# M/S Devi Dayal Trust & Ors v. M/S Rajhans Towers Pvt. Ltd

- **Citation:** (2024) 5 ILRA 1242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Matter Under Article 227 No. 2199 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-devi-dayal-trust-ors-v-m-s-rajhans-towers-pvt-ltd-52027
- **Pages:** 10

## Headnote

Civil Law - Constitution of India,1950 -
Article 227- Arbitration and Conciliation Act,
1996 - - Sections 11, 34 & 42 - Petitioner-
Commercial Court's order holding lack of
territorial
jurisdiction
to
adjudicate
application under Section 34 of the Act
challenged- Section 42 of the Act- Once an
application filed under Part I of the Act in a
court- Subsequent applications pertaining to
the same arbitral agreement to be made
before
the
same
court-
Principle
of
jurisdictional exclusivity- ensures uniformity
in
adjudication
of
arbitral
matters-
Applications under Sections 8 and 11 are
exception to the bar placed by Section 42-
Venue cannot be exalted to the status of
seat- Doctrine of forum non conveniens not
applicable- Application under Section 34 to
be filed before Gautam Buddh Nagar Court-
Article 227 of the Constitution of India- High
Court can set aside the order passed by
Commercial Court- Petition allowed. (Paras
8, 10, 16, 17 and 20)

HELD:
Section 42 of the Act encapsulates the principle of
jurisdictional exclusivity. It stipulates that once an
application under Part 1 of the Act is made in a court
with respect to an arbitration agreement, all
subsequent applications under Part 1 of the Act will
have to made before that court only. By vesting
exclusive jurisdiction in a single court, Section 42 of
the Act obviates the possibility of conflicting
judgements and ensures uniformity in the
adjudication of arbitral matters. (Para 8)

As such, the argument presented by the
Respondents that since the application under
Section 11 of the Act was made before the High
Court of Delhi, all subsequent applications will
have to be made before the High Court of Delhi,
is devoid of any merit and is rejected. The
rationale underlying this exception lies in the
recognition
of
the
distinctive
nature
of
applications under Section 8 and Section 11 of
the
Act,
which
necessitate
specialized
adjudication
and
prompt
intervention.
Furthermore, since the arbitral clause between
the parties, provides for only a venue and not a
seat, it is not open for the respondent to argue
that the venue in the instant case should be
exalted to the status of seat. This is due to the
bar placed by Section 42 of the Act, since an
application under Section 9 had already been
filed before the District Court at Gautam Buddh
Nagar. (Para 10)

The question that remains now is whether this
Court in exercise of its powers under Article 227
5 All. M/S Devi Dayal Trust & Ors. Vs. M/S Rajhans Towers Pvt. Ltd.
1243
of the Constitution of India can set aside the
impugned order passed by the District Court at
Gautam Buddh Nagar returning the application
filed under Section 34 of the Act for want of
territorial jurisdiction. (Para 17)

Article 227 of the Constitution of India bestows
upon the High Courts an extraordinary power of
superintendence over all courts and tribunal
within their respective jurisdiction. This power is
a
potent
tool
for
ensuring
the
proper
administration of justice and upholding the rule
of law. It serves as a bulwark against judicial
error, administrative excess, and procedural
irregularity. Power of superintendence under
Article 227 is inherent in the High Courts by virtue
of their status of superior courts of record. This
inherent jurisdiction enables the High Courts to
exercise oversight over all subordinate courts and
tribunals,
irrespective
of
whether
specific
statutory provisions provide for such supervision.
(Para 18)

Petition allowed. (E-14)

List of Cases cited:

## Text

1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Ltd. (Supra), which has been followed in
Emkay Global Financial Services Ltd.
(Supra), the Courts at Lucknow alone will
have the jurisdiction to adjudicate upon an
application under Section 34 of the Act and
the respondent has rightly filed the
application under Section 34 of the Act at
Lucknow.

42. In view of the aforesaid
discussion, I am of the considered view that
there is no illegality in the impugned order
dated 07.03.2024 passed by the Commercial
Court No. 2, Lucknow in Arbitration Case
No. 126 of 2023 rejecting the petitioner's
objection regarding lack of territorial
jurisdiction at Lucknow.

