Full Bench issues directives in 'Arbitration matter' - Early Times Newspaper Jammu Kashmir

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Full Bench issues directives in 'Arbitration matter'

4/4/2015 11:37:07 PM

Jammu, Apr 4: Full Bench of the state High Court Comprising Chief Justice N Paul Vasanthakumar, Justice Mohammad Yaqoob Mir and Justice BS Walia considering all petitions regarding jurisdiction of challenging the award of 'Arbitrator' that 'court' as defined under the Act would not take into its sweep the application filed u/s 11 or order passed u/s 17 of the Act by the arbitral Tribunal, therefore, subsequent proceedings are not to be launched before the said authorities as being excluded by section 42 of the Act in view of not being the court.
In order to simplify; if an application under Section 9 of the Act is filed before the District Court and an order is passed subsequent thereto, all applications arising out of arbitral proceedings in terms of section 42 of the Act shall have to be made in that court and no other court. Likewise in case, order is passed by the High Court, then all applications would lie in the High Court. Division Bench further observed that concluded that High Court of Jammu and Kashmir being court of civil original jurisdiction and the District Courts in the District is the principal civil courts of original jurisdiction, so both are the courts within the meaning of section 2(1)(e) of the Act. When against the arbitral award, on grievances, both the parties file applications under Section 34 of the Act for setting aside the award, on the same date, before the District Court as well as High Court, then the case is to be heard by the High Court. In case against the arbitral award, parties have filed the applications under section 34 of the Act for setting aside the award in both High Court and District
Court on different dates, in that eventuality, the court before which first application was filed shall have the jurisdiction to decide the matter, as has been held in para 22 of the Atlanta judgment. Applications under various provisions of the Act which include Section 8, Section 11 and interim measure under Section 17 dealt with by the authorities are not the courts within the meaning of section 2(1)(e) of the Act, therefore, section 42 of the Act is not attracted. A request for appointment of arbitrator in terms of Section 11 of the Act has to be made to the Chief Justice or any person or institution as shall be designated for the purpose. In this connection, Hon'ble two Judges respectively for Jammu and Srinagar Wing have been designated. So the application under section 11 of the Act are to be considered by the designated Judges and any such application has not to be treated disposed of by the court within the meaning of section 2(1)(e) read with Section 42 of the Act.
Against the interim measure made by the arbitral tribunal, appeal is permissible under section 37(2) of the Act which can be filed both before the High Court as well as District Court which are the courts within the meaning of section 2(1)(e) of the Act. Suitor is a dominus litis. When two forums are available to him, he has a choice of instituting the suit in either of the forums. As already concluded that both High Court being court of civil original jurisdiction and District Court being court of civil original jurisdiction in the district, therefore, application for setting aside the award under section 34 of the Act can lie in either of the Courts. So if only one party is aggrieved, he has a choice to file the application under section 34 of the Act either in High Court or in the District Court. But in case application under section 9 is filed in either of the Court then subsequent applications including application under section 34 of the Act for setting aside the award has necessarily to be filed in the same court and in none other court. There the principle of dominus litis becomes irrelevant. Again where both the parties are aggrieved, both have a choice to file application for setting aside the award under section 34 of the Act in either of the courts, but again the position of them being dominus litis becomes irrelevant because as already concluded in case on the same date, application by one party in High Court and by another party in the District Court then choice for jurisdiction has to be the High Court, provided earlier an application under section 9 of the Act is not filed in either of the Courts, otherwise the application under section 34 of the Act has to be filed in the court where earlier application under section 9 of the Act for interim relief was filed. (JNF)

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