# Mahendra Singh & Anr v. M/S Sriram Transport Finance Co. Ltd., Shyam Nagar Kanpur

- **Citation:** (2022) 9 ILRA 1715
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Electronics Pvt Ltd Civil Misc. Arbn. Appl. No. 01 of 2018
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-anr-v-m-s-sriram-transport-finance-co-ltd-shyam-nagar-kanpur-49065
- **Pages:** 5

## Headnote

Act,
1996-Section
34,
2(1)(e)-Arbitral
award-setting
aside-Maintainability
ofHigh Court does not exercise ordinary
original jurisdiction and thus, would not
come within the ambit of Court as
provided under section 34 read with
section
2(1)(e)(i)
of
the
Act
1996application u/s 34 is maintainable only
before Principal Civil Court of original
jurisdiction and not High court-Held, the
application under section 34 of the Act is
not maintainable. The law in regard to the
maintainability of the application under
Section 34 of the Act of 1996 against an
arbitral award has already been settled by
the various judgments of Apex Court and
the matter is no more res integra. (Para 1
to 18)
The application is dismissed. (E-6)

List of Cases cited:

## Text

9 All. Mahendra Singh & Anr. Vs. M/S Sriram Transport Finance Co. Ltd., Shyam Nagar Kanpur 1715

31. Accordingly, revision lacks merit
and is dismissed.

32. No order as to costs.
----------
(2022) 9 ILRA 1715
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Arbitration & Conciliation Application U/S11(4)
No. 104 of 2022

Mahendra Singh & Anr. ...Applicants
Versus
M/S Sriram Transport Finance Co. Ltd.,
Shyam Nagar Kanpur ...Opposite Party

Counsel for the Applicants:
Sri Pradip Kumar Srivastava

Counsel for the Opposite Party:

A. Civil matter-Arbitration and Conciliation
Act,
1996-Section
34,
2(1)(e)-Arbitral
award-setting
aside-Maintainability
ofHigh Court does not exercise ordinary
original jurisdiction and thus, would not
come within the ambit of Court as
provided under section 34 read with
section
2(1)(e)(i)
of
the
Act
1996application u/s 34 is maintainable only
before Principal Civil Court of original
jurisdiction and not High court-Held, the
application under section 34 of the Act is
not maintainable. The law in regard to the
maintainability of the application under
Section 34 of the Act of 1996 against an
arbitral award has already been settled by
the various judgments of Apex Court and
the matter is no more res integra. (Para 1
to 18)
The application is dismissed. (E-6)

List of Cases cited:
1. Exe. Engr. Road Dev.Div. No. III, Panvel Vs
Atlanta Ltd (2014) AIR SC 1093

2. P.T.C. Techno Pvt Ltd Vs Samsung India
Electronics Pvt Ltd Civil Misc. Arbn. Appl. No. 01
of 2018

3. St. of WB Vs Asso. Contractors (2015) AIR SC
260

4. S.B.P. Co. Vs Patel Engg Ltd & anr. (2005) 8
SCC 618

5. Hindustan Cooper Ltd Vs Nicco Corp. Ltd.
(2009) 6 SCC 69

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1.

Heard
Sri
Pradip
Kumar
Srivastava,
learned
counsel
for
the
applicants.

2. This is an application under Section
34 of the Arbitration & Conciliation Act,
1996 (hereinafter referred as the ''Act of
1996') laying challenge to the award dated
26.03.2022 passed by Sri J.P. Narayan,
Additional District & Sessions Judge
(Rtd.), sole Arbitrator.

3. The Stamp Reporter has made a
report that the present application under
Section 34 of the Act of 1996 is not
maintainable in view of the order passed in
Civil Misc. Arbitration Application No. 01
of 2018.

4. Sri P.K. Srivastva, learned counsel
appearing
for
the
applicants,
while
addressing on the maintainability of the
application under Section 34 of the Act of
1996, submitted that the word "Court" used
in Section 34 read with Section 2 (1) (e) (i)
means the Principal Civil Court of original
jurisdiction in a district, and includes the
High Court in exercise of its ordinary
1716 INDIAN LAW REPORTS ALLAHABAD SERIES
original civil jurisdiction. According to
learned counsel, both the Principal Civil
Court and the High Court has jurisdiction
to entertain the application under Section
34 of the Act of 1996.

