Dipak Misra, J.:-
(1) The spinal and centroidal issue that has spiralled to this court for the purpose of adjudication in exercise of its extraordinary jurisdiction under arts. 226/227 of the constitution of india is whether the additional district judge has the inherent jurisdiction to hear the application under section 34 of the arbitration and conciliation act, 1996 (for short 'the 1996 act') in view of the language employed under sections 2 (l) (e) and 42 of the said enactment or it is the district judge alone who has the jurisdiction to deal with the lis.
(2) The facts which are absolutely imperative to be exposited for the purpose of ad - judication of the controversy are that four agreements were signed between the petitioners, namely, madhya pradesh state electricity board and madhya pradesh power generation company limited and the respondents on the basis of a letter of intent issued in favour of the respondent no. 1 on 11 - 5 - 1999. In pursuance of the execution of the agreement, the respondent no. 1 had submitted the bank guarantees for obtaining advance payment and accordingly, a letter of credit was issued. As some disputes arose, the petitioners encashed the bank guarantees of the respondent no. 1. Because of the said action, the respondent no. 1 preferred an application under section 9 of the 1996 act in the court of district judge, jabalpur who directed the petitioner no. 1 not to disburse the amount of bank guarantee and keep it secured. The respondent no. 1 initiated certain proceedings in the court of geneva, italy against the invocation of the bank guarantees and the said court, by order dated 12 - 11 - 2001, held that no fault can be found with the action of the petitioner no. 1 for invoking the bank guarantees. As pleaded, dispute emerged in filing of an application under section 11 of the 1996 act by the respondent no. 1 and eventually on 25 - 2 - 2002, the apex court appointed three retired judges of the supreme court as the arbitral tribunal. After submission of respective statements of claim, written statements and counterclaim, the arbitral tribunal, by order dated 23 - 9 - 2004, allowed the claim of the respondent no. 1 in part and dismissed the counter - claim preferred by the petitioner no. 1. Being dissatisfied with the said award the petitioner no. 1 preferred an application under section 34 of the 1996 act before the learned district judge, jabalpur who transferred the matter for adjudication to the ixth additional district judge. Before the said court, the "petitioners filed an application that the district judge alone is the principal city court of the district as defined under section 2 (1) (e) of the 1996 act and hence, he alone is entitled and empowered to hear the matter and the additional district judge did not have the jurisdiction to dwell upon the lis. The learned additional district judge, by order dated 4 - 7 - 2008, rejected the application preferred by the petitioner as per annexure - p - 5.
(3) Be it noted, certain applications have been made in the petition with regard to the provisions contained in the m. P. Civil courts act, 1958 (for short 'the 1958 act') and how the said act has been substituted by m. p. act no. 7 of 1980 with retrospective effect. Reference has been made to the provisions contained in the arbitration act, 1940 and how the provisions therein are quite different from the provisions contained in the 1996 act. It is urged that the provisions contained in the 1958 act are in conflict with the 1996 act and hence, are unconstitutional.
(4) Mr. R. N. Singh, learned advocate general, assailing the order impugned in the backdrop of jurisdiction has raised the following contentions : -
(a) the definition of the term "court" as per section 2 (1) (e) includes the principal civil court of original jurisdiction of the district and does not include any civil court of a grade inferior to such principal civil court, or any court of small causes and hence, the additional district judge not being the principal civil court of original jurisdiction cannot be regarded as the "court" under the said provision.
(b) section 42, which occurs in chapter x "miscellaneous", deals with jurisdiction which commences with non - obstante clause prescribing notwithstanding anything contained elsewhere in this part or 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 and, therefore, if the said concept of jurisdiction is understood in the backdrop of the dictionary clause, it is the district judge and the district judge alone who has the exclusive jurisdiction to deal with the subsequent applications and arbitral proceedings.