43. The petition lacks merits and is
hereby dismissed.
----------
(2024) 5 ILRA 1242
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matter Under Article 227 No. 2199 of 2023

M/S Devi Dayal Trust & Ors. ...Petitioners
Versus
M/S Rajhans Towers Pvt. Ltd.
 ...Respondent

Counsel for the Petitioners:
Sri Manish Goyal, Sr. Adv., Sri Nikhil Mishra

Counsel for the Respondent:
Sri Munna Pandey, Sri Harshit Pandey

Civil Law - Constitution of India,1950 -
Article 227- Arbitration and Conciliation Act,
1996 - - Sections 11, 34 & 42 - Petitioner-
Commercial Court's order holding lack of
territorial
jurisdiction
to
adjudicate
application under Section 34 of the Act
challenged- Section 42 of the Act- Once an
application filed under Part I of the Act in a
court- Subsequent applications pertaining to
the same arbitral agreement to be made
before
the
same
court-
Principle
of
jurisdictional exclusivity- ensures uniformity
in
adjudication
of
arbitral
matters-
Applications under Sections 8 and 11 are
exception to the bar placed by Section 42-
Venue cannot be exalted to the status of
seat- Doctrine of forum non conveniens not
applicable- Application under Section 34 to
be filed before Gautam Buddh Nagar Court-
Article 227 of the Constitution of India- High
Court can set aside the order passed by
Commercial Court- Petition allowed. (Paras
8, 10, 16, 17 and 20)

HELD:
Section 42 of the Act encapsulates the principle of
jurisdictional exclusivity. It stipulates that once an
application under Part 1 of the Act is made in a court
with respect to an arbitration agreement, all
subsequent applications under Part 1 of the Act will
have to made before that court only. By vesting
exclusive jurisdiction in a single court, Section 42 of
the Act obviates the possibility of conflicting
judgements and ensures uniformity in the
adjudication of arbitral matters. (Para 8)

As such, the argument presented by the
Respondents that since the application under
Section 11 of the Act was made before the High
Court of Delhi, all subsequent applications will
have to be made before the High Court of Delhi,
is devoid of any merit and is rejected. The
rationale underlying this exception lies in the
recognition
of
the
distinctive
nature
of
applications under Section 8 and Section 11 of
the
Act,
which
necessitate
specialized
adjudication
and
prompt
intervention.
Furthermore, since the arbitral clause between
the parties, provides for only a venue and not a
seat, it is not open for the respondent to argue
that the venue in the instant case should be
exalted to the status of seat. This is due to the
bar placed by Section 42 of the Act, since an
application under Section 9 had already been
filed before the District Court at Gautam Buddh
Nagar. (Para 10)

The question that remains now is whether this
Court in exercise of its powers under Article 227
5 All. M/S Devi Dayal Trust & Ors. Vs. M/S Rajhans Towers Pvt. Ltd.
1243
of the Constitution of India can set aside the
impugned order passed by the District Court at
Gautam Buddh Nagar returning the application
filed under Section 34 of the Act for want of
territorial jurisdiction. (Para 17)

Article 227 of the Constitution of India bestows
upon the High Courts an extraordinary power of
superintendence over all courts and tribunal
within their respective jurisdiction. This power is
a
potent
tool
for
ensuring
the
proper
administration of justice and upholding the rule
of law. It serves as a bulwark against judicial
error, administrative excess, and procedural
irregularity. Power of superintendence under
Article 227 is inherent in the High Courts by virtue
of their status of superior courts of record. This
inherent jurisdiction enables the High Courts to
exercise oversight over all subordinate courts and
tribunals,
irrespective
of
whether
specific
statutory provisions provide for such supervision.
(Para 18)

Petition allowed. (E-14)

List of Cases cited:

1. St. of W. B.l Vs Associated Contractor (2015) 1
SCC 32

2. M/s Ravi Ranjan Developers Pvt. Ltd. Vs Aditya
Kumar Chatterjee reported in SLP(C)17397 of
2021 (SC)

3. Manjusha Premi & ors. Vs Prakash Gupta &
ors.(2016) 6 All LJ 695

4. Dalim Kumar Chakraborty Vs Smt. Gouri Biswar
& anr. 2018 SCC Online Cal 282

5. Magma Fincorp Ltd. Vs Maa Vaishno Sales Pvt.
Ltd. & ors.2015 SCC Online Cal 6267

6. M/s Gammon Engineers & Contractors Pvt.
Ltd. Vs The St. of West Bengal AIR 2023 Cal.
338

7. SBP & Co. Vs Patel Engineer Ltd. (2005) 8 SCC
618

8. St. of Jharkhand Vs Hindustan Constructions
(2018) 2 SCC 602

9. St. of West Bengal Vs Associated Contractor
(2015) 1 SCC 32

10. Lafarge India Pvt. Ltd. Vs Kishore Kumar
Sahoo AIR 2017 Cal 116.

11. BGS SGS Soma Vs NHPC Ltd. (2020) 4 SCC
234

12. Hindustan Construction Co. Ltd. Vs NHPC Ltd.
& anr. (2020) 4 SCC 310

13. Homevista Decor & Furnishing Pvt. Ltd. & anr.
Vs Connect Residuary Private Limited A.P. No.
358 of 2020 decided on 08.06.2023

14. Estelia Rubber -Vs- Dass ESt. (P) Ltd. (2001)
8 SCC 97

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. This is a writ petition under Article
227 of the Constitution of India wherein the
petitioner is aggrieved by the order dated
March 15, 2022 passed by the Commercial
Court, Gautam Buddh Nagar by which the
Commercial Court held that it lacks the
territorial jurisdiction to adjudicate the
application filed under Section 34 of the
Arbitration and Conciliation Act, 1996
(hereinafter referred to as "the Act") by the
petitioner. The Commercial Court, Gautam
Buddh Nagar accordingly, returned the said
application with liberty granted to the
petitioner to file the said application before
the appropriate territorial court.

2. The facts of the instant case are
delineated below:

(a) The parties herein entered into
an agreement which contained an arbitration
clause.

(b) As disputes and differences
arose between the parties, the respondent
filed an application under Section 9 of the
Act before the Commercial Court, Gautam
Buddh Nagar on March 20, 2007.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) Subsequently, the petitioners
filed an application under Section 11 of the
Act before the High Court of Delhi. The
High Court of Delhi passed an order on
September 11, 2007 appointing the sole
arbitrator to decide the dispute between the
parties. Subsequently, the arbitrator passed
an award on July 3, 2017.

(d) Challenging the said award,
the petitioners filed an application under
Section 34 of the Act before the Commercial
Court, Gautam Buddh Nagar which was
dismissed for want of territorial jurisdiction
vide order dated March 15, 2022. Hence, the
instant petition has been filed challenging
the said order.

CONTENTIONS
OF
THE
PETITIONERS

3.

Counsel
appearing
for
the
petitioners
has
made
the
following
submissions:

(i) Since the application under
Section 9 of the Act was filed before the
Commercial Court, Gautam Buddh Nagar,
the exclusive jurisdiction for hearing the
Section 34 application would also lie with
the Commercial Court, Gautam Buddh
Nagar. Reliance in this regard is placed upon
the judgments rendered in State of West
Bengal v. Associated Contractor reported
in (2015) 1 SCC 32; M/s Ravi Ranjan
Developers Pvt. Ltd. v. Aditya Kumar
Chatterjee reported in SLP(C)17397 of
2021 (SC); Manjusha Premi and Others v.
Prakash Gupta and Others reported in
(2016) 6 All LJ 695; Dalim Kumar
Chakraborty v. Smt. Gouri Biswar and
Another reported in 2018 SCC Online Cal
282; Magma Fincorp Limited v. Maa
Vaishno Sales Pvt. Ltd. and Others
reported in 2015 SCC Online Cal 6267 and
M/s Gammon Engineers & Contractors
Pvt. Ltd. v. The State of West Bengal
reported in AIR 2023 Cal. 338.

(ii) Furthermore, the filing of the
application under Section 11 of the Act
before the Delhi High Court, as the venue
was fixed in Delhi would not make it the seat
of arbitration. Reliance is placed upon the
judgments rendered in SBP & Co. v. Patel
Engineer Ltd. reported in (2005) 8 SCC
618; State of Jharkhand v. Hindustan
Constructions reported in (2018) 2 SCC
602; State of West Bengal v. Associated
Contractor reported in (2015) 1 SCC 32;
Manjusha Premi and Others v. Prakash
Gupta and Others reported in (2016) 6 All
LJ 695 and Lafarge India Private Limited
v. Kishore Kumar Sahoo reported in AIR
2017 Cal 116.

(iii) Since the application under
Section 9 of the Act was made before the
Commercial Court, Gautam Budh Nagar, all
the subsequent applications under Part-I of
the Act will have to be made before the same
Court.

(iv) Bar placed by Section 42 of the Act
does not apply to an application under
Section 11 of the Act and, therefore, despite
the fact that the Section 11 application was
filed before the Delhi High Court, the same
would not confer jurisdiction upon the Delhi
High Court to hear other applications under
the Part-I of the Act.

(v) Relying upon the judgment of
the Supreme Court in M/s Ravi Ranjan
Developers Pvt. Ltd. case (supra), it is
submitted that the doctrine of estoppel
would apply upon the respondent as they
have themselves filed the application under
Section 9 of the Act before the Commercial
Court, Gautam Buddh Nagar. They cannot
now contend that the jurisdiction for filing
the application under Section 34 of the Act
would lie before the High Court of Delhi.

(vi)
Unless
the
agreement
specifically provides for it, venue cannot be
5 All. M/S Devi Dayal Trust & Ors. Vs. M/S Rajhans Towers Pvt. Ltd.
1245
treated as the seat of arbitration unless there
is contrary indicia present. In the instant
case, filing of the application under Section
9 of the Act before the Commercial Court,
Gautam Buddh Nagar, acts as contrary
indicia preventing the venue to be elevated
to the status of seat.

CONTENTIONS
OF
THE
RESPONDENT

4. Counsel appearing for the
respondent
has
made
the
following
submissions:

(i)
In
the
agreement
dated
19.05.2006 between the parties, clause
being clause No.53 clearly stipulates that if
any disputes or differences arises between
the parties in any manner whatsoever, they
shall be referred to arbitration in accordance
with the provisions of the Act and the
"venue" of arbitration proceedings shall be
at Delhi.

(ii) As clause 53 of the agreement,
expressly designates a "venue" and does not
designate of any alternative place as the
"seat" the inexorable conclusion is that the
venue is to be treated as the juridical seat of
the arbitral proceedings.

(iii)
Since
proceedings
were
finally held at New Delhi without any
objection and award was signed in New
Delhi as both the parties have chosen New
Delhi to be the, the same confers exclusive
jurisdiction upon the Courts at New Delhi.

(iv) An application was filed by
the Respondent before the High Court of
Delhi for appointment of an arbitrator under
Section 11 of the Act. The petitioner herein
did not file any objection to the same.

(v) The order dated March 15,
2022 passed by the Commercial Court,
Gautam Buddh Nagar is perfectly legal,
fully justified and as such no interference by
this Court is warranted against the same.

(vi) The Supreme Court in the case
of BGS SGS Soma v. NHPC Ltd. reported
in (2020) 4 SCC 234 and in Hindustan
Construction Company Ltd. v. NHPC
Ltd. and Another reported in 2020 4 SCC
310 has held that whenever there is a
designation of a place of arbitration in an
arbitration clause as being the venue of the
arbitration
proceeding
the
expression
"arbitration proceedings" would make it
clear that the venue is actually the "seat" of
the arbitral proceedings.

(vii) The High Court of Calcutta
after due deliberations has held in A.P. No.
358 of 2020 decided on 08.06.2023
(Homevista Decor and Furnishing Pvt.
Ltd. and another v. Connect Residuary
Private Limited) that the courts of the place
selected as having exclusive jurisdiction
over disputes should be considered as "Seat"
thereby having exclusive jurisdiction to
entertain applications under the Act.

ANALYSIS AND CONCLUSION

5. I have heard the learned counsel
appearing for the parties and perused the
materials on record.

6. Since the crux of the instant dispute
revolves around the bar placed by Section 42
of the Act, I have extracted the same herein
for ease of reference:

"42.
Jurisdiction.-
Notwithstanding
anything
contained
elsewhere in this Part or in any other law for
the time 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
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
and the arbitral proceedings shall be made
in that Court and in no other Court."

