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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 1093 OF 2006  

 The State of Jharkhand & Ors.            ...Appellant(s)  

Versus  

M/s Hindustan Construction Co. Ltd.  …Respondent(s)  

J U D G M E N T  

Dipak Misra, CJI   

A two-Judge Bench while hearing the present  

appeal found that there is difference of opinion in relation  

to the entertainability of an application by this Court for  

making an award passed by the arbitral tribunal, when it  

retains seisin over arbitral proceeding, as Rule of the  

Court and, therefore, referred the matter to the larger  

Bench for decision on the following question:-

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“Whether this Court can entertain an application  for making the award as Rule of the Court, even  if it retains seisin over arbitral proceedings?”  

2. The narration of the facts in detail is not necessary  

to answer the reference. Suffice it to state that as  

disputes had arisen between the parties, the matter was  

referred to an arbitrator for adjudication of the disputes  

and during the said period, the respondent had filed a  

suit in the High Court of Bombay seeking an interim  

injunction restraining the State from encashing the bank  

guarantee. As the time for making the award and the  

period of extension had expired, the proceeding for  

arbitration was abandoned. The State filed a money suit  

before the learned Sub-Judge I, Saraikella for realization  

of certain sum with interest. The respondent after  

appearing in the suit filed an application under Section  

34 of the Arbitration Act, 1940 (for short, “the Act”) for  

stay of the suit.  The said prayer was contested and the  

learned Sub-Judge allowed the application filed by the  

respondent.  However, regard being had to the quantum  

of the claim, the Sub-Judge expressed the view that it  

was desirable that the parties should settle their disputes

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in an arbitration proceeding. Against the said order, an  

appeal was preferred under Section 39 of the Act before  

the High Court which dismissed the appeal vide order  

dated 06.08.2002.  

3. Being aggrieved, the State of Jharkhand preferred  

the appeal which was disposed of by this Court vide  

order dated 10.01.2013.  It is worthy to mention here  

that the learned counsel appearing for the parties agreed  

for the following order:-  

“(i) The claim made by the respondent on  January 7, 1994 pursuant to the contract dated  April 25, 1989 between the parties which was  earlier referred to the Arbitral Tribunal which  commenced proceedings on February 15, 1995  and which had remained inconclusive is referred  for adjudication to Hon’ble Mr. Justice S.B.  Sinha, retired Judge of this Court.  

(ii) The claim made by the appellant against the  respondent in Money Suit No.4 of 1996 – State of  Jharkhand and others vs. M/s. Hindustan  Construction Company Limited filed by the  appellant on April 10, 1996 in the court of Sub- Judge, Saraikella, Jharkhand is also referred for  adjudication to Hon’ble Mr. Justice S.B. Sinha,  retired Judge of this Court.  

(iii) The terms and conditions shall be settled by  the learned Arbitrator in consultation with the  parties.  

(iv) The parties shall appear before the learned  Arbitrator on February 5, 2013.  We request the

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learned Arbitrator to conclude the aforesaid  arbitration proceedings expeditiously and further  observe that the award shall be filed before this  Court.”  

[Underlining is ours]    

4. After reproducing settlement, the Court recorded  

thus:-  

“We record and accept the statement of the  learned senior counsel for the parties that  learned Arbitrator may be requested to decide the  claim on merits.  We observe accordingly.”    

5. Learned arbitrator concluded the arbitration  

proceedings and passed the award on 16.10.2015 and  

filed the same before this Court. The appellants  

challenged the said award by filing its objections before  

the Civil Court. Per contra, the respondent filed an  

affidavit dated 16.06.2016 requesting this Court to  

pronounce the judgment in terms of the award.  

6. It was contended before the two-Judge Bench that  

when this Court had directed to file the award in this  

Court, an application for making the award Rule of the  

Court is to be filed in this Court, for this Court alone has  

the jurisdiction to pronounce the judgment in terms of  

the award. In this regard, the decisions in Bharat

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Coking Coal Limited v. Annapurna Construction1   

and State of West Bengal and others v. Associated  

Contractors2 were placed reliance upon.  Resisting the  

said submissions, it was urged by the appellant-State  

that if the Court decides the objections to the award, the  

party will lose its right of appeal.  It was also contended  

that by referring the matter to arbitration this Court had  

not really retained control of the proceedings of the  

arbitrator. To bolster the said submissions, heavy  

reliance was placed on State of Rajasthan v. Nav  

Bharat Construction Company (2)3 .   

7. The Court noted the decision in Nav Bharat  

Construction Company (supra) which had followed the  

judgment in Mcdermott International INC. v. Burn  

Standard Co. Ltd. and others4 and further apprised  

itself of the principles enunciated in Bharat Coking  

Coal Limited (supra) which has held that right to appeal  

is a valuable right and unless there exists cogent  

reasons, a litigant should not be deprived of the same.  

                                                           1 (2008) 6 SCC 732  2 (2015) 1 SCC 32  3 (2010) 2 SCC 182  4 (2005) 10 SCC 353

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The Division Bench referred to the principle enunciated  

in Associated Contractors (supra) wherein the three-

Judge Bench had opined that this Court cannot be  

considered to be a Court within the meaning of Section  

2(i)(e) of the Arbitration and Conciliation Act, 1996 (for  

brevity, ‘the 1996 Act’).  The referral judgment noted the  

view taken in State of Madhya Pradesh v. Saith and  

Skelton (P) Ltd.5 and Guru Nanak Foundation v.  

Rattan Singh and Sons6 wherein it has been held that  

when an arbitrator is appointed by this Court and further  

directions are issued, it retains seisin over the arbitration  

proceedings and in such circumstances, the Supreme  

Court is the only court for the purposes of Section 2(c) of  

Act.  

8. The two-Judge Bench perceived the difference of  

opinion with regard to the entertainability of the  

application before this Court and directed the matter to  

be placed before the Chief Justice of India for appropriate  

orders. That is how the matter has been placed before us.  

                                                           5 (1972) 1 SCC 702  6 (1981) 4 SCC 634

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9. We have heard Mr. Ajit Kumar Sinha, learned senior  

counsel appearing for the appellants and Mr. K.V.  

Viswanathan, learned senior counsel for the respondent.  

10. It is submitted by Mr. Sinha, learned senior counsel  

appearing for the appellant-State, that the view  

expressed in Guru Nanak Foundation (supra) does not  

state the law correctly and it will be inappropriate to  

annul the right of appeal of the appellants solely on the  

ground that this Court, on the consent of the parties, had  

accepted that the award shall be filed before this Court  

and, therefore, this Court alone has the jurisdiction to  

decide the objections for making the award Rule of the  

Court. According to Mr. Sinha, the definition of the Court  

under Section 2(c) of the Act has to be appropriately  

appreciated and on proper construction of the meaning of  

the word “Court”, it cannot be said to include the  

Supreme Court. It is additionally propounded by             

Mr. Sinha that under the scheme of the Act, the  

appellants are entitled under law to file the objections  

before the Sub-Judge whose order is assailable in an  

appeal before the High Court under Section 39 of the Act,

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and, if this Court becomes the original Court for dealing  

with the objection/s filed by the parties, then the right of  

appeal would stand nullified without any intervention of  

the legislature. In this context, reliance has been placed  

on State of Karnataka v. Union of India and  

another7, A.R. Antulay v. R.S. Nayak and another8  

and Garikapati Veeraya v. N. Subbiah Choudhry and  

others9. Mr. Sinha, learned senior counsel, has urged  

that the position has been made clear in Associated  

Contractors (supra) wherein the Court has expressed  

the view that the principles enunciated in Saith and  

Skelton (supra) and Guru Nanak Foundation (supra)  

are open to doubt and on dealing with the decisions in  

entirety, it would be clear that it has laid down the  

principle that the term ‘Court’ cannot include the  

Supreme Court.   

