 of the Code.

3. The appellant filed Application
107Ga before the Commercial Court
bringing on record the order dated
03.06.2024 passed by the NCLT. In the
application, an assertion was made that no
proceedings could be continued in the case
against the appellant company and a prayer
was made to take the order dated
03.06.2024
on
record
and
pass
consequential necessary directions.

4. Before the Commercial Court, on
behalf of the respondents, submission was
made that on account of the order passed
by the NCLT, the matter cannot proceed
and therefore, the same be returned.

5. The Commercial Court, after
hearing the parties, referred to provisions of
Section 14 of the Code and order passed by
the NCLT under Sections 13 and 14 of the
Code. The Commercial Court also took
notice of provisions of Section 33 of the
Code providing for bar of instituting suit or
legal proceedings by or against the
corporate debtor when a liquidation order
has been passed and that the proviso to
Section 33(5) provides that proceedings can
be instituted with the prior approval of the
Adjudicating Authority and that no such
approval
has
been
produced.
The
9 All. Jaiprakash Associates Ltd. Vs. High Tech Tyre Retreaders Pvt. Ltd. & Anr.
615
Commercial Court further noticed the bar
under Section 63 of the Code barring the
jurisdiction of the civil court and came to
the conclusion that on account of the order
passed by the NCLT and for lack of any
approval from the Authorised Authority
and the bar created by Section 63, the
Commercial Court now has no jurisdiction
to hear and decide the said application
under
Section
34
of
the
Act
and
purportedly accepting the application filed
by the appellant qua lack of jurisdiction,
closed the proceedings. It further ordered
that the application be returned and the case
be consigned to record.

6. Subsequent to passing of the order,
on an application made by the respondents,
the bank guarantee furnished during
pendency of the proceedings was ordered
to be released on 19.10.2024. Whereafter,
the appellant moved an application seeking
correction in the order dated 13.09.2024
and restoration of the application which
was dismissed on 07.03.2025.

7. At the outset, learned counsel for
the
respondents
raised
preliminary
objection pertaining to maintainability of
the present appeal under Section 37 of the
Act. Submissions were made that under
Section 37(1)(c) of the Act, appeal can lie
only
against
an
order
passed
by
Commercial Court setting aside or refusing
to set aside an arbitral award under Section
34 and as by the order impugned dated
13.09.2024, only for lack of jurisdiction the
proceedings
have
been
closed
and
application has been ordered to be returned,
the order cannot be said to be 'refusing to
set aside an arbitral award' and therefore,
the appeal under Section 37 of the Act is
not maintainable. Reliance was placed on
BGS
SGS
SOMA
JV
Vs.
NHPC
LIMITED : (2020) 4 SCC 234.

8. Learned counsel for the appellant
vehemently contested the submissions
made. It was submitted that only the letter
of the order impugned is not relevant, it is
the effect of the order which is relevant for
the purpose of determining maintainability
of the appeal. It was submitted that the
order passed is ex facie illegal, contrary to
the law and essentially dismisses the
application filed by the appellant under
Section 34 of the Act and therefore, the
appeal is maintainable. Submissions were
made that the directions issued by the
NCLT and purport of Section 14 of the
Code have been totally misconstrued and
reference has been made to Section 33
which has no application as the same
applies during the liquidation process
which is not the case. The direction
ordering return of the plaint, is meaningless
as none has the jurisdiction under any
provision of law against the award other
than the Commercial Court at Kanpur
Nagar under Section 34 of the Act and as
such the effect of the order impugned is
refusing to set aside the award and
therefore, the appeal is maintainable.
Reliance
was
placed
on
ESSAR
Constructions Vs. N.P. Rama Krishna
Reddy : (2000) 6 SCC 94 and Chintels
India Limited Vs. Bhayana Builders
Private Limited : (2021) 4 SCC 602.

9.
We
have
considered
the
submissions made by counsel for the
parties and have perused the material
available on record.

10. The provisions of Section 37 of the
Act, insofar as relevant for the present
appeal, read as under:

"37.
Appealable
orders.-(1)
Notwithstanding anything contained in any
other law for the time being in force, an
616 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal shall lie from the following orders
(and from no others) to the court
authorised by law to hear appeals from
original decrees of the Court passing the
order, namely:-

(a) ... ... ...

(b) ... ... ...

(c) setting aside or refusing to set
aside an arbitral award under Section 34."

11. A plain reading of the above
provision reveals that only orders setting
aside or refusing to set aside an arbitral
award under Section 34 are appealable
under Section 37(1)(c) of the Act.

12. Hon'ble Supreme Court in the case
of BGS SGS SOMA JV (supra), while
dealing
with
a
case
wherein
the
Commercial Court, Gurugram had returned
the Section 34 petition for presentation to
the proper court having jurisdiction in New
Delhi, came to the conclusion that such an
order on a petition, for presentation before
the proper court does not fall within
Section 37 of the Act and appeal would not
be maintainable.

13. The judgment in the case of BGS
SGS SOMA JV (supra) was considered
by Hon?ble Supreme Court in the case of
Chintels India Limited (supra) wherein,
in a case where the Commercial Court
refused to condone the delay in filing
application under Section 34 of the Act
taking
into
consideration
the
?effect
doctrine?, the Supreme Court came to the
conclusion that the effect of the order
refusing to condone the delay amounts to
order refusing to set aside award, and held
the appeal maintainable under Section
37(1)(c) of the Act.

14. While discussing the 'effect
doctrine', the Hon'ble Supreme Court
referred to the judgment in ESSAR
Constructions (supra) and observed as
under:

"22. The reasoning in Essar
Constructions commends itself to us, being
on a pari materia provision to that
contained in Section 37(1)(c) of the
Arbitration Act, 1996. We may only add
that the reasoning of the aforesaid
judgment is further strengthened by our
analysis of the additional words "under
Section 34' which occur in Section
37(1)(c), and which are absent in Section
39(1)(vi) the pari materia provision to
Section 34 of the Arbitration Act, 1996
being Section 30 of the Arbitration Act,
1940.

23. In point of fact, the "effect
doctrine"
referred
to
in
Essar
Constructions is statutorily inbuilt in
Section 37 of the Arbitration Act, 1996
itself. For this purpose, it is necessary to
refer to Sections 37(1)(a) and 37(2)(a). So
far as Section 37(1)(a) is concerned, where
a party is referred to arbitration under
Section 8, no appeal lies. This is for the
reason that the effect of such order is that
the parties must go to arbitration, it being
left to the learned arbitrator to decide
preliminary points under Section 16 of the
Act, which then become the subject matter
of appeal under Section 37(2)(a) or the
subject matter of grounds to set aside under
Section 34 an arbitral award ultimately
made,
depending
upon
whether
the
preliminary points are accepted or rejected
by the arbitrator. It is also important to
note that an order refusing to refer parties
to arbitration under Section 8 may be made
on a prima facie finding that no valid
arbitration agreement exists, or on the
ground
that
the
original
arbitration
agreement, or a duly certified copy thereof
is not annexed to the application under
9 All. Jaiprakash Associates Ltd. Vs. High Tech Tyre Retreaders Pvt. Ltd. & Anr.
617
Section 8. In either case i.e. whether the
preliminary ground for moving the court
under Section 8 is not made out either by
not annexing the original arbitration
agreement, or a duly certified copy, or on
merits - the court finding that prima facie
no valid agreement exists - an appeal lies
under Section 37(1)(a).

24.
Likewise,
under
Section
37(2)(a), where a preliminary ground of
the arbitrator not having the jurisdiction to
continue with the proceedings is made out,
an appeal lies under the said provision, as
such determination is final in nature as it
brings the arbitral proceedings to an end.
However, if the converse is held by the
learned arbitrator, then as the proceedings
before the arbitrator are then to carry on,
and
the
aforesaid
decision
on
the
preliminary
ground
is
amenable
to
challenge under Section 34 after the award
is made, no appeal is provided. This is
made clear by Sections 16(5) and (6) of the
Arbitration Act, 1996 which read as
follows:

"16. Competence of Arbitral
Tribunal to rule on its jurisdiction.- (1) -
(4)

(5) The Arbitral Tribunal shall
decide on a plea referred to in sub-section
(2) or sub-section (3) and, where the
Arbitral Tribunal takes a decision rejecting
the plea, continue with the arbitral
proceedings and make an arbitral award.

(6) A party aggrieved by such an
arbitral award may make an application
for setting aside such an arbitral award in
accordance with Section 34."

