# M/S A'Xykno Capital Services Pvt. Ltd v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Civil Misc. Arbitration Application No. 13 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-a-xykno-capital-services-pvt-ltd-v-state-of-u-p-anr-50314
- **Pages:** 30

## Headnote

A. Civil Law - Arbitration and Conciliation
Act,1996-Sections
29A
&
2(1)(e)-
Maintainability
of-objection
raised
by
opposite parties regarding extension of
time under section 29A(4) to the effect that
such an application would be maintainable
only before the principal Civil Court of
original jurisdiction in a district as the
concept of 'Court' as envisaged under
section 29A read with section 2(1)(e) of the
Act 1996 does not include a High Court not
having original civil jurisdiction as in the
case of Allahabad High Court-Hence, the
application is not maintainable. (Para 69 to
70)

The application is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,905 of 103,150. This is a partial read: ask again with offset=39905 for what follows._

6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
5
(2023) 6 ILRA 5
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Misc. Arbitration Application No. 13 of 2023
and
Civil Misc. Arbitration Application No. 15 of 2023
and
Civil Misc. Arbitration Application No. 16 of 2023

M/S A'Xykno Capital Services Pvt. Ltd.
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Prashant Puri, Paavan Awasthi

Counsel for the Opposite Parties:
Samir Om, Samir Om

A. Civil Law - Arbitration and Conciliation
Act,1996-Sections
29A
&
2(1)(e)-
Maintainability
of-objection
raised
by
opposite parties regarding extension of
time under section 29A(4) to the effect that
such an application would be maintainable
only before the principal Civil Court of
original jurisdiction in a district as the
concept of 'Court' as envisaged under
section 29A read with section 2(1)(e) of the
Act 1996 does not include a High Court not
having original civil jurisdiction as in the
case of Allahabad High Court-Hence, the
application is not maintainable. (Para 69 to
70)

The application is dismissed. (E-6)

List of Cases cited:
1. Nimet Resources INC & anr.. Vs Essar Steels
Ltd. (2009) 17 SCC 313

2. K.V. Muthu Vs Angamuthu Ammal (1997) AIR
SCC 628
3. P. Kasilingam & ors. Vs P.S.G College of
Tech.(1995) Supp(2) SCC 348

4. Jayant Verma & ors. Vs U.O.I. & ors. (2018)
4 SCC 743

5. Indian Farmers Fertilizers Coop. Ltd. Vs M/s
Manish Engg. Enterprises (2022) 4 AdJ 162:
(2022) SCC Online Alld 150

6. M/S Lko Agencies & anr.. Vs U.P Avas Vikar
Parishad & ors. 2019 SCC Online Alld. 4369

7. Garhwal Mandal Vikar Nigam Ltd Vs Krishna
Travel Agency (2008) 6 SCC 741

8. St. of Mah. thru Exe. Engr. Rd. Dev. Divn.
No. 111. Panvel & anr.. Vs Atlanta Ltd (2014) 11
SCC 619

9. St. of W.B. & ors. Vs Assoc. Contractors
(2015) 1 SCC 31

10. St. of Jharkhand Vs Hindustan Cons. (2018)
2 SCC 602

11. Lko Agencies Lko thru Sole Proprietor & anr.
Vs U.P Avas Vikas Parishad thru Housing
Commission LKO & ors. (2019) SCC Online All
4369

12. M/s B.M.G Cons. Vs National Small Indus.
Corp. Ltd (2012) SCC Online Alld1042

13. Jai Bahadur Singh Vs St. of U.P. Writ-C No
41221 of 2018

14. Amit Kumar Gupta Vs Dipak Prasad (2021)
SCC Online Cal 2174

15. DDA Vs M/s Tara Chand Sumit Cons. Co.
OMP (Misc) Comm No 236 of 2019

16. Nilesh Ramanbhai Patel Vs Bhanubhai
Ramanbhai Patel (2019) 2 GLR 1537

17. Cabra Instalaciones Y. Servicies S.A. Vs
Mah. St. Electricity Distribution Co. Ltd (2019)
SCC Online Bom 1437

18. M/s Lots Shipping Co. Ltd Vs Cochin Port
Trust Board of Trustees (2020) AIR Ker. 169
6 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Pritish Kumar, Mr. Amal
Rastogi and Mr. Prashasht Puri, learned
counsels for applicant(s) and Mr. Sandeep
Dixit, Senior Advocate assisted by Ms.
Radhika Verma, Mr. Samir Om, Mr. Bhanu
Bajpai as well as Mr. Mukund Tewari,
learned counsel for opposite parties.

2. Issue under consideration is with
regard to extension of time under Section
29A(4) of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the Act
of 1996) with the question involved being
:--

Whether the concept of 'Court' as
envisaged under Section 29A read with
Section 2(1)(e) of the Act of 1996 would
include a High Court not having original
civil jurisdiction as in the case of
Allahabad High Court?

3. A preliminary objection with regard
to maintainability of this Application for
extension of mandate under Section 29A of
the Act of 1996 has been taken by opposite
parties to the effect that such an application
would be maintainable only before the
principal Civil Court of original jurisdiction
in a district or to a High Court which
exercises ordinary original civil jurisdiction,
having jurisdiction to decide the questions
forming the subject-matter of the arbitration
as if the same had been the subject-matter of
a suit but since the Allahabad High Court
does not exercise such original civil
jurisdiction,
the
application
would
be
cognizable only before commercial court and
not the Allahabad High Court.

4. Mr. Sandeep Dixit, Senior Advocate
expounding the aforesaid proposition has
raised the following arguments:-

(i) Section 2(1)(e) of the Act of
1996 clearly indicates the definition of
'Court' to be the principal Civil Court of
original jurisdiction in a district, and would
include the High Court only in case such a
High Court is exercising ordinary original
civil jurisdiction also having jurisdiction to
decide questions forming subject-matter of
arbitration if the same had been the subjectmatter of a suit. It is submitted that as such
in view of clear definition of the term
'Court', the said term indicated in Section
29A of the Act of 1996 would be referable
to such a definition whereby an application
preferred under Section 29A of the Act in
the State of U.P. would be maintainable
only before principal Civil Court of
original jurisdiction, which in this case
would be the commercial court and not the
High Court.

(ii) There being no ambiguity
in the definition of term 'Court' as
indicated in Section 2(1)(e) of the Act of
1996, no original jurisdiction can be
ascribed to Allahabad High Court and as
such it is only the principal Civil Court
where such an application would be
maintainable.

(iii) That definition of 'Court' as
per Section 2(1)(e) of the Act of 1996 has
to be maintained with regard to provisions
of the Act of 1996 and cannot keep
changing with each Section.

(iv) Once an appointment of
Arbitrator has been made under Section
11(6) of the Act, High Court would become
functus officio whereby the proceedings
would come to an end and cannot be
carried further to include extension of
mandate under Section 29A of the Act.

(v) That there is no provision for
bifurcation under Section 29A of the Act
with regard to arbitrators being appointed
mutually or by intervention of Court under
Section 11(6) of the Act of 1996.
6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
7

(vi) Analogy has been drawn
where arbitrator is appointed under Section
11(6) of the Act of 1996 and an award is
passed, the same is challengeable only
before the principal Civil Court of original
jurisdiction under Section 34 of the Act and
for such purpose, the High Court cannot be
considered to be 'Court' having original
jurisdiction.

(vii) That even in case of
termination
of
mandate
where
an
application is required to be filed under
Section 14 of the Act, the same is also
maintainable only with the commercial
court and not the High Court and same
analogy would be applicable in case of
extension of mandate under Section 29A of
the Act.

(viii) Distinction under Section
10(2) and Section 10(3) of the Commercial
Courts Act, 2015 has been adverted to
whereby such procedure is required to be
followed by filing an application only
before the principal Civil Court having
original jurisdiction.

(ix) A specific time frame under
Section 29A(9) of the Act of 1996 has been
indicated in the statute, which cannot bind
a Constitutional court in exercise of its
powers for extension of mandate and
therefore such a provision can only refer to
the principal Civil Court and not to High
Court.

5.
Mr.
Mukund
Tiwari,
learned
counsel appearing on behalf of the
Lucknow Development Authority has made
the following submissions:-

(i) As per the Arbitration and
Conciliation Act, 1940, definition of Court
had been provided under Section 2(c)
which pertained only to a Civil Court
having original jurisdiction and did not
include a High Court. It is further
submitted that under Section 28 of the Act,
Powers of extension of mandate of
arbitrator were provided to Civil Court
having original jurisdiction with time limit
being indicated in clause (3) of Schedule 1
of the Act of 1940.

(ii) It is submitted that Section
29A of the Act has been added subsequent
to notification of the Act and it is not a self
contained provision but has to be seen in
conjunction with other provisions of the
Act as well.

(iii) Attention has been drawn to
Sections 47 & 56 of the Act of 1996 to
submit that earlier provision including Civil
Court of original jurisdiction has now been
omitted by means of an amendment and it
is now only the High Court which can take
cognizance under the aforesaid Sections.
Argument has been raised that High Court
has been included as having jurisdiction in
particular matters only, in the wisdom of
Legislature and such deliberate intention of
legislature cannot be over-ridden.

(iv) That the word 'means' used in
the definition of term 'Court' under Section
2(1)(e) of the Act of 1996 is exclusionary
in nature and not inclusionary particularly
since the word 'means' is not followed
immediately with the words 'and includes'.

(v) That under the Act of 1996, a
departure has been made in the definition
of term 'Court' from the earlier definition in
the Act of 1940 but only to include a High
Court in a case only where High Court
exercises original jurisdiction.

(vi) It has been further submitted
that in the present case since there is no
ambiguity in the definition of term 'Court'
under Section 2(1)(e) of the Act of 1996, no
purposive interpretation can be resorted to.

(vii) The words 'unless the
context otherwise requires' would be
applicable only in case there is ambiguity
in the definition or its applicability and
8 INDIAN LAW REPORTS ALLAHABAD SERIES
where the strict interpretation would lead to
absurd results.

(viii) It is also submitted that
where the words 'means' and 'includes' are
not used conjointly, the meaning/definition
has to be given a confined definition.

Learned
counsel
has
also
adverted to various judgments to indicate
the purpose and intent of the Act of 1996
with attention being drawn to various
provisions to submit that a High Court not
having original jurisdiction cannot be
included in the definition of term 'Court' as
envisaged under Section 29A.

6. Per contra, Mr. Pritish Kumar,
learned counsel for applicant has submitted
the following:-

(i) The definition as given under
Section 2(1)(e) of the Act of 1996 is
required
to
be
given
a
purposive
construction in order to achieve the ends
for which it was inserted and for that
purpose it has to be read along with
provisions of Section 11(6) of the Act of
1996.

(ii) As per the purpose and intent
of the Act of 1996, powers of appointment
and therefore substitution or extension of
mandate is required to be exercised by the
highest judicial authority/Court in order to
instill confidence in the proceedings and
also not to prolong such arbitration
proceedings which are required to be
concluded expeditiously.

(iii) Power for extension of
mandate under Section 29A of the Act of
1996 is required to be exercised by the
High Court even though it does not have
original civil jurisdiction to obviate an
anomalous situation where an arbitrator is
appointed by High Court and could very
well be substituted by a subordinate court
such as the commercial court.

(iv) That the words 'unless the
context otherwise requires' itself indicates
that the definition is not conclusive and is
in fact required to be molded to be in
accordance with the purpose and intent of
different Sections of the Act of 1996.

(v) Learned counsel has also
adverted to various judgments to submit
that even though the court once having
exercised powers under Section 11(6) of
the Act of 1996 becomes functus officio but
still retains power of review and as such
finality cannot be attached to the term
'functus officio'.

(vi) The power to substitute an
Arbitrator as envisaged under Section 29A
of the Act of 1996 automatically is
referable to the power to appoint the
arbitrator, which in turn would be referable
to powers exercised under Section 11(6) of
the Act.

(vii) That even in case of
appointment of arbitrator under Section 11
with intervention of Court, a time limit has
been prescribed under Section 11(13) of the
Act of 1996 and as such the argument
raised by learned counsel for opposite party
that a time frame cannot be made
applicable to Constitutional Courts such as
the High Court is not correct.

7. Mr. Prashasth Puri, learned counsel
for petitioner appearing in CIVIL MISC.
ARBITRATION APPLICATION No. - 13
of 2023 while adopting most of the
arguments raised by Mr. Pritish Kumar, has
adverted also to the fact that the power to
substitute an arbitrator under Section 29A
of the Act of 1996 would be referable to the
power to appoint arbitrator under Section
11(6) of the Act as also to the aspect of
anomaly in case an arbitrator appointed by
a High Court is substituted by a Court
subordinate thereto such as the commercial
court.
6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
9

8. For proper appreciation of question
at hand, it would be apposite to consider
the relevant provisions of Section 2 and
Section 29 of the Act of 1996, which are as
follows:-

"Section
2
in
THE
ARBITRATION AND CONCILIATION
ACT, 1996

2 Definitions. -(1) In this Part,
unless the context otherwise requires,-

(a)"arbitration"
means
any
arbitration whether or not administered by
permanent arbitral institution;

(b)"arbitration agreement" means
an agreement referred to in section 7;

(c)"arbitral award" includes an
interim award;

(d)"arbitral tribunal" means a
sole arbitrator or a panel of arbitrators;

2[(e)"Court" means-

(i) in the case of an arbitration
other
than
international
commercial
arbitration, 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-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;

(ii) in the case of international
commercial arbitration, 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-matter of a suit, and in other cases,
a High Court having jurisdiction to hear
appeals from decrees of courts subordinate
to that High Court;]

2[29A. Time limit for arbitral
award. (1) The award shall be made within
a period of twelve months from the date the
arbitral tribunal enters upon the reference.

Explanation. For the purpose of
this sub-section, an arbitral tribunal shall
be deemed to have entered upon the
reference on the date on which the
arbitrator or all the arbitrators, as the case
may be, have received notice, in writing, of
their appointment.

(2) If the award is made within a
period of six months from the date the
arbitral tribunal enters upon the reference,
the arbitral tribunal shall be entitled to
receive such amount of additional fees as
the parties may agree.

(3) The parties may, by consent,
extend the period specified in sub-section
in sub-section (1) for making award for a
further period not exceeding six months.

(4) If the award is not made
within the period specified in sub-section
(1) or the extended period specified under
sub-section (3), the mandate of the
arbitrator(s) shall terminate unless the
Court has, either prior to or after the
expiry of the period so specified, extended
the period:

Provided that while extending the
period under this sub-section, if the Court
finds that the proceedings have been
delayed for the reasons attributable to the
arbitral tribunal, then, it may order
reduction of fees of arbitrator(s) by not
exceeding five per cent. for each month of
such delay.

(5) The extension of period
referred to in sub-section (4) may be on the
application of any of the parties and may
be granted only for sufficient cause and on
such terms and conditions as may be
imposed by the Court. (6) While extending
the period referred to in sub-section (4), it
shall be open to the Court to substitute one
or all of the arbitrators and if one or all of
be arbitrators are substituted, the arbitral
10 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings shall continue from the stage
already reached and on the basis of the
evidence and material already on record,
and the arbitrator(s) appointed under this
section shall be deemed to have received
the said evidence and material.

(7) In the event of arbitrator(s)
being appointed under this section, the
arbitral tribunal thus reconstituted shall be
deemed to be in continuation of the
previously appointed arbitral tribunal.

(8) It shall be open to the Court
to impose actual or exemplary costs upon
any of the parties under this section.

(9) An application filed under subsection (5) shall be disposed of by the Court
as expeditiously as possible and endeavour
shall be made to dispose of the matter within
a period of sixty days from the date of service
of notice on the opposite party.

9. Since the present dispute pertains to
jurisdiction
of
the
Court
concerned
regarding
extension
of
mandate
of
arbitrator, a brief legislative history of the
said provision would also be required to be
seen in order to achieve a better perspective
of the dispute.

10. Prior to advent of the Act of 1996,
the Arbitration Act, 1940 held the field in
which definition of the word 'Court' was
given under Section 2(c) which was as
follows:

'(c) "Court" means a Civil Court
having jurisdiction to decide the question
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 proceedings under section
21, include a Small Cause Court;'

11. Section 28 of the Act provided for
extension of time to the Court in its
discretion to enlarge from time to time, the
time for making award. Schedule I clause 3
enjoined the Arbitrators to make their
award within four months after entering on
the reference or after having been called
upon to act by notice in writing from any
party to the arbitration or within such
extended time as the Court may allow.

12. The aforesaid provisions of the Act
of 1940 seen in the context of definition of
the word 'Court' as defined under Section
2(c) of the said Act clearly meant a Civil
Court having civil jurisdiction to decide the
question forming the subject matter of
reference. Exception pertained to small
cause court. It is noticeable that the High
Court as such did not enter into the picture
with regard to said question under the Act
of 1940.

13. With the advent of the Act of 1996,
Section 29A pertaining to extension of
mandate of arbitrator was included for the
first time by means of Act no.3 of 2016
with effect from 23.10.2015.

14. It is also a relevant fact that at the
time of enactment of the Act of 1996, the
definition of 'Court' defined under section
2(1)(e) was as follows:

"2 Definitions. -(1) In this Part,
unless the context otherwise requires,-

2[(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-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;."
6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
11

15. The current definition of 'Court'
has also been inserted by means of Act
No.3 of 2016 with effect from 23.10.2015
whereby
a
distinction
has
been
incorporated in case of an arbitration other
than international commercial arbitration
viz-a-viz in the case of international
commercial arbitration. It is noticeable that
after amendment in the year 2016, the
distinction as indicated in Section 2(i)(e) is
that in case of an arbitration other than
international commercial arbitration, the
meaning of 'Court' includes the principal
Civil Court of original jurisdiction in a
district and includes the High Court in
exercise of its ordinary original civil
jurisdiction. In the case of international
commercial arbitration, it is only the High
Court in exercise of its ordinary original
jurisdiction
which
comes
under
the
definition of 'Court' with the principal Civil
Court
of
original
jurisdiction
being
excluded.

16. The distinction in the meaning of
word 'Court' under Section 2 of the Act of
1996
pertaining
to
domestic
and
international arbitrations as such is quite
glaring and requires to be given proper
importance. It cannot be said that the
legislature in its wisdom has inadvertently
omitted or included words 'principal Civil
Court' of original jurisdiction in one part
while excluding it from the other part. It is
settled law that words as inserted in statute
have to be given the literal interpretation
unless it results in absurdity or is in
contradiction to another part thereof or
statute.

17. In the considered opinion of this
Court, the omission of a Civil Court of
original jurisdiction in a district with regard
to international arbitrations is therefore
quite important and would mean that such a
principal
Civil
Court
of
Original
Jurisdiction would exercise powers with
regard to domestic arbitrations and would
be excluded only in case such powers are
also required to be exercised by a High
Court having simultaneous jurisdiction but
only in case such a High Court exercises
not only original civil jurisdiction but also
having jurisdiction to decide questions
forming subject matter of the arbitration in
case the same had been the subject matter
of a suit.

18. In the context of Section 29A of
the Act as such, the powers of a Civil Court
of a district having original jurisdiction can
be readily inferred to the exclusion of the
High Court only when such High Court
exercises power as indicated in Section
2(1)(e)(i) of the Act.

19. It has been contended by learned
counsel for applicants that the words
'unless the context otherwise requires'
appearing at the start of Section 2 of the
Act of 1996 are material and indicates
flexibility
in
the
definition
clause.
However the aforesaid words have clearly
been explained by Hon'ble the Supreme
Court in the case of Nimet Resources INC
& Anr. versus Essar Steels Limited
reported in (2009) 17 SCC 313 in the
following terms:

"13. The definition of "court"
indisputably would be subject to the context
in which it is used. It may also include the
appellate courts. Once the legislature has
defined a term in the interpretation clause,
it is not necessary for it to use the same
expression in other provisions of the Act. It
is well settled that meaning assigned to a
term as defined in the interpretation clause
unless the context otherwise requires
should be given the same meaning.
12 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It is also well settled that in
the absence of any context indicating a
contrary intention, the same meaning
would be attached to the word used in the
later as is given to them in the earlier
statute. It is trite that the words or
expression used in a statute before and
after amendment should be given the same
meaning. It is a settled law that when the
legislature uses the same words in a similar
connection, it is to be presumed that in the
absence of any context indicating a
contrary intention, the same meaning
should attach to the words. (See Lennon v.
Gibson & Howes Ltd. [1919 AC 709 (PC)]
, AC at p. 711, Craies on Statute Law, 7th
Edn., p. 141 and G.P. Singh's Principles of
Statutory Interpretation, 10th Edn., p.
278.)"

20. The aforesaid judgment was
rendered explaining the definition of 'Court'
with regard to an application under Section
14 of the Act of 1996 and clearly is a
proposition that words or expression used
in statute are to be given the same meaning
in the absence of any context indicating a
contrary intention. The said words have
also been explained by Hon'ble the
Supreme Court in the case of Pandey and
Co. Builders Pvt. Ltd. versus State of Bihar
and Ors. reported in (2007)1 SCC 467 and
S.K. Gupta & Anr. versus K.P. Jain & Anr
reported in (1979) 3 SCC 54 in which it has
been held that even when a definition
clause is preceded by the words unless the
context otherwise requires, normally the
definition given in the section should be
applied and given effect to and that the
frame of any definition more often then not
is capable of being made flexible but
precision and certainty in law requires that
it should not be made loose but kept tight
as far as possible.

21. Learned counsel for applicants
themselves have adverted to judgment
rendered by Hon'ble the Supreme Court in
the case of K.V. Muthu v. Angamuthu
Ammal reported in AIR 1997 Supreme
Court 628 is in the following terms;

"12.Where
the
definition
or
expression, as in the instant case, is
preceded by the words "unless the context
otherwise requires", the said definition set
out in the Section is to be applied and given
effect to but this rule, which is the normal
rule may be departed from if there be
something in the context to show that the
definition could not be applied."

22. Upon applicability of aforesaid
judgment, it is evident that it is the
consistent law enunciated by Hon'ble the
Supreme Court that even where a definition
clause is preceded by words, 'unless context
otherwise requires', the definition as given
in the statute is required to be adhered to
until and unless it is unworkable and leads
to absurdity.

23. It is also relevant to consider the
words 'means' 'and includes' as occurring in
the definition clause. It is also relevant to
indicate that both the terms are occurring in
separate places of the definition clause
and not together. It is settled law that
wherever the word 'means' occurs in a
definition, it is exclusionary whereas the
words 'and includes' is expansive in
nature. In this context, it is a relevant fact
that while defining the word Court, the
word 'means' has been inserted without
the concomitant wordings 'and includes'
with
the
later
occurring
only
subsequently to include a High Court
alongwith a Principal Civil Court of
Original Jurisdiction.
6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
13

24. The aforesaid terms have been
defined and explained by Hon'ble the
Supreme Court in the case of P. Kasilingam
&
Ors.
versus
P.S.G.
College
of
Technology reported in 1995 Supp(2) SCC
348 in the following terms:

19. ....................... It has been
urged that in Rule 2(b) the expression
"means and includes" has been used which
indicates that the definition is inclusive in
nature and also covers categories which
are not expressly mentioned therein. We are
unable to agree. A particular expression is
often defined by the Legislature by using
the word 'means' or the word 'includes'.
Sometimes the words 'means and includes'
are used. The use of the word 'means'
indicates that "definition is a hard-and-fast
definition, and no other meaning can be
assigned to the expression than is put down
in definition". (See :Gough v.Gough[(1891)
2 QB 665 : 60 LJ QB 726]; Punjab Land
Development and Reclamation Corpn.
Ltd.v. Presiding Officer, Labour Court
[(1990) 3 SCC 682, 717 : 1991 SCC (L&S)
71].) The word 'includes' when used,
enlarges the meaning of the expression
defined so as to comprehend not only
such things as they signify according to
their natural import but also those
things which the clause declares that
they shall include. The words "means
and includes", on the other hand,
indicate "an exhaustive explanation of
the meaning which, for the purposes of
the Act, must invariably be attached to
these
words
or
expressions".
(See
:Dilworth v.Commissioner of Stamps
[1899 AC 99, 105-106 : (1895-9) All ER
Rep
Ext
1576]
(Lord
Watson);
Mahalakshmi Oil Mills v. State of A.P.
[(1989) 1 SCC 164, 169 : 1989 SCC
(Tax) 56]. .........................

25. Upon applicability of aforesaid
judgment in the present scenario and
particularly the aspect that the words
'means' and 'and includes' having not been
used conjointly in Section 2 would clearly
indicate that the definition of Court is to be
given a restrictive meaning and it is only
the jurisdictional aspect of a Civil Court
viz-a-viz a High Court which requires to be
given an expansive meaning. Even then the
expansive definition would be curtailed to
the extent of power of High Court as
indicated in the definition clause and
cannot travel beyond that.

26. Hon'ble the Supreme Court in a
number
of
decisions
has
clearly
propounded the law that when the language
of
statutory
provision
is
plain
and
unambiguous,
it
is
determinative
of
legislative intent and as such has to be
given the meaning attached to such
wordings. It has also been held that while
interpreting a provision, Courts cannot
legislate particularly when the language of
statute
is
plain
and
unambiguous,
whereafter the concept of casus omissus
cannot be supplied by judicial interpretative
process.

27. The said enunciation of law would
be evident from judgment rendered by
Hon'ble the Supreme Court in the case of
Union of India & Ors versus Priyankan
Sharan & Anr. reported in AIR 2009 SC
(Supp) 972 in the following terms:

"19. It is well settled principle in
law that the Court cannot read anything
into a statutory provision which is plain
and unambiguous. A statute is an edict of
the Legislature. The language employed in
a statute is the determinative factor of
legislative intent.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Words and phrases are
symbols that stimulate mental references to
referents. The object of interpreting a
statute is to ascertain the intention of the
Legislature enacting it. (See Institute of
Chartered Accountants of India v. M/s
Price Waterhouse and Anr. (AIR 1998 SC
74). The intention of the Legislature is
primarily to be gathered from the language
used, which means that attention should be
paid to what has been said as also to what
has not been said. As a consequence, a
construction which requires for its support,
addition or substitution of words or which
results in rejection of words as meaningless
has to be avoided. As observed in Crawford
v. Spooner (1846 (6) Moore PC 1), Courts,
cannot aid the Legislatures' defective
phrasing of an Act, we cannot add or mend,
and by construction make up deficiencies
which are left there. (See The State of
Gujarat and Ors. v. Dilipbhai Nathjibhai
Patel and Anr. (JT1998 (2) SC 253)). It is
contrary to all rules of construction to read
words into an Act unless it is absolutely
necessary to do so. (See Stock v. Frank
Jones (Tiptan) Ltd. (1978 1 All ER 948
(HL). Rules of interpretation do not permit
Courts to do so, unless the provision as it
stands is meaningless or of doubtful
meaning. Courts are not entitled to read
words into an Act of Parliament unless
clear reason for it is to be found within the
four corners of the Act itself. (Per Lord
Loreburn L.C. in Vickers Sons and Maxim
Ltd. v. Evans (1910) AC 445 (HL), quoted
in
Jamma
Masjid,
Mercara
v.
Kodimaniandra Deviah and Ors. (AIR
1962 SC 847).

22. In Dr. R. Venkatchalam and
Ors. etc. v. Dy. Transport Commissioner
and Ors. etc. (AIR 1977 SC 842), it was
observed that Courts must avoid the danger
of a priori determination of the meaning of
a provision based on their own preconceived notions of ideological structure
or scheme into which the provision to be
interpreted is somewhat fitted. They are not
entitled to usurp legislative function under
the disguise of interpretation.

23. While interpreting a provision
the Court only interprets the law and
cannot legislate it. If a provision of law is
misused and subjected to the abuse of
process of law, it is for the legislature to
amend, modify or repeal it, if deemed
necessary. (See Commissioner of Sales Tax,
M.P. v. Popular Trading Company, Ujjain
(2000 (5) SCC 515). The legislative casus
omissus cannot be supplied by judicial
interpretative process."

28. From a consideration of aforesaid
judgments, it is evident that statutory
provisions are not to be interpreted at the
whims
and
fancies
or
personal
interpretation/views but are required to be
given their literal meaning, which have been
included in the wisdom of the legislature,
particularly when the plain and simple
language employed in a provision of statute is
clear, unambiguous and does not lead to any
absurd result. The principles of casus omissus
are required to be supplied sparingly and in
exceptional circumstances as indicated in the
judgments referred to hereinabove.

29. In the present case, it is evident
that the definition of word 'Court' as
envisaged under section 2(1)(e) of the Act
of
1996
is
clear
and
unambiguous
particularly when seen in the context of
distinction indicated in international and
domestic arbitrations. The intention of
legislature in including a High Court only
in case where it has original jurisdiction is
clearly discernible.

30. The aspect can also be examined
from another prespective i.e. incorporating
6 All. M/S A'Xykno Capital Services Pvt. Ltd. Vs. State of U.P. & Anr.
15
the doctrine of pith and substance which
includes examination of statutory provision
to deduce its true nature and character.
Although the aforesaid doctrine is generally
used for the purpose of determining
whether a legislation is with regard to a
particular list as per VIIth Schedule of the
Constitution of India but since it is used to
determine the true nature and character of a
statutory provision, in the considered
opinion of this Court, the same can be
made applicable in the present facts and
circumstances which have been explained
in the recent judgment of Hon'ble the
Supreme Court in the case of Jayant Verma
and Ors. versus Union of India & Ors.
reported in (2018) 4 SCC 743 in the
following manner:

" ...................... 35. Moreover,
the British Parliament when enacting the
Indian Constitution Act had a long
experience of the working of the British
North America Act and the Australian
Commonwealth Act and must have known
that it is not in practice possible to ensure
that the powers entrusted to the several
legislatures will never overlap. As Sir
Maurice Gwyer, C.J. said in Subrahmanyan
Chettiar v. Muthuswami Goundan, 1940
SCC OnLine FC 9 : (1940) 2 FCR 188 :
AIR 1941 FC 47] : (FCR p. 201 : SCC
OnLine FC)

'It must inevitably happen from
time to time that legislation, though
purporting to deal with a subject in one
List, touches also on a subject in another
List, and the different provisions of the
enactment may be so closely intertwined
that blind adherence to a strictly verbal
interpretation would result in a large
number of statutes being declared invalid
because the legislature enacting them may
appear to have legislated in a forbidden
sphere. Hence the rule which has been
evolved by the Judicial Committee whereby
the impugned statute is examined to
ascertain its "pith and substance" or its
"true nature and character", for the
purpose of determining whether it is
legislation with respect to matters in this
List or in that:"

36. Their Lordships agree that
this
passage
correctly
describes
the
grounds on which the rule is founded, and
that it applies to provincial as well as to
dominion legislation. No doubt experience
of past difficulties has made the provisions
of the Indian Act more exact in some
particulars, and the existence of the
Concurrent List has made it easier to
distinguish between those matters which
are essential in determining to which list
particular provisions should be attributed
and those which are merely incidental. But
the overlapping of subject-matter is not
avoided by substituting three lists for two
or even by arranging for a hierarchy of
jurisdictions.

37. Subjects must still overlap
and where they do the question must be
asked what in pith and substance is the
effect of the enactment of which complaint
is made and in what List is its true nature
and character to be found. If these
questions could not be asked, much
beneficent legislation would be stifled at
birth, and many of the subjects entrusted to
provincial
legislation
could
never
effectively be dealt with. ......................."

31.
Even
upon
applicability
of
aforesaid doctrine, the true nature and
character of the definition of Court under
section 2 of the Act of 1996 clearly
indicates inclusion of a High Court as a
'Court' only when it exercises not only
original civil jurisdiction but also has the
jurisdiction to decide questions forming
subject matter of arbitration if the same had
16 INDIAN LAW REPORTS ALLAHABAD SERIES
been the subject matter of a suit. Therefore,
these twin conditions are sine qua non for
inclusion of a High Court as a Court
defined under Section 2 of the Act of 1996.

32. Learned counsel for applicants
have placed heavy reliance upon judgment
rendered by a coordinate Bench of this
Court in Indian Farmers Fertilizers
Cooperative
Ltd.
v.
M/s
Manish
Engineering Enterprises reported in 2022
(4) ADJ 162: 2022 SCC Online Allahabad
150. Aforesaid judgment rendered by
coordinate Bench of this Court has
specifically gone into the aspect of
definition of 'court' as envisaged under
Section 29A of the Act of 1996 and has
held that an application for extension of
time for arbitral award filed under Section
29A would be maintainable before the High
Court even though not having original
jurisdiction.

33. A perusal of aforesaid judgment
makes it evident that the proposition of law
followed in the said judgment has been
indicated in following paragraphs:-

"35. Once the appointment of
arbitrator or arbitral Tribunal has been
made by the High Court or the Supreme
Court exercising power under sub-sections
(4), (5) and (6) of Section 11 then the power
to substitute the arbitrator or the Arbitral
Tribunal only vest with the said appointing
authority i.e. High Court or Supreme
Court, as the case may be.

36. The argument raised from the
side opposite that the word 'Court'
occurring in Section 2(1)(e) means the
principal Civil Court and not the High
Court cannot be accepted, as once the
appointment was made by the High Court
exercising power under Section 11, the
power to substitute an arbitrator cannot
vest under sub-section (6) of Section 29A
with the principal Civil Court.

43. Here, we are concerned with
the extension of time limit for the arbitral
award under Section 29A, wherein an
arbitrator has been appointed by the High
Court exercising power under Section 11 of
the Act. Section 42 will not be attracted and
it is only the High Court which has the
power to grant extension to the Arbitral
Tribunal for making award."

34. As per the judgment, the primary
aspect of holding the High Court to have
jurisdiction for extension of mandate under
Section 29A of the Act of 1996 is that once
the appointment of Arbitrator has been
made by the High Court or the Supreme
Court exercising powers under SubSections (4), (5) & (6) of Section 11 then
the power to substitute the arbitrator can
rest only with the appointing authority
which would be the High Court or the
Supreme Court, as the case may be and
therefore the definition of the word 'Court'
occurring in Section 2(1)(e) cannot be
accepted to be that of the principal Civil
Court and not the High Court.

35. The entire analogy of including a
High Court not vested with original civil
jurisdiction appears to be the fact that the
power to substitute an arbitrator would be
co-terminus with the power to appoint an
Arbitrator.