11. Mr. Viswanathan, learned senior counsel appearing  

for the respondent, in his turn, contends that Section 2(c)  

of the Act defines Court and the definition when read in  

                                                           7 (1977) 4 SCC 608  8 (1988) 2 SCC 602  9 1957 SCR 488 : AIR 1957 SC 540

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an apposite manner shows that the word “Court” can be  

assigned a different meaning depending on the context.  

For the said purpose, he has commended us to the  

authorities in Commissioner of Gift Tax, Madras v.  

N.S. Getty Chettiar10, Commissioner of Sales Tax,  

State of Gujarat v. Union Medical Agency11, Saith &  

Skelton (supra) and Whirlpool Corporation v.  

Registrar of Trade Marks, Mumbai and others12. It is  

urged by the learned senior counsel for the respondent  

that Section 14(2) of the Act indicates that there may be  

a case where the Court itself can direct the award to be  

filed in the court and once the superior court has  

retained control and passed a specific direction to file an  

award in terms of Section 14(2) before the Court, then all  

other courts cease to have jurisdiction for determination  

of the controversy. Emphasizing on the hierarchical  

structure, he contends that judicial discipline and  

respect has to prevail and, therefore, no proceeding can  

be initiated in any court other than the superior court.  It  

is his submission that when this Court retains control  

                                                           10 (1971) 2 SCC 741  11 (1981) 1 SCC 51  12 (1998) 8 SCC 1  

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over the arbitration proceedings, any proceeding flowing  

from the Act has to be initiated before this Court.  In this  

regard, he has drawn inspiration from few passages in  

Saith & Skelton (supra) and Guru Nanak Foundation  

(supra). According to him, the submission advanced on  

behalf of the appellants that they would lose the right of  

appeal has been squarely rejected in Guru Nanak  

Foundation (supra) and there is no necessity to dislodge  

the said principle.    

12. Drawing our attention to Section 31(4) of the Act,  

Mr. Viswanathan would contend that the said provision  

is intended to deal only with those situations where even  

after compliance with the first three sub-sections of  

Section 31, there may be two or more courts wherein  

proceedings under those sub-sections may be taken.  But  

it has no application in those cases where a  

superior/higher court has retained control and passed a  

direction to file the award in that court.  The concept of  

choice as enjoined in Section 31(4) has to be understood  

as courts of equal status.  Learned senior counsel would  

further submit that the control of superior courts has to

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be given primacy.  To sustain the said proposition, he  

has placed reliance upon Kumbha Mawji v. Dominion  

of India (Now the Union of India)13. He has laid stress  

that once the superior court retains control which is  

permissible under the Act, there is no further right to  

appeal and, therefore, the submission that the right to  

appeal is extinguished is without merit. To bolster the  

aforesaid proponement, he has drawn immense support  

from the decision in Punjab State Electricity Board  

and others v. Ludhiana Steels Private Ltd.14.  

Commenting on Associated Contractors (supra), it is  

contended by Mr. Viswanathan, that the said authority  

overlooks the main reason in Saith & Skelton (supra)  

and Guru Nanak Foundation (supra) and the principal  

reason in the said authority relates to the definition of  

“Court” under Section 2(1)(e) of the 1996 Act and that  

makes the decision rendered therein distinguishable. It  

has also been urged by him that the decisions which  

have been referred to in Associated Contractors (supra)  

are factually different and when the factual backdrop  

                                                           13 1953 SCR 878 : AIR 1953 SC 313  14 (1993) 1 SCC 205

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differs, the Court has to look at the ratio in the context of  

the case.  He has also urged that the authorities relied on  

by the learned counsel for the appellants are not  

relatable to the controversy at hand because in the said  

cases the court had not retained control of the  

proceedings with it.    

13. To appreciate the controversy, it is crucial to  

appreciate the scheme of the Act. Section 2 is the  

dictionary clause. It commences with the words “unless   

there  is anything  repugnant  in  the  subject  or   

context”.  The contention before us is that the use of  

such words clearly evinces that the term “Court” can be  

assigned a different meaning depending on the context.  

In Union Medical Agency (supra), a three-Judge Bench,  

while dealing with the concept of statutory interpretation  

when the subject matter or context is different, has held:-   

“14. It is a well-settled principle that when a  word or phrase has been defined in the  interpretation clause, prima facie that  definition governs whenever that word or  phrase is used in the body of the statute. But  where the context makes the definition clause  inapplicable, a defined word when used in the  body of the statute may have to be given a

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meaning different from that contained in the  interpretation clause; all definitions given in  an interpretation clause are, therefore,  normally enacted subject to the usual  qualification — “unless there is anything  repugnant in the subject or context”, or  “unless the context otherwise requires”. Even  in the absence of an express qualification to  that effect such a qualification is always  implied.”  

  14. In the case of Saith and Skelton (supra), the Court  

was dealing with Section 2(c) and Section 14(2) of the   

Act and in that context, the three-Judge Bench, keeping  

in view the language employed in the beginning of  

Section 2, opined:-     

“18. … Therefore the expression “Court” will  have to be understood as defined in Section  2(c) of the Act, only if there is nothing  repugnant in the subject or context. It is in  that light that the expression “Court”  occurring in Section 14(2) of the Act will have  to be understood and interpreted.  ...”  

 15. In the aforesaid case, the Court had appointed the  

arbitrator on the consent of the parties and had directed  

him “to make his award”. That apart, no further direction  

was given in the said case. The arbitrator after passing  

the award had filed the same before this Court and in  

that context, the Court held:-  

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“18. … Surely the law contemplates further  steps to be taken after the Award has been  made, and quite naturally the forum for taking  the further action is only this Court. There  was also direction to the effect that the parties  are at liberty to apply for extension of time for  making the Award. In the absence of any other  court having been invested with such  jurisdiction by the order, the only conclusion  that is possible is that such a request must be  made only to the court which passed that  order, namely, this Court.”  

  And again:-     

“19. That this Court retained complete control  over the arbitration proceedings is made clear  by its orders, dated February 1, 1971 and  April 30, 1971. On the former date, after  hearing counsel for both the parties, this  Court gave direction that the record of the  arbitration proceedings be called for and  delivered to the Sole Arbitrator Mr V.S. Desai.  On the latter date, again, after hearing the  counsel, this Court extended the time for  making the Award by four months and further  permitted the arbitrator to hold the arbitration  proceedings at Bombay. The nature of the  order passed on January 29, 1971, and the  subsequent proceedings, referred to above,  clearly show that this Court retained full  control over the arbitration proceedings.”  

  16. Thereafter, the three-Judge Bench referred to the  

decision in Ct. A. Ct. Nachiappa Chettiar and others  

v. Ct. A. Ct. Subramaniam Chettiar15 and placing  

                                                           15 (1960) 2 SCR 209 : AIR 1960 SC 307

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reliance on the same, expressed the view that this Court  

is the “Court” under Section 14(2) of the Act where the  

arbitration award could be validly filed.  

