# M/s Rathore Builders Registered Partner Firm v. State of U.P. & Anr

- **Citation:** (2016) 3 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-10
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rathore-builders-registered-partner-firm-v-state-of-u-p-anr-43471
- **Pages:** 7

## Headnote

Arbitration & Conciliation Act, 1996 - Sections 8, 11(6), 34, 37 - Section 20 of Arbitration Act,
1940 - Maintainability of suit by plaintiff under Section 8 - Appointment of arbitrator - Jurisdiction of
Civil Judge - Meaning of "Court" under Section 2(1)(e) - Award passed upon void reference -
Appealability

Petitioner instituted a suit under Section 8 of the 1996 Act seeking direction to appoint arbitrator -
Civil Judge directed Chief Engineer to appoint arbitrator - Arbitrator appointed by State Government
and award rendered - Award made rule of the Court by Civil Judge under Section 34 - Appeal under
3 All. M/s Rathore Builders Registered Partner Firm Vs. State of U.P. & Anr.
47
Section 37 filed before ADJ - ADJ held entire proceedings void ab initio and set aside reference order
and award - Petition under Article 227 filed.

(i) Section 8 can be invoked only by a defendant and not by a plaintiff; suit for reference to arbitration
under Section 8 is not maintainable - (ii) Section 8 of 1996 Act is not pari materia with Section 20 of
the 1940 Act; Civil Judge had no authority to direct appointment of arbitrator - (iii) Arbitrator
appointed pursuant to void order is coram non judice, hence award is nullity - (iv) Civil Judge lacked
jurisdiction under Section 34; "Court" under Section 2(1)(e) means Principal Civil Court of original
jurisdiction - (v) Appeal under Section 37 before ADJ not maintainable when original order itself
without jurisdiction - (vi) Entire proceedings amounted to gross misuse of process
Held: Para 21,22 No interference warranted under Article 227. Petition dismissed.

Case Law discussed

## Text

46 INDIAN LAW REPORTS ALLAHABAD SERIES
been committed by the offender not only against the individual victim but also against the
society. Hence it is the duty of every court to award appropriate sentence having regard to
the nature of the offence, aggravating and mitigating circumstance and the manner in which
it was executed or committed by the offender.

24. In view of the facts and circumstance, it is clear that offence committed by the
appellant has shocked the conscience of the society hence it attracted extreme punishment,
which is necessary to promote respect for law to provide just and appropriate punishment for
crime and the case is covered under the category of rarest of rare case.

25. In view of the aforesaid discussion, considering the gravity of offence, aggravating
and mitigating circumstance, the trial court has rightly awarded capital punishment hence
the reference made by the sessions court is hereby allowed. The sentence awarding death
penalty is hereby confirmed.

26. Accordingly, the appeal filed against the impugned judgment of conviction and
sentence is hereby dismissed.

27. However, the execution of sentence shall remain suspended for the period of
limitation to prefer special appeal before the Supreme Court.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Matters Under Article 227 No.- 727 of 2016

M/s Rathore Builders Registered Partner Firm ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Vijay Prakash Singh Kushw, Veer Bhagat Singh Kushwah

Counsel for the Respondents:
C.S.C.

Arbitration & Conciliation Act, 1996 - Sections 8, 11(6), 34, 37 - Section 20 of Arbitration Act,
1940 - Maintainability of suit by plaintiff under Section 8 - Appointment of arbitrator - Jurisdiction of
Civil Judge - Meaning of "Court" under Section 2(1)(e) - Award passed upon void reference -
Appealability

Petitioner instituted a suit under Section 8 of the 1996 Act seeking direction to appoint arbitrator -
Civil Judge directed Chief Engineer to appoint arbitrator - Arbitrator appointed by State Government
and award rendered - Award made rule of the Court by Civil Judge under Section 34 - Appeal under
3 All. M/s Rathore Builders Registered Partner Firm Vs. State of U.P. & Anr.
47
Section 37 filed before ADJ - ADJ held entire proceedings void ab initio and set aside reference order
and award - Petition under Article 227 filed.

(i) Section 8 can be invoked only by a defendant and not by a plaintiff; suit for reference to arbitration
under Section 8 is not maintainable - (ii) Section 8 of 1996 Act is not pari materia with Section 20 of
the 1940 Act; Civil Judge had no authority to direct appointment of arbitrator - (iii) Arbitrator
appointed pursuant to void order is coram non judice, hence award is nullity - (iv) Civil Judge lacked
jurisdiction under Section 34; "Court" under Section 2(1)(e) means Principal Civil Court of original
jurisdiction - (v) Appeal under Section 37 before ADJ not maintainable when original order itself
without jurisdiction - (vi) Entire proceedings amounted to gross misuse of process
Held: Para 21,22 No interference warranted under Article 227. Petition dismissed.

Case Law discussed
1. S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 - (Para 7)
2. P. Anand Gajapathi Raju v. P.V.G. Raju, AIR 2000 SC 1886 - (Para 8)
3. Sundaram Finance Ltd. v. NEPC India Ltd., AIR 1999 SC 565 - (Para 9)
4. M. Vijaya Narayanan v. M. Prabhakaran, AIR 2006 Ker 373 - (Para 10)
5. Pandey & Co. Builders Pvt. Ltd. v. State of Bihar, AIR 2007 SC 465 - (Para 15)
6. Deepak Mitra v. District Judge, Allahabad, AIR 2000 All 9 - (Para 16)
7. Tamil Nadu Electricity Board v. Sumathi, AIR 2000 SC 1603 - (Para 17)
8. Konkan Railway Corpn. Ltd. v. Mehul Construction Co. (Para 18)
9. Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334 - (Para 19)
10. Shetty's Construction Co. v. Konkan Railway Construction - (Para 20)

(Delivered by Hon'ble Suneet Kumar, J.)

1. The facts giving rise to this petition briefly is that the second respondent-Executive
Engineer Prantiya Khand Lok Nirman Vibhag, Lalitpur entered into a contract with the
applicant-firm for construction of Type-4 class building. The contract was executed on 1
March 1996. The contract contained an arbitration clause to settle dispute, if it arises,
between the parties pertaining to the execution of the contract. It appears that the respondent
failed to provide land to construct the building, further, did not fulfill the other conditions of
the agreement, therefore, the material purchased by the applicant and advance given to the
workers went waste; the applicant, therefore, incurred loss due to breach of contract.
Aggrieved, applicant instituted a suit being Suit No. 218 of 1997 (M/s Rathore Builders vs.
State of U.P. & another) under Section 8 of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as 'the Act 1996) seeking a direction to the civil court to direct the
Chief Engineer to appoint an Arbitrator as per the terms of the contract. The opposite party
appeared and contested but no objection was taken regarding maintainability of the suit at
the behest of the applicant under Section 8 of the Act 1996 before the civil court. Be that as
it may, the trial court vide order dated 30 July 2002 directed the Chief Engineer
Bundelkhand Region, Jhansi, to appoint an arbitrator as per the terms of the contract, further,
the dispute be redressed by the arbitrator within a period of six months.

2. Pursuant thereof, the State Government, Law Department (Appointment) vide
reference dated 22 June 2004 referred the dispute to the sole arbitrator Sri Vishnu Chand
Gupta, Special Secretary (Judicial) and Law Adviser U.P., Govt. Lucknow. The sole
arbitrator adjudicated the matter, rendered the award on 9 February 2005. The award was in
48 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the applicant, thereafter, it appears that the award was filed in the pending suit
before the Civil Judge (Sr. Div.), Lalitpur by the applicant for making it rule of the court.
The opposite party objected to the award, however, the award was made rule of the court,
purportedly under Section 34 of the Act 1996 by order dated 2 March 2009. Aggrieved, by
the order passed under Section 34 of the Act, 1996, the State-respondent preferred an appeal
before the Additional District Judge, Lalitpur being Civil Appeal No. 7 of 2009 (State of
U.P. & another vs. M/s Rathore Builders). The appeal was contested by the applicant,
learned Additional District Judge set aside the reference order, and the award rendered by
the arbitrator, thus, declaring the reference order and award nullity being void ab initio as
the reference order was without jurisdiction. The applicant is assailing the order dated 15
October 2015 passed by the appellate court/Additional District Judge, Lalitpur, under Article
227 of the Constitution.
3. The question for determination is (i) whether the applicant could have instituted a
suit before the Civil Judge under Section 8 of the Act, 1996, seeking a direction to the
competent authority to appoint an arbitrator; (ii) whether the Civil Judge was competent to
have entertained the petition under Section 34 of the Act, 1996; (iii) whether an appeal under
Section 37 of Act, 1996 would lie before the Additional District Judge.
4. The appellate court upon noting the facts framed the following points for
determination:

(A) Whether impugned order is without jurisdiction ?

(B) Whether sec. 20 of 1940 Act and sec. 8 of 1996 Act are in pari
materia ?

(C) Whether this court has jurisdiction to entertain this appeal ?

(D) Whether validity of this initial petition filed u/s. 8 of 1996 Act and
order passed thereon and also award can be looked into this appeal ?

(E) What order/decree should be made in the facts and circumstances of
this case ?

5. Upon considering the provisions of the Act, 1996, the Appellate Court held that the
petition/suit under Section 8 of the Act, 1996 was not maintainable at the behest of the
applicant before the Civil Judge, therefore, reference made by the Civil Judge was without
jurisdiction, consequently, the Arbitrator was a coram non judice, and for this reason, the
award was also a nullity and the consequent impugned order making the award rule of the
court having been passed by a court without jurisdiction is a nullity, consequently, the appeal
3 All. M/s Rathore Builders Registered Partner Firm Vs. State of U.P. & Anr.
49
was allowed and the proceedings of Arbitration Case No. 218 of 1997 (M/s Rathor Builders
vs. State of U.P. & another) was set aside.

6. Submission of the learned counsel for the applicant is that the petition was
maintainable under Section 8 of the Act, 1996, further, the court had not appointed any
arbitrator but had directed the competent authority to appoint an arbitrator as per the terms
of the contract. Pursuant thereof, the State Government appointed a sole Arbitrator who
rendered the award which was made rule of the court under Section 20 of the Arbitration Act
19401. It is sought to be urged that a plea was taken before the Additional District Judge that
the appeal was not maintainable under Section 37 of the Act, 1996; the appeal would lie
before the High Court.

7. The entire facts narrated herein above would reflect a sorry state of affairs. The
petition under Section 8 would not be maintainable at the behest of the applicant-plaintiff.
Constitution Bench (7 Judges), in S.B.P. & Co. vs. Patel Engineering Ltd. and another
(2005) 8 SCC 618, held that when the defendant to an action before a judicial authority
raises the plea that there is an arbitration agreement and the subject matter of the claim is
covered by the agreement, the judicial authority would have to refer the parties to approach
the arbitrator. Thus, the provisions of Section 8 of the Act, 1996 can be invoked by a
defendant and not by the plaintiff.

8. The conditions which are necessarily to be satisfied under sub-sections (1) and (2) of
Section 8 before the Court can exercise of its power are : (1) there is an arbitration
agreement; (2) a party to the agreement brings an action in the Court against the other party;
(3) subject matter of the action is the same as the subject matter of the arbitration agreement;
(4) the other party moves the Court for referring the parties to arbitration before it submits
his first statement on the substance of the dispute. [Ref.- P. Anand Gajapathi Raju v.
P.V.G. Raju AIR 2000 SC 1886].

9. Section 8 of the new Act is not in pari materia with Section 20 of the old Act. It is
only if in an action which is pending before the Court that a party applies that the matter is
the subject of an arbitration agreement does the Court get jurisdiction to refer the parties to
arbitration. Section 8 does not contemplate, unlike Section 20 of the old Act, a party
applying to a Court for appointing an arbitrator when no matter is pending before the Court.
[Ref.-Sundaram Finance Ltd Versus NEPC India Ltd. AIR 1999 SC 565].

10. Appointment of arbitrator or arbitrators is governed only by the provisions of
Section 11 of 1996 Act. Section 8 does not enable the court to appoint an arbitrator, as was
the case under Section 20 of old Act. When an application under Section 8 is filed in court
and the conditions provided under the section are satisfied, Court is bound to refer the
parties to arbitration. The court is not called upon to require the parties to name the arbitrator
or arbitrators and refer the dispute to that arbitrator. It only provides for an order referring
50 INDIAN LAW REPORTS ALLAHABAD SERIES
the parties to arbitration. [Ref.- M. Vijaya Narayanan v M. Prabhakaran (AIR 2006 Ker
373)].

11. Chapter VII of the Act provides recourse against an arbitral award, sub-clause 1 of
Section 34 contemplates that the aggrieved party may take recourse to the "court" against
arbitral award by making an application for setting aside of the award in accordance with
sub-section (2) and (3).

12. Section 36 contained in Chapter VIII provides for enforcement of award where the
time provided for making an application to set aside the arbitral award under Section 34 has
expired or such application having been made, has been refused, the award shall be enforced
under Code of Civil Procedure (CPC) in the same manner as if it were a decree of the Court.
Section 37 provides for appeal, inter alia, from an order to set aside or refuse to set aside an
arbitral award under Section 34. The court competent to hear the appeals would be the court
authorized by law to hear the appeals from original decrees of the court passing the order.

13. The forum of the appellate court necessarily must be determined in reference to the
definition of 'court' in section 2(1)(e) of the Act 1996.

14. Section 2(1)(e) would define the 'court' to mean principal civil court of original
jurisdiction in a district and includes 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. If the
High Court does not exercise original civil jurisdiction, it would not be a "court" within the
meaning of said provisions.(Vide Pandey & Co. Builders Pvt. Ltd Vs. State of Bihar AIR
2007 SC 465).

15. Section 9 also confers powers upon the 'court' to grant interim measure, section 14
again refers the 'court'. By the expression court used in various provisions of the Act is
meant that District Court i.e. principal civil court of original jurisdiction in a district, which
would have jurisdiction to decide, if a suit had been brought in regard to subject matter of
reference. High Court of Allahabad, does not exercise original civil jurisdiction, therefore, is
not court as defined under Section 2(e), hence, application under Section 34 to set aside an
award is not entertainable in the High Court of Allahabad. The District Judge, and not his
subordinate, is the Principal Civil Court. (Vide Deepak Mitra Vs. District Judge, Allahabad
AIR 2000 (ALLD) 9).

16. If during the pendency of the proceedings in the court parties have entered into an
arbitration agreement then they have to proceed in accordance with the provisions of the
new Act and when award is made it is a decree and it cannot be filed in the High Court and it
has to be filed in the court as defined in clause (e) of Section 2 of the Act, 1996 for its
enforcement as a decree under Section 36 of the Act, 1996. If there is challenge to the award
recourse has to be under Section 34 of the new Act. [Ref.- Tamil Nadu Electricity Board
v Sumathi (AIR 2000 SC 1603)].
3 All. M/s Rathore Builders Registered Partner Firm Vs. State of U.P. & Anr.
51

17. The existing provisions in old Act relating to arbitration through intervention of
Court, when there is no suit pending or by order of the court when there is a suit pending,
have since been removed.

18. As per scheme of Act, 1996 the power to appoint Arbitrator in the event of the
competent authority under the contract refusing to do so, is with the Chief Justice of the
High Court under Section 11(6) of the Act, 1996. [Ref.- Konkan Railway Corpn. Ltd. v
Mehul Construction Co. (AIR 2000 SC 2821)]

19. Section 85 of Act, 1996 repeals the old Act but the provisions of repealed enactment
will continue to apply in relation to arbitral proceedings which commenced on or before 25
January 1996. The arbitral proceedings pending at the commencement of Act, 1996 are
saved from the application of the present Act, but even an arbitral award which may be
given subsequently after the commencement of Act, 1996 in those arbitral proceedings,
would be saved from the provisions of the Act, 1996. In Thyssen Stahlunion GMBH V.
Steel Authority of India Ltd. (1999) 9 SCC 334, the Supreme Court held that the saving by
Section 85(2)(a) is not only of the arbitral proceedings but also of the provisions of the old
Act for the enforcement of award under that Act. The date when the arbitration agreement
was entered into will not be material. An arbitration agreement, although entered into before
the Act, 1996 came into force, would be governed by the present Act. The test of
commencement of arbitral proceedings is given in Section 21 of the Act, 1996; the arbitral
proceedings commence on the date on which request for referring the dispute for arbitration
is received by the parties, unless otherwise agreed by the parties. [Ref. - Shetty's
Construction Co. Pvt. Ltd. v. Konkan Railway Construction (1998) 5 SCC 599)].

20. Having due regard to the facts and circumstances of the case, it is apparent that the
entire proceedings since its inception was gross misuse of process of law and forum. The
judicial authority acted without jurisdiction. The Staterespondent failed to assist the court by
bring to the notice of the Court that the proceeding was not maintainable under Section 8 of
the Act, 1996 at the behest of the applicant. The remedy available was under Section 11(6)
by approaching the Chief Justice of the High Court. The award upon being rendered by the
sole arbitrator was made rule of the court under Section 20 of the old Act which was not
permissible as old Act had no application in view of Section 85 of Act, 1996. Thereafter, the
appeal was filed under Section 37 of Act, 1996 before the Additional District Judge which
itself was not maintainable. I am, therefore, of the opinion that the entire proceedings
initiated at the behest of the applicant is void ab initio. The impugned order does not call for
interference as upon being set aside would revive orders which otherwise is void ab initio.
For the reasons stated herein above, this Court under Article 227 of the Constitution declines
to interfere with the impugned order.

21. The petition is accordingly dismissed.

22. No order as to costs.
52 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.02.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ADITYA NATH MITTAL, J.

Misc. Bench No.- 4082 of 2016

Shiv Prasad & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mukesh Kumar Tewari

Counsel for the Respondents:
Govt. Advocate

Criminal Procedure Code, 1973 - Sections 467, 468, 471, 504, 506 I.P.C. - Writ of certiorari for
quashing F.I.R. - Disputed questions of fact relating to execution and contents of Will - Scope of
investigation under Chapter XII Cr.P.C. - Power of High Court - Investigation cannot be substituted
by judicial determination on affidavits - Duty of investigating agency to conduct fair, impartial and
comprehensive investigation including the version of the accused - Petition dismissed with directions
for fair investigation.

The petitioners want this Court to assume the role of the investigating officer and record a finding on
various aspects of the case, including the legality of the Will and its contents. We have taken note of
the fact that there are seriously disputed questions of facts. Investigation is required to be conducted
under Chapter XII of the Code of Criminal Procedure by the investigating agency. Evidence cannot be
taken by way of affidavits and counter affidavits to record a finding that offence has not been
committed. (Paras 4, 5)

Held: (Para 10-15) Investigation is required to be conducted in context of an incident/transaction
and not by merely accepting the version given in the First Information Report by the first informant. In
case the petitioners / accused have some material that can be translated into legal evidence to
establish that they have not committed the offence, the said material would surely be relevant in
context of the incident / transaction to be investigated. In case all the aspects of the issue/incident are
not investigated, there is a chance of miscarriage of justice and implication of wrong persons as
accused. Going by the law referred to above, the investigating officer is directed to investigate the
incident, also while taking into account the documents referred to by the petitioners in this petition.
 We also direct that investigation be conducted with the aid and assistance of an officer from the
Revenue Department. With the above observations/directions, the petition is dismissed, because
there are seriously disputed questions of facts.

Case Law discussed:
1. State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 Para 17 - It has been stated
that "Investigation, in substance, means collection of evidence relating to the commission of the