5. He has placed reliance upon
decision of Apex Court rendered in case of
Executive Engineer, Road Development
Division No. III, Panvel Vs. Atlanta
Limited, 2014 AIR (SC) 1093.

6. I have heard learned counsel for the
applicants and perused the material on
record.

7. The sole question which has to be
adjudicated is in regard to maintainability
of the application under Section 34 of the
Act of 1996 before this Court against the
arbitral award passed by the sole Arbitrator.

8. Before adverting to decide the issue
in hand a cursory glance of provisions of
Section 2 (1) (e) (i) and Section 34 of the
Act of 1996 are necessary for better
appreciation of the case, thus, both the
provisions are extracted here as under;

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

[(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;

..........

34. Application for setting aside
arbitral award.--(1) Recourse to a Court
against an arbitral award may be made only
by an application for setting aside such
award in accordance with sub-section (2)
and sub-section (3).

(2) An arbitral award may be set
aside by the Court only if--

(a)
the
party
making
the
application 1[establishes on the basis of the
record of the arbitral tribunal that]--

(i) a party was under some
incapacity, or

(ii) the arbitration agreement is
not valid under the law to which the parties
have subjected it or, failing any indication
thereon, under the law for the time being in
force; or
(iii) the party making the
application was not given proper notice of
the appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or

(iv) the arbitral award deals with
a dispute not contemplated by or not falling
within the terms of the submission to
arbitration, or it contains decisions on
matters beyond the scope of the submission
to arbitration:

Provided that, if the decisions on
matters submitted to arbitration can be
separated from those not so submitted, only
that part of the arbitral award which
contains decisions on matters not submitted
to arbitration may be set aside; or

(v) the composition of the arbitral
tribunal or the arbitral procedure was not in
accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of this Part from
which the parties cannot derogate, or,
failing such agreement, was not in
accordance with this Part; or

(b) the Court finds that--

(i) the subject-matter of the
dispute is not capable of settlement by
9 All. Mahendra Singh & Anr. Vs. M/S Sriram Transport Finance Co. Ltd., Shyam Nagar Kanpur 1717
arbitration under the law for the time being
in force, or

(ii) the arbitral award is in
conflict with the public policy of India.

[Explanation
1.--For
the
avoidance of any doubt, it is clarified that
an award is in conflict with the public
policy of India, only if,--

(i) the making of the award was
induced or affected by fraud or corruption
or was in violation of section 75 or section
81; or

(ii) it is in contravention with the
fundamental policy of Indian law; or

(iii) it is in conflict with the most
basic notions of morality or justice.

Explanation 2.--For the avoidance
of doubt, the test as to whether there is a
contravention with the fundamental policy
of Indian law shall not entail a review on
the merits of the dispute.]

........"

9. From the conjoint reading of
both the provisions, it is clear that the word
''Court' used in Section 34 has been defined
under the definition clause 2 (1) (e) (i) and
it 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 arbitration if the same
had been the subject matter of suit.

10. The law in regard to the
maintainability of the application under
Section 34 of the Act of 1996 against an
arbitral award has already been settled by
the various judgments of Apex Court and
the matter is no more res integra.

11. In Hindustan Cooper Limited
Vs. Nicco Corporation Limited, 2009 (6)
SCC 69, Apex Court while dealing with the
said issue held that the application under
Section 34 of the Act of 1996 is to be filed
before a Court which is a Principal Civil
Court of original jurisdiction in a district,
and includes the High Court in exercise of
its ordinary civil jurisdiction, having
jurisdiction to decide the question forming
the subject matter of the arbitration. It was
a case where application under Section 34
of the Act of 1996 was preferred before
Jharkhand High Court which was not a
Court
having
ordinary
original
civil
jurisdiction, and the Apex Court found that
the challenge being made directly to the
High Court was not permissible under
Section 34 and it remitted the matter filed
under Section 34 to the Civil Court
competent to hear and decide the same.