17. In Guru Nanak Foundation (supra) case, since  

differences arose between the parties, an application was  

filed before the High Court under Section 20 of the Act  

which appointed retired Chief Engineer as the sole  

arbitrator to whom the reference was made. When the  

reference was pending, an application was moved before  

the Delhi High Court for removal of the arbitrator and the  

High Court thought it appropriate to reject the  

application. Guru Nanak Foundation assailed the  

soundness of the order passed by the High Court and  

this Court removed the arbitrator and appointed another  

arbitrator and directed the arbitrator to commence the  

proceedings within 15 days and to dispose of the same as  

expeditiously as possible. After the newly appointed  

arbitrator commenced the proceedings, it directed the  

parties to file their pleadings stating that he had desired  

to begin the arbitration proceedings afresh which  

impliedly meant that the pleadings filed before the former

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arbitrator and the evidence led before him were to be  

ignored. That led the first respondent therein to move an  

application before this Court seeking the relief that the  

learned arbitrator should commence the arbitration  

proceedings from the stage where it was left by the  

previous arbitrator. After hearing both the parties, the  

Court directed thus:-  

“CMP No. 1088 of 1977: We have heard  counsel on both sides. It is absolutely plain  that the new arbitrator in tune with the spirit  of the Order passed by this Court should  proceed with speed to conclude the arbitration  proceedings. In the earlier directions by this  Court it had been stated that the proceedings  should commence within 15 days and that the  arbitrator ‘shall try to dispose of the same as  expeditiously as possible’. We direct the  arbitrator, bearing in mind the concurrence of  the counsel on both sides, that he shall  conclude the proceedings within four months  from today.  

 A grievance is made that the arbitrator is  calling for fresh pleadings which may perhaps  be otiose since pleadings have already been  filed by both sides before the earlier arbitrator  Mr Nanda. If any supplementary statement is  to be filed it is certainly open to the parties to  persuade the arbitrator to receive them in one  week from today. The arbitrator will remember  that already some evidence has been collected  and he is only to consider and conclude. With  this directive we dispose of the application.”  

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18. After the award was passed, the arbitrator  

approached the Registry of this Court for filing of the  

award and he was advised by an officer of this Court that  

the award should be filed before the Delhi High Court.  

The arbitrator filed the award in Delhi High Court. At  

that juncture, the respondent therein filed the petition  

seeking a declaration that the award was required to be  

filed before the Supreme Court in view of the provisions  

contained in Section 14(2) read with Section 31(4) of the   

Act. It was contended before the High Court that as the  

reference was made to the arbitrator by the Supreme  

Court and further directions were given, this Court was  

in seisin of the matter and it alone had the jurisdiction to  

entertain the award in view of the provisions of Section  

31(4) of the Act. The matter came to be challenged before  

this Court and the proceedings before the High Court  

were stayed.    

19.  The two-Judge Bench, after narrating the facts,  

posed the following question:-  

“The narrow question in this case therefore is:  in view of the circumstances herein delineated,  which is the court which would have

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jurisdiction to entertain the Award; in other  words which is the court having jurisdiction in  which the Award should be filed by the  arbitrator?”  

 20. Analysing the meaning of the expression “Court” as  

engrafted under Section 2(c) and keeping in view the  

words occurring in the beginning of Section 2, the Court  

stated thus:-   

“13. The dictionary meaning of expression  “court” in Section 2(c) has to be applied  wherever that word occurs in the Act, but with  this limitation that if there is anything  repugnant in the subject or context, the  dictionary meaning may not be applied to the  expression “court”. Assuming that there is  nothing repugnant in the subject or context  the expression “court” in the Act would mean  that civil court which would have jurisdiction  to decide the question forming the subject- matter of the reference if the same had been  the subject-matter of a suit but does not  include a Small Cause Court though it is a  civil court except for the arbitration  proceedings under Section 21. Section 14,  sub-section (2) provides for filing of the Award  in the court and in view of the definition of the  expression “court” the arbitrator will have to  file the Award in that court which would have  jurisdiction to entertain the suit forming the  subject-matter of reference.”  

21. As the discussion in the judgment would show, the  

Court observed that there was some controversy between  

the High Courts whether the expression “Court” would

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comprehend appellate court in which the award can be  

filed but it was finally resolved in the decision in CT. A.  

CT. Nachiappa Chettiar (supra) which held that the  

expressions “suit” and “Court” in Section 21 of the Act  

would also comprehend proceedings in “appeal” and  

“appellate court” respectively because the expression  

“Court” in Section 21 includes the appellate court  

proceedings which are generally recognized as  

continuation of the suit, and the word “suit” would  

include such appellate proceedings.   

22. After so stating, Guru Nanak Foundation (supra)  

proceeded to advert to Section 31(4) of the Act and, in  

that context, held that the non-obstante clause excludes  

anything anywhere contained in the whole Act or in any  

other law for the time being in force if it is contrary to or  

inconsistent with the substantive provision contained in  

sub-section (4).  It further ruled that to that extent it  

carves out an exception to the general question of  

jurisdiction of the court in which Award may be filed  

elsewhere provided in the Act in respect of the  

proceedings referred to in sub-section (4). The provision

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contained in sub-section (4) will have an overriding effect  

in relation to the filing of the Award if the conditions  

therein prescribed are satisfied. If those conditions are  

satisfied, the court other than the one envisaged in  

Section 14(2) or Section 31(1) will be the court in which  

Award will have to be filed. Elaborating the effect of the  

non-obstante clause in sub-section (4) of Section 31, it  

has been opined that Sub-section (4) invests exclusive  

jurisdiction in the court, to which an application has  

been made in any reference and that court is competent  

to entertain as the court having jurisdiction over the  

arbitration proceedings and all subsequent applications  

arising out of reference and the arbitration proceedings  

shall have to be made in that court and in no other  

court. Therefore, sub-section (4) not only confers  

exclusive jurisdiction on the court to which an  

application is made in any reference but simultaneously  

ousts the jurisdiction of any other court which may as  

well have jurisdiction in this behalf. Illustrating further,  

the Court held that if an Award was required to be filed  

under Section 14(2) read with Section 31(1) in any

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particular court as being the court in which a suit  

touching the subject-matter of Award would have been  

required to be filed, but if any application in the  

reference under the Act has been filed in some other  

court which was competent to entertain that application,  

then to the exclusion of the first mentioned court the  

latter court alone, in view of the overriding effect of the  

provision contained in Section 31(4), will have  

jurisdiction to entertain the Award and the Award will  

have to be filed in that court alone and no other court  

will have jurisdiction to entertain the same.  

23. After so stating, the Court observed that the  

provision contained in sub-section (2) of Section 14 will  

neither be rendered otiose nor stand in disharmony with  

the construction that has been placed by it on sub-

section (4) of Section 31 because the expression “Court”  

as defined in Section 2(c) needs to be adhered to unless  

there is anything repugnant in the subject or context in  

which it is used. It is further opined that on a pure  

grammatical construction as well as a harmonious and  

overall view of the various provisions contained in the

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Act, it is quite clear that ordinarily the Court will have  

jurisdiction to deal with the questions arising under the  

Act, except the one in Chapter IV in which the suit with  

regard to the dispute involved in the arbitration would be  

required to be filed under the provisions of the Code of  

Civil Procedure. Elucidating further, the two-Judge  

Bench ruled that when an application is made in any  

reference to a court competent to entertain it, that court  

will have jurisdiction over the arbitration proceeding and  

all subsequent applications arising out of the reference  

and the arbitration proceedings shall be made to that  

court alone and in no other court.  Analysing the facts,  

the learned Judges expressed that this Court had  

complete control over the proceedings before the  

arbitrator.  In view of the fact that the reference was  

made by this Court and further directions were issued  

with regard to the manner and method of conducting the  

arbitrations proceedings and fixing the time for  

completion of the same, this Court alone had the  

jurisdiction to entertain the award. The two-Judge Bench  

placed reliance on Saith and Skelton (supra) and

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expressed that both on principle and on authority, this  

Court alone had the jurisdiction for filing of the award.  

24. It is necessary to state here that on behalf of the  

appellant, reliance was placed on Kumbha Mawji (supra)  

to bolster the stand that Section 31(4) is not confined to  

application made after the reference is made or during  

the pendency of the reference but may take within its  

sweep an application made earlier to the reference being  

made and if such an application has been made to a  

court, that court would have the jurisdiction to entertain  

such an application.  Explaining Kumbha Mawji’s case,  

the two-Judge Bench stated that in the said case a  

contention was raised before this Court that Section  

31(4) is merely confined to applications during the course  

of pendency of a reference to arbitration and this Court  

after analysing the scheme of Section 31, held that there  

is no conceivable reason why the legislature should have  

intended to confine the operation of sub-section (4) only  

to applications made during the pendency of an  

arbitration, if as is contended, the phrase “in any  

reference” is to be taken as meaning “in the course of a

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reference”. Ultimately this Court held that the phrase “in  

any reference” used in sub-section (4) of Section 31  

means “in the course of any reference”, and concluded  

that Section 31, sub-section (4) would vest exclusive  

jurisdiction in the court in which an application for the  

filing of an Award has been first made under Section 14  

of the Act. After so stating, the learned Judges proceeded  

to observe:-  

“22. … We fail to see how this decision would  help in answering the contention canvassed on  behalf of the appellant. In fact the decision in  Kumbha Mawji case was further explained by this  Court in Union of India v. Surjeet Singh Atwal16.  The contention in the latter case was whether an  application under Section 34 of the Act for stay of  the suit was an application made in a reference  within the meaning of Section 31(4) of the Act  and, therefore, subsequent application can only  be made to that court in which stay of the suit  was prayed for. In support of this contention  reliance was placed on Kumbha Mawji case  urging that the expression “in any reference”  under Section 31(4) of the Act is comprehensive  enough to cover application first made after the  arbitration is completed and a final Award made  and the sub-section is not confined to  applications made during the pendency of the  arbitration proceedings. Negativing this  contention this Court held that accepting the  wider meaning given to the phrase “in any  reference” as implying “in the course of a  reference” an application under Section 34 is not  

                                                           16 1969 (2) SCC 211

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an application in a reference within the meaning  of the phrase as elaborated in Kumbha Mawji  case. The Court took notice of various sections  under which an application can be made before a  reference has been made. Therefore, the decision  in Kumbha Mawji case would not mean that a  proceeding earlier to the reference in a court  would clothe that court with such jurisdiction as  to render the provision contained in Section 31(4)  otiose.”  

 The aforesaid analysis only shows that the two-

Judge Bench expressed the opinion that the principles  

stated in Kumbha Mawji would not help in answering  

the contention canvassed on behalf of the appellant  

therein and further stated that the said authority would  

not mean that a proceeding earlier to the reference in a  

court would clothe that court with such jurisdiction as to  

render the provision contained in Section 31(4) otiose.   

25. A further contention was also advanced that if this  

Court were to arrogate the jurisdiction to itself by putting  

such a construction of sub-section (4) of Section 31, it  

would deprive the grieved party of its valuable right to  

prefer an appeal and approach the Court under Article  

136 of the Constitution.  Repelling the said submission,  

the Court referred to Saith & Skelton (P) Ltd. case and

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opined that in an identical situation this Court held that  

the award has to be filed in this Court alone which would  

certainly negative an opportunity to appeal because this  

is the final court. The two-Judge Bench further opined  

that conceding as held by this Court in Garikapati  

Veeraya (supra) that the right of appeal is a vested right  

and such a right to enter the superior court accrues to  

the litigant and exists as on and from the date the lis  

commences, right is not denied or defeated because the  

highest court to which one can come by way of appeal  

will entertain all contentions that may have to be  

canvassed on behalf of the appellant. Thereafter it has  

been stated:-  

“23. ... The door of this Court is not being closed  to the appellant. In fact the door is being held  wide ajar for him to raise all contentions which  one can raise in a proceeding in an originating  summons. Therefore, we see no merit in this  contention and it must be rejected.”  

26. We have extracted the aforesaid passage to highlight  

how the principle laid down in Kumbha Mawji has been  

distinguished in the case of Guru Nanak Foundation  

(supra). To appreciate the reasoning, it is necessary to

27  

analyse the facts and the principles stated in Kumbha  

Mawji (supra). In the said case, the Court stated that the  

three questions which arose for consideration were:-   

“(1) Whether the appellant had the authority  of the umpire to file the awards on his behalf  into court in terms of Section 14(2) of the  Arbitration Act;  

(2) Whether in view of sub-section (3) of  Section 31 of the Act can it be said that the  awards were filed in the Calcutta High Court  earlier than in the Gauhati court; and  

(3) Whether the scope of Section 31 sub- section (4) of the Act is limited to applications  under the Act during the pendency of the  arbitration proceedings only.”  

27. So far as the first question is concerned, we need  

not dwell upon the same.  What is important to note is  

how the Court dealt with the third question and for the  

said purpose, it is necessary to apprise ourselves about  

the facts involved in the said case.  The respondent in the  

said case had filed an application under Section 14(2) of  

the Act before the Subordinate Court of Gauhati in  

Assam to the effect that the umpire be directed to file  

both the awards in the Court. A week after the  

respondent made the first application in the Gauhati

28  

Court, the solicitors for the appellant therein sent a letter  

to the Registrar of the High Court of Calcutta with the  

two awards and requested for issue of notices thereon.   

After some correspondence between the Deputy Registrar  

and solicitors, a direction was issued to serve the awards  

on the parties and fix a date for determination upon the  

said awards by the Commercial Judge of the Court. The  

three-Judge Bench took note of the fact that in respect of  

the same awards, proceedings were initiated purporting  

to be one under Section 14(2) of the Act simultaneously  

filed in the Subordinate Court of Gauhati in Assam as  

well as on the original side of the High Court of Calcutta.  

The contention was raised by the respondent objecting to  

the jurisdiction of the Calcutta Court and to the validity  

of the awards. Learned single Judge of the High Court  

overruled the objection raised by the respondent and  

passed judgment on the awards. On appeal therefrom to  

the Division Bench, the learned Judges differed with the  

judgment of the learned single Judge by opining that  

there had been no proper application under Section 14(2)  

of the Act before the High Court of Calcutta and,

29  

consequently, it had no jurisdiction to deal with the  

matter.  

28. While dealing with the appeals, this Court opined  

that under Section 31(1) of the Act an award may be filed  

in any court having jurisdiction in the matter to which  

the reference relates and in the said case, reference arose  

out of a contract which was entered into at Calcutta and  

had to be performed in Assam and, therefore, Gauhati  

Court as well as Calcutta Court admittedly had  

jurisdiction over the subject matter of the reference. It  

took note of the submission raised by the Union of India  

that an application to Gauhati Court was made earlier  

than the application preferred to Calcutta High Court  

and, therefore, the Calcutta High Court had no  

jurisdiction.  Learned single Judge was of the opinion  

that Section 31(4) related only to applications made  

during the pendency of a reference to arbitration and not  

to applications made subsequent to the making of an  

award. According to the learned single Judge, irrespective  

of applications for filing an award, the exclusive  

jurisdiction was determined with reference to the

30  

question as to which was the competent court in which  

the award was, in fact, first filed under sub-section (2) of  

Section 14, (as distinct from when the application for the  

filing of the award was first presented). In this  

background, interpreting Section 31(3) of the Act, the  

Court held that the Gauhati Court alone had the  

jurisdiction. In respect of the third question which  

pertains to sub-section (4) of Section 31 of the Act, the  

Court, after reproducing the provisions, opined:-   

“11. Sub-section (1) relates to the question as  to where a completed award has to be filed,  and prescribes the local jurisdiction for that  purpose. Sub-section (2) deals with the ambit  of the exercise of that jurisdiction, and  declares it to be exclusive by saying that “all  questions regarding the validity, effect or  existence of an award or arbitration agreement  between the parties to the agreement or  persons claiming under them shall be decided  by the court in which the award under the  agreement has been, or may be, filed and by  no other court”. Sub-section (3) is intended to  provide that all applications regarding the  conduct of arbitration proceedings or  otherwise arising out of such proceedings are  to be made only in one court, and lays on the  concerned party the obligation to do so. Then  comes sub-section (4), the object of which  apparently is to go further than sub-section  (3), that is, not merely casting on the party  concerned an obligation to file all applications  in one court but vesting exclusive jurisdiction

31  

for such applications in the court in which the  first application has been already made.  

12. Thus it will be seen on a comprehensive  view of Section 31 that while the first sub- section determines the jurisdiction of the court  in which an award can be filed, sub-sections  (2), (3) and (4) are intended to make that  jurisdiction effective in three different ways, (1)  by vesting in one court the authority to deal  with all questions regarding the validity, effect  or existence of an award or an arbitration  agreement, (2) by casting on the persons  concerned the obligation to file all applications  regarding the conduct of arbitration  proceedings or otherwise arising out of such  proceedings in one court, and (3) by vesting  exclusive jurisdiction in the court in which the  first application relating to the matter is filed.  The context, therefore, of sub-section (4) would  seem to indicate that the sub-section was not  meant to be confined to applications made  during the pendency of an arbitration. The  necessity for clothing a single court with  effective and exclusive jurisdiction, and to  bring about by the combined operation of  these three provisions the avoidance of conflict  and scramble is equally essential whether the  question arises during the pendency of the  arbitration or after the arbitration is completed  or before the arbitration is commenced. There  is no conceivable reason why the legislature  should have intended to confine the operation  of sub-section (4) only to applications made  during the pendency of an arbitration, if as is  contended, the phrase “in any reference” is to  be taken as meaning “in the course of a  reference”.”  

[Underlining is ours]  

32  

29. Further analyzing the scheme of the Act and various  

categories of arbitration, the Court held:-  

“13. … Indeed, having regard to the wide  language employed in these sub-sections it  has been assumed that sub-sections (2) and  (3) cover all three classes in all their stages. If  so, is there any sufficient reason to think that  sub-section (4) was meant to have a very  restricted operation? On the view of this sub- section suggested for the appellant, not only  would an application made after the award  was pronounced be excluded from sub-section  (4) but also an application made before the  commencement of the arbitration i.e. for the  filing of an agreement of reference and for a  direction thereupon. It must be remembered  that Section 31 is one of the group of sections  headed “General” which by virtue of Section 26  are applicable to all arbitrations. Unless  therefore the wording in sub-section (4) of  Section 31 is so compelling as to confine the  scope thereof to applications during the  pendency of an arbitration, such a limited  construction must be rejected.”  

30. Explicating further, the three-Judge Bench  

stated:-  

“14. As already stated, the entire basis of the  limited construction is the meaning of the  phrase “in any reference” used in sub-section  (4) as meaning “in the course of any  reference”. But such a connotation thereof is  not in any ordinary sense compelling. The  preposition “in” is used in various contexts  and is capable of conveying various shades of  meaning. In the Oxford English Dictionary one  of the shades of meaning of this preposition is

33  

“Expressing reference or relation to  something; in reference or regard to; in the  case of, in the matter, affair, or province of.  Used especially with the sphere or  department in relation or reference to  which an attribute or quality is predicated.”  

In the context of Section 31 sub-section (4), it  is reasonable to think that the phrase “in any  reference” means “in the matter of a  reference”. The word “reference” having been  defined in the Act as “reference to arbitration”,  the phrase “in a reference” would mean “in the  matter of a reference to arbitration”. The  phrase “in a reference” is, therefore,  comprehensive enough to cover also an  application first made after the arbitration is  completed and a final award is made, and in  our opinion that is the correct construction  thereof in the context. We are, therefore, of the  opinion that Section 31(4) would vest exclusive  jurisdiction in the court in which an  application for the filing of an award has been  first made under Section 14 of the Act.”   

[Emphasis Supplied]  

 31. Before we proceed to analyze the ratio of Kumbha  

Mawji, it is necessary to refer to what has been held in  

Surjeet Singh Atwal (supra).  In the said case, the  

three-Judge Bench was dealing with the issue whether  

the application made by the appellant therein under  

Section 34 of the Act was an application in a reference

34  

within the meaning of Section 31(4) of the Act.  Placing  

reliance on Kumbha Mawji, the Court held:-   

“5. … There are different sections in the  Arbitration Act whereby an application is to be  made even before any reference has been  made. Section 8 for instance, provides for an  application to invoke the power of the Court,  when the parties fail to concur in the  appointment of an arbitrator to whom the  reference can be made. So also Section 20  provides for an application to file the  arbitration agreement in court so that an order  of reference to an arbitrator can be made.  These are clearly applications anterior to the  reference but they lead to a reference. Such  applications are undoubtedly applications “in  the matter of a reference” and may fall within  the purview of Section 31(4) of the Act even  though these applications are made before any  reference has taken place. But an application  under Section 34 is clearly not an application  belonging to the same category. It has nothing  to do with any reference. It is only intended to  make an arbitration agreement effective and  prevent a party from going to Court contrary to  his own agreement that the dispute is to be  adjudicated by a private tribunal.”  

 And again:-    

“6. We do not, therefore, consider that an  application for stay of suit under Section 34 is  an application in a reference even within the  wider meaning given to that phrase by this  Court in Kumbha Mawji case. The second  condition imposed by Section 31(4) is that the  application for stay must be made to a Court  competent to entertain it. It should be noticed

35  

that in Section 34 the expression “judicial  authority” is used. The section provides for an  application to a judicial authority before whom  a legal proceeding is pending for the stay of  that proceeding. An application for stay of  legal proceeding to a judicial authority before  whom it is pending is an application under the  Arbitration Act to a judicial authority  competent to entertain it. But the judicial  authority need not necessarily be a court  competent under Section 2(c) to decide the  question forming the subject-matter of the  reference. A party to an arbitration agreement  may choose to file a suit in a court which has  no jurisdiction to go into the matter at all and  merely because the defendant in such a suit  has to make an application to that Court  under Section 34 of the Act for the stay of the  suit it cannot be said that the Court which  otherwise has no jurisdiction in the matter  becomes a Court within the meaning of  Section 2(c) of the Act. The view that we have  expressed is borne out by the decisions of the  Calcutta High Court in Choteylal Shamlal v.  Cooch Behar Oil Mills Ltd.17; Brittannia Building  & Iron Co. Ltd. v. Gobinda Chandra  Bhattacharya18 and Basanti Cotton Mills Ltd. v.  Dhingra Brothers19.”  

32. From the aforesaid two judgments, it is crystal clear  

that “reference” has been given a wider meaning in  

Kumbha Mawji and the same has been followed in  

Surjeet Singh Atwal (supra). In Guru Nanak  

Foundation (supra), the two-Judge Bench distinguished  

                                                           17 ILR (1951) Cal 418  18 64 CWN 325  19 AIR 1949 Cal 684

36  

the decision in Kumbha Mawji stating that the ratio in  

the earlier case would not mean that a proceeding earlier  

to the reference in a court would clothe that court with  

such jurisdiction as to render the provision contained in  

Section 31(4) otiose. We shall refer to the aforesaid  

principle slightly at a later stage. Prior to that, we would  

like to refer to certain other pronouncements wherein it  

has been held that the Supreme Court alone has  

jurisdiction if it had control over the proceedings.  We  

have earlier referred to Saith and Skelton (supra).               

Mr. Viswanathan, learned senior counsel, has drawn  

inspiration from Nav Bharat Construction Company  

(supra) and Burn Standard Co. Ltd. (supra).  In Burn  

Standard Co. Ltd., the three-Judge Bench referred to  

the order passed by this Court wherein directions were  

issued that the arbitrator shall file the award in this  

Court and any application which may become necessary  

to be filed during or after the conclusion of the  

arbitration proceedings shall be filed only in this Court  

and, accordingly, it directed that the objection petition  

under Section 34 could have been filed only in this

37  

Court.  This order was passed in the context of Section  

34 of the 1996 Act.  As we notice from the said order, no  

independent reasons have been ascribed but the order  

has been passed solely on the basis of an earlier order.    

33. At this juncture, we think it apt to immediately refer  

to the recent decision in Associated Contractors  

(supra). The three-Judge Bench was dealing with the  

meaning of “Court” under Section 2(1)(e) of the 1996 Act.  

Answering the reference, the three-Judge Bench referred  

to Section 2(1)(e)  and Section 42 of the 1996 Act and in   

that context, it has held:-   

“20. As noted above, the definition of “court” in  Section 2(1)(e) is materially different from its  predecessor contained in Section 2(c) of the  1940 Act. There are a variety of reasons as to  why the Supreme Court cannot possibly be  considered to be “court” within the meaning of  Section 2(1)(e) even if it retains seisin over the  arbitral proceedings. Firstly, as noted above,  the definition is exhaustive and recognizes  only one of two possible courts that could be  “court” for the purpose of Section 2(1)(e).  Secondly, under the 1940 Act, the expression  “civil court” has been held to be wide enough  to include an appellate court and, therefore  would include the Supreme Court as was held  in the two judgments aforementioned under  the 1940 Act. Even though this proposition  itself is open to doubt, as the Supreme Court  exercising jurisdiction under Article 136 is not

38  

an ordinary appellate court, suffice it to say  that even this reason does not obtain under  the present definition, which speaks of either  the Principal Civil Court or the High Court  exercising original jurisdiction. Thirdly, if an  application would have to be preferred to the  Supreme Court directly, the appeal that is  available so far as applications under Sections  9 and 34 are concerned, provided for under  Section 37 of the Act, would not be available.  Any further appeal to the Supreme Court  under Article 136 would also not be available.  The only other argument that could possibly  be made is that all definition sections are  subject to context to the contrary. The context  of Section 42 does not in any manner lead to a  conclusion that the word “court” in Section 42  should be construed otherwise than as  defined. The context of Section 42 is merely to  see that one court alone shall have jurisdiction  over all applications with respect to arbitration  agreements which context does not in any  manner enable the Supreme Court to become  a “court” within the meaning of Section 42. It  has aptly been stated that the rule of forum  conveniens is expressly excluded by Section  42 see JSW Steel Ltd. v. Jindal Praxair Oxygen  Co. Ltd.20, SCC at p. 542, para 59). Section 42  is also markedly different from Section 31(4) of  the 1940 Act in that the expression “has been  made in a court competent to entertain it”  does not find place in Section 42. This is for  the reason that, under Section 2(1)(e), the  competent court is fixed as the Principal Civil  Court exercising original jurisdiction or a High  Court exercising original civil jurisdiction, and  no other court. For all these reasons, we hold  that the decisions under the 1940 Act would  not obtain under the 1996 Act, and the  

                                                           20 (2006) 11 SCC 521

39  

Supreme Court cannot be “court” for the  purposes of Section 42.     

21. One other question that may arise is as to  whether Section 42 applies after the arbitral  proceedings come to an end. It has already  been held by us that the expression “with  respect to an arbitration agreement” are words  of wide import and would take in all  applications made before during or after the  arbitral proceedings are over. In an earlier  judgment, Kumbha Mawji v. Dominion of India,  the question which arose before the Supreme  Court was whether the expression used in  Section 31(4) of the 1940 Act “in any  reference” would include matters that are after  the arbitral proceedings are over and have  culminated in an award. It was held that the  words “in any reference” cannot be taken to  mean “in the course of a reference”, but mean  “in the matter of a reference” and that such  phrase is wide enough and comprehensive  enough to cover an application made after the  arbitration is completed and the final award is  made (see SCR pp. 891-93 : AIR pp. 317-18,  paras 13-16). As has been noticed above, the  expression used in Section 42 is wider being  “with respect to an arbitration agreement” and  would certainly include such applications.”  

 We have extensively referred to the said judgment  

as we agree with the principle stated therein and there is  

no reason to accept what has been stated in Burn  

Standard Co. Ltd. (supra).   

34. In Nav Bharat Construction Company (supra),  

this Court had appointed a retired Judge of this Court as

40  

umpire and had also held that the reference was not a  

new one but a continuation of the earlier proceedings  

under the Act.  Further, the Court directed the award to  

be filed in this Court. After the award was passed by the  

learned arbitrator, the State of Rajasthan filed an  

application for making the award Rule of the court and  

at the same time, the respondent filed petition under  

Sections 30 and 33 of the Act and interlocutory  

application was filed by the respondent challenging the  

jurisdiction of this Court to make the award absolute and  

also to consider the objection raised by the respondent  

against the award passed by the umpire in pursuance of  

the order passed by this Court. Repelling the stand of the  

respondent, the Court held:-   

“11. From the judgment of this Court dated                4-10-2005, it has been made clear by this  Court in the operative part of the same, as  noted hereinearlier, that the award that would  be passed by the umpire must be filed in this  Court and secondly, it was clarified in the  judgment itself that this was not a case of a  new reference but a continuation of the earlier  proceeding and thus the Act shall continue to  apply. In McDermott International Inc., the  three-Judge Bench decision of this Court  clearly observed that since the arbitrator was  directed to file his award in this Court, the  objections as well as the entertainability of the

41  

application of the appellant for making the  award a rule of the court must be filed in this  Court alone and, therefore, this Court has the  jurisdiction to entertain the application of the  appellant and also the objections filed by the  respondent.”  