(c) as there was confusion with regard to the jurisdiction, the arbitration and conciliation (amendment) bill, 2003 was introduced in the rajya sabha on 22 - 12 - 2003 inserting an amended provision of section 2 - a after section 2 of the principal act which stipulates that the principal civil court of original jurisdiction in a district or the court of principal judge of the city civil court of original jurisdiction in a city, as the case may be, may, from time to time, transfer any matter relating to any proceedings under this act which is pending before it, to any court of co - ordinate jurisdiction in the district or the city, as the case may be, for decision and, therefore, the picture becomes clear that the principal civil judge alone can have the jurisdiction to deal with the controversy and the same cannot be transferred to any additional district judge.
(d) the principal civil court of original jurisdiction, i. E. , the district judge having dealt with the application under section 9 of the 1996 act is bound in law to deal with such subsequent applications including an application under section 34 of the 1996 act and has no authority to transfer the same to the additional district judge. To bolster the aforesaid submissions, mr. Singh has commended us to decisions rendered in the case of raipur development authority v. Sarin construction company, raipur, air 2006 chhattisgarh 12, m/s. Iti ltd. , allahabad v. District judge, allahabad, air 1998 all 313, state of tamil nadu and another v. R. Sundaram and another, 2006 arb wlj 782 (mad) , m/s. Nila chakra construction v. State of orissa and others, 2005 arb wlj 327 : (air 2005 on 30) , and b. V. Sharma v. Skuast and others, 2007 (1) jkj 161 : (2007 clc 1307).
(5) Mr. N. P. Shah, learned counsel appearing for the respondents, resisting the aforesaid submissions, has raised the following proponements : -
(i) the construction placed by the learned counsel for the petitioners is unacceptable if the language of both the provisions are properly construed inasmuch as the provision does not include certain categories of courts and the court of additional district judge does not fall in that excluded category. (ii - iii) the decisions rendered by the high courts of allahabad and chhattisgarh are not correctly decided as a very restricted meaning has been placed on the provisions and further the scenario in madhya pradesh is different from that discussed in the aforesaid said cases. (iv) the decision rendered by the orissa high court is distinguishable as there is exclusionary clause in the local act. (v) the purpose of non - obstante clause has to be properly understood and should not be given more meaning that what is necessitous to be given more so when the non - obstante provision is absolutely plain, clear and unambiguous. (vi) the submission that the district judge having dealt with the application under section 9 of the act at the initial stage is under an obligation to deal with such subsequent applications does not stand to reason and the same does not flow from section 42 of the act and, in fact, if such construction is placed on the said provision, the same would lead to absurdity. To bolster the aforesaid submissions, he has placed reliance on the decisions rendered in globsyn technologies ltd. V. Eskaycee infosys, 2004 (2) alt 174 and m/s. Badrilal jodhraj and sons, indore v. Girdharilal and another, air 1988 mp 24.
(6) To appreciate the rivalized submissions raised at the bar, it is apposite to refer to section 2 (1) (e) which defines the term "court". It reads as under :
"2 (1) (e) "court" 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 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. "
(7) Section 42, which deals with jurisdiction, is as under : -
"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."
There can be no shadow of doubt that when the term "court" has been defined and the jurisdiction has been expressly provided for, the same has to be read regard being had to the text and context and also keeping in view the intendment of the legislature. The dictionary clause, as is unmistakably clear, uses the words "means", "includes" and "does not include". It is urged by mr. Singh that if the language of this provision is properly understood, the intendment of the legislature would be quite clear that it wanted to confer a restricted meaning and that is why certain views were expressed and an amendment was sought to be incorporated to clarify the position. Learned advocate general would submit that though section 2 - a has not come into force, the same can be taken aid of. As advised, at present, we need not dwell upon the same and try to make a survey of the decisions to understand the contextual interpretation that has been given, regard being had 1958 act in view.
(8) Before we come to the decisions which have been rendered by the court of principal civil court of the high court of m. P. In different context, it is condign to appreciate the decisions that have been commended to us by both the sides. In the case of m/s. I. T. I. Ltd. , (air 1998 all 313) (supra) , the learned single judge of allahabad high court referred to the definition of the term "court" in section 2 (1) (e) and the concept of jurisdiction as has been postulated under section 42 of the 1996 act and expressed the view that a conjoint reading of sections 2 (e) and 42 leaves no manner of doubt that the parliament intended to make only one court - the principal civil court of original jurisdiction or, as the case may be, the high court in exercise of its ordinary original jurisdiction, whichever court is approached earlier, as the venue for all matters connected with an arbitration agreement, and award, and all arbitral proceedings and hence, ss. 2 (e) and 42 paraphrased in simple language would mean that any application "with respect to an arbitration agreement" will have to be filed in the principal civil court of original jurisdiction in a district, or, as the case may be, in the original civil jurisdiction of the high court having jurisdiction to decide the questions forming the subject - matter of a suit and that court alone to which the application is filed shall have the jurisdiction over the entire arbitral proceedings to the exclusion of any other court having jurisdiction to decide the questions forming the subject - matter of arbitration. The phrase "with respect to an arbitration agreement" used in s. 42 is of wide connotation and it embraces within its sweep an application for setting aside an arbitral award on grounds specified in s. 34.
(9) In m/s. Nila chakra construction (air 2005 ori 30) (supra) , the learned single judge of the high court of orissa scanning the anatomy of the relevant provisions of the 1996 act, expressed the view that the court of district judge is the principal civil court of original jurisdiction in a district and the definition engrafted under section 2 (1) (e) does not leave any room for any doubt that the principal civil court of original jurisdiction is obviously the court of the district judge and nbt that of the civil judge (senior division). It is worth noting that the learned judge referred to section 2 (2) of the orissa civil courts act which provides that the court of district judge shall be the principal court of - original civil jurisdiction in the district. He took note of the explanation to the said provision which provides that the district judge shall not include the additional district judge.
(10) In raipur development authority (air 2006 chh 12) (supra) , the high court of chhattisgarh referred to sections 7 (2) and 8 of the 1958 act and thereafter referred to the provisions contained in the 1996 act and distinguished the decisions rendered in vinod kumar jajodia v. Brij bhushan agarwal, 1993 mplj 603 and agreed with the view expressed by the allahabad high court in m/s. Iti ltd. , allahabad (supra) and eventually opined that the district judge who is the principal city civil court of the district has no jurisdiction to transfer the application filed under section 34 of the 1996 act before him to the additional district judge.
(11) In globsyn technologies ltd. (supra) , v. Sudarshan reddy, j. (as his lordship then was) , dealt with the controversy which pertained to the issue that only the principal district judge at delhi alone had the territorial jurisdiction to entertain an application under section 9 of the act and the vith additional district judge, vishakhapatnam had no jurisdiction to deal with the application under section 9 of the 1996 act. We are not concerned with the facet of territorial jurisdiction but with regard to the delineation made as regards the inherent jurisdiction. His lordship referred to the decision rendered in m/s. Iti ltd. , allahabad (air 1998 all 313) (supra) and eventually expressed the opinion as under: - "12. The short question that falls for consideration is as to whether the court of learned vi - additional district judge is a civil court of a grade inferior to the principal civil court. The court of the principal district judge and the court of vi - additional district judge are of equal grade. The court of the learned vi - additional district judge is not a court of a grade inferior to the court of the principal district judge. The expression "court of a grade inferior" is required to be understood in its proper context. 13. The dictionary meaning of inferior is "lower in any respect, subordinate, a person who is lower in rank or station". According to black's law dictionary, inferior means "one who, in relation to another, has less power and is below him; one who is bound to obey another. The term may denote any court subordinate to the chief appellate tribunal in the particular judicial system (e. G. Trial court) but it is also commonly used as the designation of a court of special, limited or statutory jurisdiction. " 14. I find it difficult to accept the submission of the learned additional advocate general that the court of the learned vi - additional district judge at visakhapatnam is a court of a grade inferior to the principal district judge's court. I am unable to persuade myself to accept the reasoning given and the ratio of the decision in m/s. I. T. I. Ltd. , allahabad (supra). The contention is accordingly rejected. "
(12) In b. V. Sharma (2007 clc 1307) (supra) the learned single judge of the jammu and kashmir high court was dealing with the case under section 9 of the jammu and kashmir arbitration and conciliation act, 1997. In the said case, the learned district judge was unable to hear the case and has made a reference to the high court for entrusting the matter to the court of competent jurisdiction. In the said act, section 2 (1) (e) defines the term "court". The said definition is pari materia with the definition under section 2 (1) (e) of the 1996 act. Section 42 which deals with "jurisdiction" has also the same character and contour of the 1996 act. The learned judge referred to the decision rendered in m/s. Iti ltd. , allahabad (supra) and the provisions contained in the civil courts act prevalent therein. Eventually, the learned judge distinguished the decision rendered in m/s. Iti ltd. Allahabad (supra) and the decision rendered in surat singh v. State of himachal pradesh and another, 2003 (3) arb lr 606 (hp) and expressed the view as under : - "18. This being the position in reference to the definition of term "court" section 42 of 1997 act deserves to be liberally construed being a procedural and enabling provision. I do not think that the legislature would have intended that even if the pre - siding officer of principal civil court of original jurisdiction was disabled under general law to hear an arbitration application filed before him he alone should have jurisdiction to hear that petition. Such absurdity can be avoided by giving a liberal construction to the expression "that court" used in section 42 to mean "that court" would include the court to which the proceedings have been validly transferred under section 24, c. P. C. Or under section 16 (2) of civil court's act. I would quote the statement of maxwell on the interpretation of statutes, twelfth edition, page 228 for support : xxxxxxx xxxxxxxx 20. For the above reasons, respectfully disagreeing with the contrary view expressed in i. T. I. Ltd. , allahabad v. District judge, allahabad and ors. Reported in air 1998 all 313; and surat singh v. State of himachal pradesh and ann, 2003 (3) arb lr 606 (he) (db). I hold that the term "that court" in section 42 on liberal construction would include the court of an additional district judge to which an arbitration application made before a principal civil court of original jurisdiction has been validly transferred and such court of an additional district judge would be deemed to be a civil court of original jurisdiction within the purview of the definition of the term "court" defined in section 2 (2) of 1997 act. "
(13) In r. Sundaram and another (supra) the division bench of the madras high court was dealing with the fact situation whether the principal sub - court at madurai has the jurisdiction to deal with the application under section 34 of the 1996 act. The bench, referring to section 2 (1) (e) , expressed the view as under : - "26. Under the new arbitration act, a "court" has been specifically defined. It provides that the "court" means the principal civil court of original jurisdiction in a district. It does not refer to every court of civil jurisdiction in a district but "principal civil court of original jurisdiction" in a district. Similarly, the definition also excludes any court which is inferior to such principal civil court of original jurisdiction in a district. The definition, therefore, read as a whole, clearly excludes the court of subordinate judge, which is inferior to the court of district judge. These aspects were not at all brought to the notice of the court. The decision rendered is thus distinguishable. "
(14) On a survey of the aforesaid deci sion, it is clear as crystal that the view expressed by the division bench of the high court of madras is distinguishable inasmuch as the madras high court was deal ing with the jurisdiction of principal sub court which is not the case at hand and the decision of the orissa high court is distinguishable as there was a definition under the orissa civil courts act that the district judge does not include the additional district judge.
(15) To appreciate the controversy in proper perspective, it is apposite to refer to section 7 (2) of the 1958 act. It reads as under : -
"section 7 (2) - an additional judge to the court of a district judge, an additional district judge and an additional judge to the court of an additional district judge shall discharge any of the functions of a district judge, including the functions of principal civil court of original jurisdiction, which the district judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same powers as the district judge."
(16) The said provision came to be interpreted in babulal v. Dattatraya, 1971 mplj 765 wherein it has been held as under : -
"7. sub - section (2) of section 7 provides that an additional district judge shall discharge any of the functions of a district judge, including the functions of the principal civil court of original jurisdiction, which the district judge may, by general or special order, assign to him and in the discharge of such functions he shall exercise the same powers as the district judge. From this provision it is clear that an additional district judge is a delegate of the powers entrusted to him by the district judge and in the case of such delegation he exercises all the powers of the district judge, including those of the principal civil court of original jurisdiction. It thus follows that any statutory jurisdiction conferred on the district judge can also be exercised by the additional district judge if the same is entrusted to him by the district judge."
(17) In m/s. Badrilal jodhraj and sons, indore (air 1988 mp 74) (supra) , the division bench of this court expressed the view that the additional judge to the court of district judge enjoys the same powers and discharges the same functions as the district judge. He can even discharge the func - tions of a district judge including the functions of principal civil court of original jurisdiction, which the district judge may, by general or special order, assign to him and in the discharge of such (unctions he shall exercise the same powers as the district judge. The division bench further opined that the additional district judge is not the subordinate district judge.
(18) In rasheed khan and another v. Peer mohammad, 1992 mplj 607, the learned single judge of this court, while dealing with the definition of "district judge" under section 2 (bb) of the indian succession act, has expressed the view that section 7 of the 1958 - act makes the position clear that the additional judge to the court of district judge is the principal civil court of original jurisdiction and he is entitled to discharge "any of the functions of the district judge".
(19) In malik singh chawla v. Surendra kumar lakhers and others, air 1998 mp 312, it has been held that an additional judge is empowered to discharge any of the functions of the district judge including the functions of principal civil court of original jurisdiction which the district judge may, by general or special order, assign to him and in the discharge of the same, he shall exercise the same powers as the district judge.
(20) Recently, in n. K. Sexena and anr. V. State of m. P. And anr. , 2008 (2) mpht 365, the division bench has expressed the view that a reading of provisions of the 1958 act as amended by act no. 17 of 1982 would show that although the court of district judge and the court of additional district judge have been classified as two separate classes yet belong to one and the same cadre and they exercise the same judicial powers. The division bench has referred to sub - section (2) of section 7 and expressed the view that the district judge includes the additional district judge to that court. Be it noted, in the said case, the issue was whether a person can be appointed as the chairman, m. P. State co - operative tribunal inasmuch as section 77 (3) (a) of the m. P. Co - operative societies act, 1960 provides that the said post shall be held by a person who has been judge of the high court or has held the office of the district judge for not less than five years. In the said case, the bench expressed the view as under : -
"17. From 1982, therefore, the office of the district judge and the office of the additional district judge have been equated in all respects with regard to powers, functions and duties. The respondent no. 2 has worked as district judge and additional district judge after 1982 for about seven years and, therefore, held the office of the district judge for more than five years and is qualified under section 77 (3) (a) of the cooperative societies act to be appointed as chairman of the tribunal. We, therefore, do not find any merit in the writ petition and accordingly dismiss the same."
(21) In view of the aforesaid pronouncements of law, as far as madhya pradesh is concerned, the additional district judge is equated with the principal civil court of original jurisdiction. section 2 (1) (e) does not include any civil court of grade inferior to such principal civil court or any court of small causes. As is evincible from the enunciation of law which we have referred to above, the additional district judge is not inferior to the district judge. Section 42 refers to the term "court". The court has to take the meaning from the definition. In this context, it is worth noting that the dictionary clause refers to two categories of courts, namely, the high court which has the original civil jurisdiction and also the principal civil court. If any party to the agreement invokes the original jurisdiction of the high court, he cannot thereafter go to the principal civil court. He also cannot approach any other court having the jurisdiction after approaching once to the said court. This view has been rendered in strojexport company ltd. V. Indian oil corporation, air 1997 raj 120. We are in respectful agreement with the same.
(22) In view of the aforesaid analysis on the bedrock of 1958 act, the irresistible conclusion is that the additional district judge meets the requirements as engrafted under section 2 (1) (e) of the 1996 act. We also respectfully agree with the view expressed in the decisions rendered in globsyn technologies ltd. (supra) and b. V. Sharma (supra). Ergo, the objection raised under section 34 of 1996 act can be dwelled upon and dealt with by the learned additional district judge. That being the position in law, the impugned order passed by the learned additional district judge is neither vulnerable nor susceptible. We give the stamp of approval to the same.
(23) As a sequitur, the writ petition, being was substratum, stands dismissed without any order as to costs. Petition dismissed.
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