25. Given the fact that the "effect
doctrine" is part and parcel of the statutory
provision for appeal under Section 37, and
the express language of Section 37(1)(c), it
is difficult to accede to the argument of
Shri Rohatgi."

15. Further, the judgment in the case
of BGS SGS SOMA JV (supra) was
distinguished by observing as under:

"32. The context in which para
17 of BGS SGS SOMA JV was made, was a
context in which an application under
Section 34 would have to be returned to the
Court which had jurisdiction to decide a
Section 34 application, dependent upon
where the seat of the Arbitral Tribunal was
located. In this context, it was held that a
mere preliminary step, which did not lead
to the application being rejected finally,
cannot be characterised as an order which
would result in the application's fate being
sealed once and for all. The Court's focus
was not on the language of Section
37(1)(c),
nor
were
any
arguments
addressed
as
to
its
correct
interpretation..."

16. From the above observations, it
would be seen that the effect of the order
passed by the Court under Section 34 of the
Act is required to be seen for the purpose of
examining the maintainability of the appeal
under Section 37(1)(c) of the Act as to
whether the order passed leaves any other
avenue for the applicant to seek redressal
against the award or the order passed puts
an end to the challenge laid to the award
passed by the Arbitral Tribunal, which in
the present case is the Council. In case, the
order passed like dismissal of application
under Section 5 of the Limitation Act,
which puts an end to the challenge to the
award, the same has been held to be
amounting to refusing to set aside the
award under Section 34 whereas in case the
application has been ordered to be returned
for being presented before an appropriate
forum, such order has been held to be nonappealable under Section 37 of the Act for
the simple reason that the avenue continues
618 INDIAN LAW REPORTS ALLAHABAD SERIES
to remain available with the applicant to
seek redressal against the award. As such,
the effect of the order passed assumes
significance while determining the aspect
of maintainability and the said aspect
cannot be determined by mere reference to
the fact as to whether the order has been set
aside or not.

17. This Court in Bharat Sanchar
Nigam Limited Vs. M/s V.L.S. Diesel
Engine
Sales
&
Services
:
2025:AHC:9344-DB,
wherein
an
application under Section 34 of the Act was
dismissed for non-compliance of provisions
of Section 19 of the MSMED Act, after
referring to judgment in the case of
Chintels India Limited (supra), came to
the following conclusion:

"15. So far as the plea raised
pertaining to the non-maintainability of the
appeal by relying on the judgment in the
case of Hindustan Copper Ltd. (supra) is
concerned, the Hon'ble Supreme Court in
the case of Chintels India Ltd. (supra),
while dealing with the said aspect in a case
where the application under Section 34 of
the Act was dismissed on the ground of
limitation, referring to "effect doctrine",
came to the conclusion that the "effect
doctrine" is part and parcel of statutory
provision for appeal under Section 37 of
the Act and the express language of Section
37(1)(c)
resulting
in
dismissal
of
application on ground of purported noncompliance of a provision, needs to be
considered on par with dismissal on merits.
The plea raised, apparently, has no
substance as, in the case of Hindustan
Copper Ltd. (supra), the dismissal was on
account of lack of territorial jurisdiction."

18. In the present case, it would be
seen that the Commercial Court, based on
the application made essentially for the
purpose of placing on record the order
passed by the NCLT has, by referring to
certain provisions of the Code, come to
the conclusion that the Court did not have
the jurisdiction to hear and decide the
matter, closed the proceedings for lack of
jurisdiction and ordered for return of the
application. The order passed returning
the
application
without
indicating
alternative forum under the Code, which
factually does not exist, seals the fate of
the application once and for all, therefore,
the same amounts to refusing to set aside
the award impugned under Section 34 of
the Act.

19. In view of the above discussion,
based on the 'effect doctrine' as laid down
in the case of Chintels India Limited
(supra), we do not find any substance in
the preliminary objection raised by counsel
for the respondents pertaining to the
maintainability of the appeal under Section
37 of the Act.

20. Consequently, the objection is
overruled.

21. List the appeal for further
proceedings on 23.09.2025, as fresh.
----------
(2025) 9 ILRA 618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.09.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Matters Under Article 227 No. 5261 of 2025

Lala Singh & Ors. ...Petitioners
Versus
Chairman Board of Revenue, Lko & Ors.
 ...Respondents