35. After so stating, the Court ruled that it had the  

jurisdiction to deal with the objections filed under  

Sections 30 and 33 of the Act.  

36. We may immediately make it clear that in Nav  

Bharat Construction Company (supra), the matter  

related to reference under Section 20 of the Act.   

37. Presently, we may proceed to analyze the reasoning  

given by the three-Judge Bench in Saith and Skelton  

(supra).  The Court in the said case expressed the view  

that the directions contained in the order passed by the  

Court and the further proceedings indicated the  

retention of full control by this Court over the arbitration  

proceeding.  Placing reliance on CT. A. CT. Nachiappa  

Chettiar (supra), the Court held thus:-   

“21. In Ct. A. Ct. Nachiappa Chettiar v. Ct. A.  Ct. Subramaniam Chettiar the question arose  whether the trial court had jurisdiction to refer  the subject-matter of a suit to an arbitrator  when the decree passed in the suit was

42  

pending appeal before the High Court. Based  upon Section 21, it was urged before this  Court that the reference made by the trial  court, when the appeal was pending, and the  award made in consequence of such reference,  were both invalid as the trial court was not  competent to make the order of reference. This  Court rejected the said contention and after a  reference to Sections 2(c) and 21 of the Act  held that the expression “Court” occurring in  Section 21 includes also the appellate court,  proceedings before which are a continuance of  the suit. It was further held that the word  “suit” in Section 21 includes also appellate  proceedings. In our opinion, applying the  analogy of the above decision, the expression  “Court” occurring in Section 14(2) of the Act  will have to be understood in the context in  which it occurs. So understood, it follows that  this Court is the Court under Section 14(2)  where the arbitration Award could be validly  filed.”  

38. In this backdrop, it is necessary to delve into what  

precisely has been stated in CT. A. CT. Nachiappa  

Chettiar (supra).  The facts as narrated in the decision  

are that a partition suit was filed by the respondent  

therein. The question that emerged for consideration  

pertained to the validity of the award made by the  

arbitrators to whom the matters in dispute between the  

parties were referred pending the present litigation.  The  

suit was fixed for hearing.  An application was filed by

43  

the appellant therein under Order VIII Rule 9 of the Code  

of Civil Procedure for permission to file an additional  

written statement. The said application was dismissed by  

the trial Judge on the ground that it sought to raise a  

new and inconsistent plea. Against the said decision,  

appeals were filed before the High Court.  The High Court  

ordered that there was no need to stay all proceedings  

before the Commissioner and that it would be enough if  

the passing of the final decree alone was stayed. After the  

said order was passed, the Commissioner commenced  

his enquiry but before the enquiry could make any  

progress, the parties decided to refer their disputes for  

arbitration. As other proceedings in the suit were not  

stayed, an application was filed by the parties before the  

trial Judge requesting to refer the matter to arbitration.  

The trial court allowed the said application and certified  

that the proposed reference was for the benefit of the  

minors and so referred “the matters in dispute in the suit  

and all matters and proceedings connected therewith” for  

determination by the two arbitrators named by the  

parties. The arbitrators began their proceedings and

44  

passed an interim award which was filed before the trial  

court. An objection was filed to set aside the award on  

the ground that the reference was bad and the  

arbitrators were guilty of misconduct.  That apart, many  

other grounds were also raised.  The said objections were  

traversed by the other side and a prayer was made to  

pass decree in terms of the award. The trial Judge  

rejected the stand of the objector with regard to the  

alleged misconduct of the arbitrators and further found  

that there was no substance in the contention that the  

reference was a result of undue influence or coercion.    

The trial Judge, however, held that reference to the  

arbitrators which included matters in dispute in the suit  

comprised questions of title in relation to immoveable  

properties in Burma and so it was without jurisdiction  

and invalid. On appeal being preferred, the High Court  

allowed the appeal of the respondent (respondent before  

this Court) and confirmed the findings of the trial court  

in respect of the pleas raised by the appellants before the  

High Court as to the misconduct of the arbitrators and  

invalidity of the reference on the ground that it was the

45  

result of coercion and undue influence. It further  

reversed the conclusions of the trial court that the  

reference and the award were invalid inasmuch as they  

related to immovable properties in Burma and  

contravened the stay order passed by the High Court.  It  

is worthy to note that it was urged before the High Court  

that the order of reference was invalid under Section 21  

of the Act and that the trial court was not competent to  

make the reference but the said contention was  

negatived by the High Court. Consequently, the High  

Court found that the reference and the award were valid  

and, accordingly, it directed that a decree should be  

passed in terms of the award.   

39. This Court, in the course of analysis, considered the  

objection against the validity of the reference as that was  

seriously pressed before it. It took note of the submission  

that the reference and award were invalid because the  

trial court was not competent to make the order of  

reference under Section 21 of the Act.  The Court referred  

to Section 21 and observed that two conditions must be  

satisfied before an application in writing for reference is

46  

made, namely, (i) all the interested parties to the suit  

must agree to obtain a reference, and (ii) the subject  

matter of the reference must be any matter in difference  

between the parties to the suit.  The three-Judge Bench  

observed that the construction of the Section presents no  

difficulty but to analyse the implication of the two  

conditions and to seek to determine the denotation of the  

word “Court” difficulties arise.  It posed the question,  

what does the word “Court” mean in relevant provision.  

According to the appellants therein, “Court” means court  

as defined by Section 2(c) of the Act. The argument on  

behalf of the appellants therein was that the order of  

reference could be made only by the trial court and not  

by the appellate court and so, there could be no  

reference after the suit was decided and a decree had  

been drawn up in accordance with the judgment of the  

trial court. As in the said case, the judgment had been  

delivered by the trial court and a preliminary decree had  

been drawn in accordance with it, there was no scope for  

making any order of reference. Dealing with the  

submission, the Court held:-  

47  

“35. Does the “court” in the context mean the  trial court? This construction cannot be easily  reconciled with one of the conditions  prescribed by the section. After a decree is  drawn up in the trial court and an appeal is  presented against it, proceedings in appeal are  a continuation of the suit; and speaking  generally, as prescribed by Section 107 of the  Code of Civil Procedure the appellate court has  all the powers of the trial court and can  perform as nearly as may be the same duties  as are conferred and imposed on the trial  court. If that be so, during the pendency of the  appeal, can it not be said that matters in  difference between the parties in suit continue  to be matters in dispute in appeal? The  decision of the appeal can materially affect the  nature and effect of the decree under appeal;  and there is no doubt that all the points raised  for the decision of the appellate court can be  and often are points in difference between  them in the suit; and, in that sense, despite  the decision of the trial court the same points  of difference in suit continue between the  parties before the appellate court. If during the  pendency of such an appeal parties interested  agree that any matter in difference between  them in the appeal should be referred to  arbitration the first two conditions of the  section are satisfied. When Section 21 was  enacted did Legislature intend that during the  pendency of the appeal no reference should be  made even if the parties satisfied the first two  conditions prescribed by the section?”     

