Shri Greesh Agarwal vs National Buildings Construction Corporation Limited and Another

Anoop V. Mohta, J.—The Petitioner, a contractor, has invoked Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act) and filed the present Petition in this Court on 20.01.2010. Based upon an agreement having an arbitration clause between the Petitioner and Respondent No. 1, as the dispute arose in reference to a construction contract of Haryana Road Works dated 31.08.1989, Respondent No. 1, by letter dated 10.05.1994, intimated to the Petitioner that appointment of sole Arbitrator by order dated 22.04.1992 to adjudicate the dispute. By this letter, there was specific direction to the parties to appear before the Arbitrator and to file claim and counter claim within 21 days so prescribed. The matter could not be proceeded further. The Petitioner, therefore, by letter dated 20 September 2000 requested the Arbitrator to give other date for hearing.

Respondent No. 2, the Arbitrator, accordingly heard the parties and as agreed extended the time upto 21 December 2001. The time was accordingly granted to both the parties to take appropriate steps. It is clear from this correspondence and as there is o dispute, the hearing took place at Delhi.

The Petitioner again, as there was no progress, requested Respondent No. 1 to take action as the Arbitrator could not proceed with the arbitration since last 15 years. This letter shows that the Petitioner even pointed out the Respondent No. 1''s chairman that the Arbitrator has not even published the award and he expected a fair judgment on the issue. This shows that the parties have proceeded before the Arbitrator at Delhi.

The Petitioner, as Respondent No. 1 failed to appoint Arbitrator, approached the Delhi High Court by filing a Petition being Arbitration Petition No. 447/1992 for appointment of an Arbitrator, but the said application was withdrawn on 4.09.1992 as the Respondent No. 1 by letter dated 22.04.1992 appointed the Arbitrator/Respondent No. 2.

The Petitioner by letters dated 13.08.2007 and 14.01.2009 again requested to intervene in the matter as the arbitration proceedings have been pending since 1992.

The Petitioner''s Advocate, by letter dated 17 December 2009, therefore, again informed the Arbitrator/Respondent No. 2 that the matter is not progressing as per law in spite of repeated communication and, therefore, expressed their desire to invoke Sections 14 and 15 of the Arbitration Act to terminate the mandate of Arbitral Tribunal with immediate effect and express their willingness to appoint sole Arbitrator within 15 days from the receipt of the letter. There was no reply from the Respondent. The present Petition, therefore, filed by the Petitioner under Sections 14 and 15, in view of the above background, by stating that the Petitioner''s office is in 4 arbp-1109-10.sxw Mumbai and, therefore, this Court has jurisdiction to try, entertain and decide this Petition, is unacceptable, as it is not maintainable. This Court has no jurisdiction to try and entertain this Petition. Admittedly, the work contract is of the year 1989, the construction of Haryana Road Works itself is in the State of Haryana. The Petitioner himself had invoked and filed arbitration petition for the appointment of an Arbitrator in Delhi High Court which was later on withdrawn. Though the petition was filed under the Old Act, yet considering the specific Section 42 of the Arbitration Act, 1996 which is reproduced as under and in view of the basic cause of action arose as the Arbitrator was appointed and the parties participated and appeared before the Arbitrator at Delhi. Merely because the Petitioner''s office is at Mumbai, in the present facts and circumstances, that itself cannot be the reason to entertain the present petition under Sections 14 and 15 of the Arbitration Act.

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 and the arbitral proceedings shall be made in that Court and in no other Court.

Strikingly, there is nothing pointed out that the provisions of 5 arbp-1109-10.sxw Arbitration Act, 1996 is applicable and not the old Act.

The contract of arbitration was of the year 1989. The parties have invoked arbitration clause and accordingly the Arbitrator was appointed in the year 1992, based upon the Arbitration Act, 1940.

The parties, however, as agreed and extended the time in the year 2001 that was after the Arbitration Act, 1996. The parties probably might have accepted to continue with the provisions of the New Act in view of Section 21, which permit the parties either to accept the provisions of the old Act and/or to continue with the arbitration proceedings under the new Act.

Any how, as there is no specific objection raises so far as the applicability of 1996 Act, but considering the undisputed facts on record, and as Section 42 of the Arbitration Act which nowhere restrict that any arbitration proceedings, if initiated prior to the commencement of Arbitration Act, 1996 cannot be extended for the purposes of Section 42 to debar the second application or subsequent application in that Court other than the Court of which the parties have already invoked the jurisdiction. In my view, therefore, though the Petitioner has filed first application in the Delhi High Court under the old Act, yet that itself is sufficient for the subsequent application for the Court to pass an appropriate order of rejecting such application as the earlier Court alone has jurisdiction over the arbitration proceedings. The Petitioner is, therefore, in view of Section 42, even otherwise, considering the agreement between the parties, bound to file subsequent application/petition in the Court of Delhi and no other Court.

Therefore, without observing anything on merit, the present Petition as filed in this Court is rejected as it is without jurisdiction. However, liberty is granted to the Petitioner to apply and file the Petition, if so advised.