12. In case of Atlanta Limited
(Supra) one of the parties had approached
the Principal Civil Court at district Thane,
while the other party approached Bombay
High Court which had the ordinary original
civil jurisdiction, the Apex Court held that
the High Court was competent to entertain
the application under Section 34 being the
superior Court. Relevant paragraph no. 25
is extracted here as under;

"25. All the same, it is imperative
for us to determine, which of the above two
courts which have been approached by the
rival parties, should be the one, to
adjudicate upon the disputes raised. For an
answer to the controversy in hand, recourse
ought to be made first of all to the
provisions of the Arbitration Act. On the
failure to reach a positive conclusion, other
principles of law, may have to be relied
upon.
Having
given
out
thoughtful
consideration to the issue in hand, we are of
the view, that the rightful answer can be
determined from Section 2(1)(e) of the
Arbitration Act, which defines the term
"Court". We shall endeavour to determine
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
this issue, by examining how litigation is
divided between a High Court exercising
"ordinary original civil jurisdiction", and
the "principal civil court of original
jurisdiction" in a district. What needs to be
kept in mind is, that the High Court of
Bombay is vested with "ordinary original
civil jurisdiction" over the same area, over
which jurisdiction is also exercised by the
"principal
Civil
Court
of
original
jurisdiction" for the District of Greater
Mumbai (i.e. the Principal District Judge,
Greater Mumbai). Jurisdiction of the above
two courts on the "ordinary original civil
side" is over the area of Greater Mumbai.
Whilst
examining
the
submissions
advanced by the learned counsel for the
appellant under Section 15 of the Code of
Civil
Procedure,
we
have
already
concluded, that in the above situation,
jurisdiction will vest with the High Court
and not with the District Judge. The
aforesaid choice of jurisdiction has been
expressed in Section 2(1)(e) of the
Arbitration
Act,
without
any
fetters
whatsoever. It is not the case of the
appellants before us, that because of
pecuniary dimensions, and/or any other
consideration(s), jurisdiction in the two
alternatives mentioned above, would lie
with the Principal District Judge, Greater
Mumbai. Under the scheme of the
provisions of the Arbitration Act therefore,
if the choice is between the High Court (in
exercise of its "ordinary original civil
jurisdiction") on the one hand, and the
"principal
civil
court
of
original
jurisdiction" in the District i.e. the District
Judge on the other; Section 2(1)(e) of the
Arbitration Act has made the choice in
favour of the High Court. This in fact
impliedly discloses a legislative intent. To
our mind therefore, it makes no difference,
if the "principal civil court of original
jurisdiction", is in the same district over
which the High Court exercises original
jurisdiction, or some other district. In case
an option is to be exercised between a High
Court (under its "ordinary original civil
jurisdiction") on the one hand, and a
District Court (as "principal Civil Court of
original jurisdiction") on the other, the
choice under the Arbitration Act has to be
exercised in favour of the High Court."

13. In State of West Bengal Vs.
Associated Contractors, AIR 2015 (SC)
260, Apex Court considering the decision
rendered in Atlanta Limited (Supra) as well
as 7 Judge Bench decision in case of S.B.P.
Company Vs. Patel Engineering Limited
and another (2005) 8 SCC 618, held as
under;

"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,
9 All. Ram Avtar Sharma Vs. State of U.P. & Ors.
1719
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."

14. A coordinate Bench of this Court in
case of P.T.C. Techno Private Limited Vs.
Samsung India Electronics Private Limited,
Civil Misc. Arbitration Application No. 01
of 2018, decided on 26.02.2019 held that
Allahabad High Court does not exercise
ordinary original civil jurisdiction, hence the
application under Section 34 was not
maintainable before this Court.

15. The judgment in Atlanta Limited
(Supra) relied on by the the applicants'
counsel is of no help to him as Bombay
High Court exercises ordinary original civil
jurisdiction and, thus, Apex Court held that
in view of Section 2 (1) (e) (i) it was
empowered to entertain the application
under Section 34 being a Court.

16. The said ratio is not applicable in
the present case as Allahabad High Court
does not exercises ordinary original civil
jurisdiction and, thus, would not come
within the ambit of Court as provided under
Section 34 read with Section 2 (1) (e) (i) of
the Act of 1996.

17. The application moved by the
applicants under Section 34 of the Act of
1996 challenging the arbitral award passed
by the sole Arbitrator is only maintainable
before the Principal Civil Court of original
jurisdiction and not this Court.

18. In view of the law laid down by
the Apex Court in case of Atlanta Limited
(Supra) and Associated Contractors
(Supra), the present application under
Section 34 of the Act of 1996 is not
maintainable and same is hereby dismissed
as not maintainable.
----------
(2022) 9 ILRA 1719
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 4796 of 2022

Ram Avtar Sharma ...Petitioner
Versus
State of U.P. & Ors.. ...Respondents

Counsel for the Petitioner: