M/S BHANDARI UDYOG LTD Vs INDUSTRIAL FACILITATION COUNCIL
Bench: M.Y. EQBAL,KURIAN JOSEPH
Case number: C.A. No.-002077-002077 / 2015
Diary number: 8041 / 2014
Advocates: LEX REGIS LAW OFFICES Vs
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‘REPORTABLE’
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2077 OF 2015 (Arising out of SLP (C) NO. 8675 OF 2014)
M/S. BHANDARI UDYOG LIMITED …..Appellant(s) versus
INDUSTRIAL FACILITATION COUNCIL AND ANOTHER …..Respondent(s)
JUDGMENT
M. Y. EQBAL, J.
Leave granted.
2. The short question that falls for consideration in this
appeal is as to whether the Bombay High Court has correctly
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decided the jurisdiction of a Court to entertain application
under Section 34 of the Arbitration and Conciliation Act,
1996?
3. The facts of the case lie in a narrow compass.
4. The Appellant Company is running a small scale
industry at Raichur in the State of Karnataka and is engaged
in the business of cotton ginning, pressing while extraction
and in marketing the finished products. Whereas
Respondent No.2 is running a cotton spinning mill at Latur in
the State of Maharashtra. Respondent no.2 purchased 750
bales of cotton from the appellant-company and made part
payment to the appellant. The balance amount was not paid
which led to a dispute between the parties.
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5. It further appears that the appellant filed an application
under Sections 3 and 4 of the Interest on Delayed Payments
to Small Scale and Ancillary Industrial Undertakings Act,1993
(for short ‘IDP Act’) before respondent no.1, the Industrial
Facilitation Council (for short ‘IFC’) to arbitrate the dispute
between the appellant and respondent no.2. The appellant
thereafter filed a petition before the Karnataka High Court
under Section 11 of the Arbitration and Conciliation Act,
1996 (for short ‘Act of 1996’) for appointment of Arbitrator.
The said petition was allowed by the Chief Justice Designate
and directed respondent No.1 (IFC) to decide the dispute
between the parties. The respondent no.1 passed an Award
on 16.8.2010 directing respondent no.2 to pay a sum of
Rs.20,25,213.54 with interest.
6. The respondent no.2 challenged the Award by filing an
application under Section 34 of 1996 Act before the District
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Court at Latur, Maharashtra for setting aside the Award. The
appellant opposed the said application by challenging the
jurisdiction of the District Court in Latur. The appellant
contended that the District Court at Raichur has jurisdiction
to hear the application under Section 34 of the Act. The
District Judge proceeded to decide the jurisdiction by
referring various provisions including Sections 15 to 20 of
the Code of Civil Procedure and held that since respondent
no.2 resides at Latur, delivery of cotton bales was taken at
Latur and the place of business of respondent no.2 was at
Latur, it is the District Judge, Latur, who has jurisdiction to
entertain the application under Section 34 of the Act.
7. As against the aforesaid order passed by the District
Judge, Latur, appellant preferred a revision before the
Bombay High Court. The Bombay High Court dismissed the
revision holding that since the Chief Justice of the High Court
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dealing with an application under Section 11 of the Act is not
a court, and that no application was filed in any court prior to
the filing of application under Section 34 of the Act and
further the bales were supplied at Latur, it is the Latur Court
which has jurisdiction to entertain the application under
Section 34 of the Act.
8. We have heard Mr. Jayant Bhushan, learned senior
counsel appearing for the appellant and Mr. Shrish K.
Deshpande, learned counsel appearing for respondent no.2.
It is not in dispute that pursuant to the order passed by
respondent no.2, the cotton bales were dispatched by the
appellant from Raichur supported by all bills/invoices
specifically mentioning that “subject to Raichur jurisdiction”.
The dispute arose and the matter was referred to respondent
no.1, IFC Bangalore. Respondent No.2 participated in the
arbitration proceedings in Bangalore without raising
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objection with regard to the jurisdiction of the Karnataka
High Court referring the matter to arbitration or the
jurisdiction of IFC to decide the dispute. Admittedly, the
arbitration proceeding was concluded within the jurisdiction
of Raichur Court. The only forum available to respondent
no.2 was to make an application under Section 34 of the Act
before the Civil Court of original jurisdiction at Raichur, since
the Karnataka High Court has no original jurisdiction.
9. Recently, when a similar question for consideration
arose before three Judges Bench of this Court in the case of
State of West Bengal & Ors. vs. Associated
contractors, (2015) 1 SCC 32, this Court held:-
“22. One more question that may arise under Section 42 is whether Section 42 would apply in cases where an application made in a court is found to be without jurisdiction. Under Section 31(4) of the old Act, it has been held in F.C.I. v. A.M. Ahmed & Co.,(2001) 10 SCC 532 at p. 532, para 6 and Neycer India Ltd. v. GMB Ceramics Ltd. (2002) 9 SCC 489 at pp. 490-91, para 3 that Section 31(4) of the 1940 Act would not be
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applicable if it were found that an application was to be made before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land Developers (P) Ltd.,(2007) 11 SCC 453 at p. 460, para 9 and Rajasthan SEB v. Universal Petro Chemicals Ltd. (2009) 2 SCC 107 at p. 116, paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 at pp. 47-48, para 32, it was held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 contains a non obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction.”
10. Indisputably, the Arbitration proceeding has been
conducted within the jurisdiction of Raichur court, which
has jurisdiction as per Section 20 of the Code of Civil
Procedure and is subordinate to the High Court of Karnataka
which entertained Section 11 Application. Hence, the Award
cannot be challenged before a Court subordinate to the High
Court of Bombay. Exercise of jurisdiction by such court shall
be against the provision of Section 42 of the Act.
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11. We, after giving our anxious consideration to the
matter, are of the view that the District Court at Latur and
High Court of Bombay have committed error of law in
entertaining the application under Section 34 of the Act and
dismissing the revision petition.
12. We, therefore, allow this appeal and set aside the order
passed by the High Court. There shall be no order as to
costs.
…………………………….J. (M.Y. Eqbal)
…………………………….J. (Kurian Joseph)
New Delhi, February 20, 2015.
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ITEM NO.1A COURT NO.11 SECTION IX [FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
C.A. No. 2077 of 2015 @ Petition(s) for Special Leave to Appeal (C) No(s). 8675/2014
(Arising out of impugned final judgment and order dated 21/11/2013 in CRA No. 179/2013 passed by the High Court Of Bombay Bench at Aurangabad)
M/S BHANDARI UDYOG LTD Petitioner(s)
VERSUS
INDUSTRIAL FACILITATION COUNCIL & ANR Respondent(s)
Date : 20/02/2015 This appeal was called on for judgment today.
For Petitioner(s) Mr. Anand Shrivastava, Adv. for M/s. Lex Regis Law Offices
For Respondent(s) Mr. Shirish K. Deshpande,Adv.
Hon'ble Mr. Justice M.Y. Eqbal pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Kurian Joseph.
Leave granted. Appeal is allowed in terms of signed reportable
judgment. No costs.
(INDU POKHRIYAL) (PARDEEP KUMAR) COURT MASTER AR-cum-PS
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]