7. The Hon'ble Supreme Court in BGS
SGS SOMA JV -v- NHPC Limited
reported in (2020) 4 SCC 234 espoused the
intent and purpose behind Section 42 of the
Act as follows:

"59.Equally
incorrect
is
the
finding inAntrix Corpn. Ltd.[Antrix Corpn.
Ltd.v.Devas Multimedia (P) Ltd., 2018 SCC
OnLine Del 9338] that Section 42 of the
Arbitration Act, 1996 would be rendered
ineffective and useless. Section 42 is meant
to avoid conflicts in jurisdiction of courts by
placing the supervisory jurisdiction over all
arbitral proceedings in connection with the
arbitration in one court exclusively. This is
why
the
section
begins
with
anon
obstanteclause, and then goes on to state
"...where with respect to an arbitration
agreement any application under this part
has been made in a court..." It is obvious
that the application made under this part to
a court must be a court which has
jurisdiction to decide such application. The
subsequent holdings of this court, that where
a seat is designated in an agreement, the
courts of the seat alone have jurisdiction,
would require that all applications under
Part I be made only in the court where the
seat is located, and that court alone then has
jurisdiction over the arbitral proceedings
and all subsequent applications arising out
of the arbitral agreement. So read, Section
42 is not rendered ineffective or useless.
Also, where it is found on the facts of a
particular case that either no "seat" is
designated by agreement, or the so-called
"seat" is only a convenient "venue", then
there may be several courts where a part of
the cause of action arises that may have
jurisdiction. Again, an application under
Section 9 of the Arbitration Act, 1996 may
be preferred before a court in which part of
the cause of action arises in a case where
parties have not agreed on the "seat" of
arbitration, and before such "seat" may
have been determined, on the facts of a
particular case, by the Arbitral Tribunal
under Section 20(2) of the Arbitration Act,
1996. In both these situations, the earliest
application having been made to a court in
which a part of the cause of action arises
would then be the exclusive court under
Section 42, which would have control over
the arbitral proceedings. For all these
reasons, the law stated by the Bombay and
Delhi High Courts in this regard is incorrect
and is overruled."

(Emphasis Added)

8. Section 42 of the Act encapsulates
the principle of jurisdictional exclusivity. It
stipulates that once an application under Part
1 of the Act is made in a court with respect
to an arbitration agreement, all subsequent
applications under Part 1 of the Act will
have to made before that court only. By
vesting exclusive jurisdiction in a single
court, Section 42 of the Act obviates the
possibility of conflicting judgements and
ensures uniformity in the adjudication of
arbitral
matters.
When
two
entities
embroiled in a commercial disagreement,
opt for arbitration as their chosen mode of
resolution, they may often find themselves
at the crossroads of jurisdictional ambiguity.
It is here that Section 42 of the Act assumes
pivotal
importance.
By
centralizing
jurisdiction in a designate court, Section 42
of the Act mitigates the risk of parallel
proceedings, thus expediting the resolution
of disputes and reducing legal costs.

9. The only exceptions to the bar
placed by Section 42 of the Act are
applications made under Section 8 of the Act
or Section 11 of the Act. Reference in this
5 All. M/S Devi Dayal Trust & Ors. Vs. M/S Rajhans Towers Pvt. Ltd.
1247
regard can be made to the judgment of the
Hon'ble Supreme Court in State of West
Bengal -v- Associated Contractors (supra)
wherein it was held as follows:

"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 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 I of the Arbitration Act,
1996.

(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.

(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 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 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 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
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 not being to a court
as defined would be outside Section 42.
Also, an application made to a court without
subject-matter jurisdiction would be outside
Section 42.

The
reference
is
answered
accordingly."

(Emphasis Added)

10. As such, the argument presented by
the Respondents that since the application
under Section 11 of the Act was made before
the High Court of Delhi, all subsequent
applications will have to be made before the
High Court of Delhi, is devoid of any merit
and is rejected. The rationale underlying this
exception lies in the recognition of the
distinctive nature of applications under
Section 8 and Section 11 of the Act, which
necessitate specialized adjudication and
prompt intervention. Furthermore, since the
arbitral clause between the parties, provides
for only a venue and not a seat, it is not open
for the respondent to argue that the venue in
the instant case should be exalted to the
status of seat. This is due to the bar placed
by Section 42 of the Act, since an
application under Section 9 had already
been filed before the District Court at
Gautam Buddh Nagar.

11. Whether initiated before, during, or
after
the
conclusion
of
arbitration,
applications under Part 1 of the Act are
subject to the jurisdictional constraints
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed by Section 42 of the Act. By
availing itself of the jurisdiction of the
District Court at Gautam Buddh Nagar, the
respondent
implicitly
recognized
the
authority of that court to adjudicate matters
arising out of the arbitration agreement
between the parties. This recognition,
coupled with the principles of estoppel,
precludes the respondent from subsequently
disavowing the jurisdiction of the court at
Gautam
Buddh
Nagar
to
entertain
subsequent applications under Part 1 of the
Act.

12. The principle of estoppel operates to
prevent a party from resiling its prior
representations or conduct to the detriment of
another party. Here, the respondent's prior
invocation of the jurisdiction of the court at
Gautam Buddh Nagar under Section 9 of the Act
constitutes a deliberate and unequivocal
submission to the authority of that court. Having
voluntarily invoked the jurisdiction of the said
court, the respondent is estopped from adopting
a position contrary to its prior conduct to the
detriment of the petitioner. Additionally, the
doctrine of forum non conveniens, which
empowers a court to decline jurisdiction in
favour of a more appropriate forum, is not
applicable in the present case. The respondent's
attempt to evade the jurisdiction of the court at
Gautam Buddh Nagar is nothing but an effort to
the circumvent the jurisdictional constraints
imposed by Section 42 of the Act.

13. In M/s Ravi Ranjan Developers
Pvt. Ltd. case (supra), the Supreme Court
propounded that once the parties have
invoked the jurisdiction of a court, they are
estopped from invoking the jurisdiction of
another court. Relevant paragraph is
extracted herein:

"48.In this case, the parties, as
observed above did not agree to refer their
disputes to the jurisdiction of the Courts in
Kolkata. It was not the intention of the
parties that Kolkata should be the seat of
arbitration. Kolkata was only intended to be
the
venue
for
arbitration
sittings.
Accordingly,
the
Respondent
himself
approached
the
District
Court
at
Muzaffarpur, and not a Court in Kolkata for
interim protection under Section 9 of the
A&C Act. The Respondent having himself
invoked the jurisdiction of the District Court
at Muzaffarpur, is estopped from contending
that the parties had agreed to confer
exclusive jurisdiction to the Calcutta High
Court to the exclusion of other Courts.
Neither of the parties to the agreement
construed
the
arbitration
clause
to
designate Kolkata as the seat of arbitration.
We are constrained to hold that Calcutta
High Court inherently lacks jurisdiction to
entertain the application of the Respondent
under Section 11(6) of the Arbitration Act.
The High Court should have decided the
objection raised by the Appellant, to the
jurisdiction of the Calcutta High Court, to
entertain the application under Section
11(6) of A&C Act, before appointing an
Arbitrator."
(Emphasis Added)

14. In Gammon Engineers and
Contracts Pvt. Ltd. -v- State of West
Bengal (supra) while dealing with a similar
issue, I had concluded that since an
application has already been made under
Section 9 of the Act at Jalpaiguri, all
subsequent applications will lie at Jalpaiguri
in light of the bar placed by Section 42 of the
Act. Relevant paragraph is extracted herein:

"21.The ratio of the judgment
inSwadesh Kumar Agarwal(supra) must be
kept in mind, wherein the court has
categorically held in paragraph 32 that
once an appointment is made under Section
5 All. M/S Devi Dayal Trust & Ors. Vs. M/S Rajhans Towers Pvt. Ltd.
1249
11, the arbitration agreement cannot be
invoked for the second time under Section
11. The procedure prescribed in the Act for
termination
of
an
arbitral
tribunal's
mandate is as per Sections 14 and 15 of the
Act. The argument raised by the petitioner
that a petition can be filed under Section 14
read with Section 15 and Section 11(6) is an
argument in sophistry and is superfluous.
This is quite evident from the ratio of the
judgment
inSwadesh
Kumar
Agarwal(supra),
which
has
been
specifically delineated in paragraph 32 of
the said judgment and pointed out by me in
the preceding paragraphs. In the present
case, a Section 9 application was already
made to the District Judge at Jalpaiguri,
which is, for all purposes, the 'court' under
Section 2(1)(e) of the Act. Therefore, the bar
under Section 42 would lie and all
applications to be made to a 'court' must be
made to the District Judge at Jalpaiguri. An
application under Section 14(1)(a) for
termination of an arbitrator's mandate,
being required to be made before a 'court'
as under Section 2(1)(e) and 42 of the Act,
has to presented before the District Judge at
Jalpaiguri. In light of the above, A.P. 785 of
2022 is disposed of for not being
maintainable before the High Court at this
stage.I make it clear that the findings with
regard to merits of the case in the preceding
paragraphs are tentative in nature and the
appropriate court shall decide the Section
14 application in accordance with law."

15. In Manjusha Premi and Others -
v- Prakash Gupta and Others (supra), this
Court held that the bar placed by Section 42
of the Act will apply to applications made
under Section 9 of the Act. Relevant
paragraphs are extracted herein:

"40.He had further submitted that
since first application under section 9 of the
Act was filed before the District Judge,
Varanasi on 28.10.2006, the Varanasi Court
in the light of section 42 of the Act would
alone have the jurisdiction. The aforesaid
case has also discussed in detailed in
previous paragraphs.

41.Referring to the judgment of
Hon'ble Apex Court in the case ofSwastik
Gases Private Limited(supra) he submitted
that unless the jurisdiction of the Court is
excluded in expression as such "exclusive"
"alone" "only" the jurisdiction of a Court
would not be excluded. For this purpose, a
reference would not be excluded. On the
strength of the aforesaid, he submitted that
since there was no specific clause providing
jurisdiction to a Court, thus the jurisdiction
of a Civil Court is to be decided with
reference to section 2(1)(e) of the Act and
thus the same would be at Varanasi in the
present case.

42.Sri K.K. Arora had also placed
reliance on a decision of Hon'ble Apex
Court in the case ofState of West
Bengal(supra) to submit that if the
proceedings initiated is one of the nature of
section 8(before judicial authority) and
section 11 of the Act (the Chief Justice or his
delegates) applications filed before the
Court inferior to the Principal Civil Court
or to High Court having no original
jurisdiction, the bar contained in section 42
would not apply. However, application filed
under section 9 of the Act very much within
the purview of section 42 as they are filed
before the Court.

43.Undisputedly, the application
under section 11 of the Act is filed before the
Hon'ble Chief Justice or his delegates,
which is not a "Court" in the eye of law and
as such clearly, the provision of section 42
of the Act would not apply but the same
would certainly be applicable if the
application is filed under section 9 of the
Act, which was done at the first instance
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
before the District Judge, Varanasi on
28.10.2006 in the present case.

44.In view of the aforesaid
discussion and the fact that admittedly the
property in dispute is situated at Varanasi
and the first application under section 9
of the Act was filed on 28.10.2006 in the
Court of District Judge, Varanasi, which
is undisputedly the Principal Civil Court
of original jurisdiction in a district
having jurisdiction to decide questions
forming subject-matter of the arbitration
as provided under section 2(1)(e) of the
Act, as section 42 of the Act had
specifically provided that where with
respect to any arbitration agreement
when any application under this part
(Part 1 of the Act which relates to
domestic award) has been made in a
Court, that Court shall have jurisdiction
over the arbitral proceedings and all
subsequent applications arising out of
the
agreement
and
the
arbitral
proceedings shall be made in that Court
and in no other Court, leaves no doubt
that the Principal Civil Court of original
jurisdiction at Varanasii.e., District
Judge,
Varanasi
will
have
the
jurisdiction to entertain application
under section 34 of the Act against the
arbitral award."

16. Accordingly, this Court holds that
in light of Section 42 of the Act, the
application under Section 34 of the Act, or
for that matter any other application under
Part 1 of the Act, will have to be made at
Gautam Buddh Nagar.

17. The question that remains now is
whether this Court in exercise of its powers
under Article 227 of the Constitution of
India can set aside the impugned order
passed by the District Court at Gautam
Buddh Nagar returning the application filed
under Section 34 of the Act for want of
territorial jurisdiction.

18. Article 227 of the Constitution of
India bestows upon the High Courts an
extraordinary power of superintendence
over all courts and tribunal within their
respective jurisdiction. This power is a
potent tool for ensuring the proper
administration of justice and upholding the
rule of law. It serves as a bulwark against
judicial error, administrative excess, and
procedural
irregularity.
Power
of
superintendence under Article 227 is
inherent in the High Courts by virtue of their
status of superior courts of record. This
inherent jurisdiction enables the High
Courts to exercise oversight over all
subordinate
courts
and
tribunals,
irrespective of whether specific statutory
provisions provide for such supervision.

19. In Estelia Rubber -v- Dass Estate
(P) Ltd. reported in (2001) 8 SCC 97, the
Hon'ble Supreme Court reiterated the scope
of Article 227 as follows:

"6.The scope and ambit of
exercise of power and jurisdiction by a High
Court under Article 227 of the Constitution
of India is examined and explained in a
number of decisions of this Court. The
exercise of power under this article involves
a duty on the High Court to keep inferior
courts and tribunals within the bounds of
their authority and to see that they do the
duty expected or required of them in a legal
manner. The High Court is not vested with
any unlimited prerogative to correct all
kinds of hardship or wrong decisions made
within the limits of the jurisdiction of the
subordinate courts or tribunals. Exercise of
this power and interfering with the orders of
the courts or tribunals is restricted to cases
of serious dereliction of duty and flagrant
5 All. Chitra Misra & Ors. Vs. M/S Decathlon Sport India Pvt. Ltd. & Anr.
1251
violation of fundamental principles of law or
justice, where if the High Court does not
interfere,
a
grave
injustice
remains
uncorrected. It is also well settled that the
High Court while acting under this article
cannot exercise its power as an appellate
court or substitute its own judgment in place
of that of the subordinate court to correct an
error, which is not apparent on the face of
the record. The High Court can set aside or
ignore the findings of facts of an inferior
court or tribunal, if there is no evidence at
all to justify or the finding is so perverse,
that no reasonable person can possibly
come to such a conclusion, which the court
or tribunal has come to."

20. In light of the aforesaid, it is palpably
clear that the Commercial Court at Gautam
Buddh Nagar has failed to exercise its
jurisdiction. Accordingly, this Court, in
exercise of its power under Article 227 of the
Constitution of India sets aside the impugned
order dated March 15, 2022 passed by the
Commercial Court, Gautam Buddh Nagar.
This Court also directs the Commercial Court,
Gautam Buddh Nagar to adjudicate the
application filed by the petitioners under
Section 34 of the Act expeditiously, preferably
within a period of six months from date.

21. With the above directions, this
petition is allowed. There shall be no order
as to the costs.
----------
(2024) 5 ILRA 1251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 2475 of 2024

Chitra Misra & Ors. ...Petitioners
Versus
M/S Decathlon Sport India Pvt. Ltd. & Anr.
 ...Opp. Parties

Counsel for the Petitioners:
Pritish Kumar, Amal Rastogi

Counsel for the Opp. Parties:
Sanjeev Singh

Civil Law - Arbitration & Conciliation Act,
1996 - Sections 7, 11, 16(2) & 37 -
Commercial Court Act, 2005 - Section
13(1A) - Insolvency and Bankruptcy Code,
2016 - Sections 14 & 238 - Transfer of
Property Act, 1882 - Section 109 -
Claimants have purchased various portions
of property, taken on lease by respondent
no. 1 from M/s Rohtas Projects Limited, in
violation of terms and conditions of
registered lease deed - There is no
arbitration
agreement
between
the
petitioners and respondent no. 1, the
petitioners
initiated
arbitration
proceedings claiming payment of arrears of
rent, interest on arrears of rent, damages
for use and occupation of property at the
rate of rent, interest on damages, eviction
of respondent no. 1 from demise premises
and cost of proceedings - The proceedings
under IBC have been initiated against
lessor M/s Rohtas Projects Limited - A
Resolution
Professional
has
been
appointed
by
NCLT,
New
Delhi
-
Respondents have deposited entire arrears
of rent and damages etc. in NCLT and
already vacated the premises in dispute -
Hence, in view of facts and circumstances,
orders passed by Sole Arbitrator and
Commercial Court, Lucknow didn't require
any interference, dismissed. (Para 43, 44)
Petition dismissed. (E-13)

List of Cases cited:

1. Mayavati Trading (P) Ltd. versus Pradyuat
Deb Burman, (2019) 8 SCC 714

2. Duro Felguera, S.A. versus Gangavaram Port
Ltd., (2017) 9 SCC 729

3. Vidya Drolia & ors. Vs Navrang Studios:
(1981) 1 SCC 523