40. Further analyzing the object of enacting Section 21  

and the intention behind the said Section, the Court  

ruled:-   

48  

“36. Having regard to the fact that the words  used in Section 21 are substantially the same  as those used in Schedule II, para 1, of the  earlier Code, it would be difficult to sustain the  plea that the enactment of Section 21 was  intended to bring about such a violent  departure from the existing practice. If that  had been the intention of the Legislature it  would have made appropriate changes in the  words used in Section 21. Therefore, the word  “court” cannot be interpreted to mean only the  trial court as contended by the appellants.  Similarly, the word “suit” cannot be construed  in the narrow sense of meaning only the suit  and not an appeal. In our opinion, “court” in  Section 21 includes the appellate court  proceedings before which are generally  recognised as continuation of the suit; and the  word “suit” will include such appellate  proceedings. We may add that whereas Section  41 of the Act is consistent with this view no  other section militates against it.”  

41. Proceeding further, the three-Judge Bench  

expressed thus:-  

“37. … In our opinion the scheme of the  section does not permit the addition of any  words qualifying the word “judgment” used in  it. The expression “at any time before the  judgment is pronounced” is only intended to  show the limit of time beyond which no  reference can be made, and that limit is  reached when a final judgment is pronounced.  The provision that “any matter in difference  between the parties in the suit can be referred  to arbitration” cannot be subjected to the  further limitation that the said matter can be  referred to arbitration if it is not covered by the  judgment of the court. The effect of the section

49  

appears to be that so long as the final  judgment is not pronounced by the court any  matter — i.e., some or all the matters — in  difference between the parties can be referred  to arbitration provided they are agreed about  it. If a reference can be made even at the  appellate stage when all matters in difference  between the parties are covered by the final  judgment of the trial court, it is difficult to  understand why in allowing reference to be  made during the pendency of the suit in the  trial court any further conditions should be  imposed that only such matters of difference  can be referred to as are not covered by an  interlocutory judgment of the court. We would  accordingly hold that it is open to the trial  court to refer to arbitration any matters of  difference between the parties to the suit  provided they agree and apply at any time  before the court pronounces its final judgment  in the suit.”  

42. We may also note with profit that the Court  

addressed to another complication as the appeals were  

pending before the High Court at the material time. The  

issue that arose was which is the court that had  

jurisdiction in such a case to make the order of  

reference. The Court opined that there is no difficulty in  

holding that if the suit is pending in the trial court and a  

final judgment has not been pronounced by it, it is the  

trial court which is competent to make the order of  

reference. Similarly, if a suit has been decided, a final

50  

judgment has been delivered and a decree has been  

drawn up by the trial court and no appeal has been  

preferred against it, the matter is concluded and there is  

no scope for applying Section 21 at all. Proceeding  

further, the Court stated that if a decree determining the  

suit has been drawn up by the trial court and it is taken  

to the appellate court, during the pendency of the appeal,  

it is the appellate court that is competent to act under  

Section 21. It further observed that these categories of  

cases do not present any difficulty but where a  

preliminary decree has been drawn up and an appeal  

has been filed against it, the complication arises by  

reason of the fact that the disputes between the parties  

are legally pending before two courts.  Proceedings which  

would have to be taken between the parties in pursuance  

of, and consequent upon, the preliminary decree are  

pending before the trial court whereas matters in  

difference between the parties which are covered by the  

preliminary judgment and decree are pending before the  

appellate court. In that context, the Court held:-   

“39. … In such a case it may perhaps be  logically possible to take the view that the

51  

arbitration in respect of the disputes in  relation to proceedings subsequent to the  preliminary decree can be directed by the trial  court, whereas arbitration in respect of all the  matters concluded by the trial court’s  preliminary judgment which are pending  before the appellate court can be made by the  appellate court; but such a logical approach is  not wholly consistent with Section 21; and  rather than help to solve any difficulty it may  in practice create unnecessary complications.  In most cases matters in dispute before the  trial court in final decree proceedings are so  inextricably connected with the matters in  dispute in appeal that effective arbitration can  be ordered only by one reference and not by  two. We are, therefore, inclined to hold that in  a case of this kind where both the courts are  possessed of the matters in dispute in part it  would be open to either court to make an order  of reference in respect of all the matters in  dispute between the parties. It is argued that  on such a construction conflict of decisions  may arise if two sets of arbitrators may be  appointed. We do not think that such a conflict  is likely to occur. If the parties move the trial  court and obtain an order of reference they  would inevitably ask for appropriate orders of  withdrawal or stay of the appellate  proceedings; if, on the other hand, they obtain  a similar order of reference from the appellate  court they would for similar reasons apply for  stay of the proceedings before the trial court.  In the present case proceedings subsequent to  the preliminary decree were pending before the  trial court and so we must hold that the trial  court was competent to act under Section 21.  On that view the objection against the validity  of the reference based on the provisions of  Section 21 cannot succeed.”  

52  

43.  The aforesaid analysis of the Court has to be  

appositely appreciated. It seems to us, the facts in the  

said case were quite different and the principle that the  

Court has laid down lucidly states that the appellate  

court includes the court of first instance and the power of  

reference under Section 21 of the Act can still be  

exercised by the appellate court under certain  

circumstances.  We do not have any difference with the  

proposition that has been laid down in the said decision.   

The analogy of the said decision has been applied to  

understand the expression “Court” occurring in Section  

14(2) of the Act.  True, in Saith and Skelton (supra), the  

learned Judges have qualified the same by stating the  

context in which it occurs.  Bestowing our thoughtful  

consideration, we are disposed to think that the analogy  

taken from CT. A. CT. Nachiappa Chettiar (supra) and  

applying to the superior courts attaching condition  

precedent that should the superior court retain control  

over the arbitral proceedings, it will have exclusive  

jurisdiction is neither correct nor acceptable.  On a  

careful reading of the judgment in CT. A. CT. Nachiappa

53  

Chettiar, we do not find anything that can be remotely  

connected to confer power on the superior courts to deal  

with the award directly.  The analogy, if any, has to stop  

at a particular level.  To explicate, in a given case, the  

parties may agree for arbitration and the court may think  

it appropriate to send it for arbitration.  But to expand  

the theory that the court had issued directions after the  

appointment of arbitrator and was in control of it and,  

therefore, the award can only be filed before the superior  

court for the purpose of making it a Rule of Court as has  

been held in Saith and Skelton does not flow from the  

correct understanding of the principle stated in CT. A.  

CT. Nachiappa Chettiar.   

44. Guru Nanak Foundation (supra), as we have  

narrated earlier, refers to the definition of “Court” and  

analyses sub-section (2) of Section 14 and sub-section (4)  

of Section 31 and opines that sub-section (4) of Section  

31 not only confers exclusive jurisdiction on the court to  

which an application is made in any reference but also  

simultaneously ousts the jurisdiction of any other court

54  

which may as well have jurisdiction in itself.  To illustrate  

the point further, the Bench has stated:-  

“15. …  if an Award was required to be filed  under Section 14(2) read with Section 31(1) in  any particular court as being the court in  which a suit touching the subject-matter of  Award would have been required to be filed,  but if any application in the reference under  the Act has been filed in some other court  which was competent to entertain that  application, then to the exclusion of the first  mentioned court the latter court alone, in view  of the overriding effect of the provision  contained in Section 31(4), will have  jurisdiction to entertain the Award and the  Award will have to be filed in that court alone  and no other court will have jurisdiction to  entertain the same.”  

And again:-     

“16. The provision contained in sub-section (2)  of Section 14 will neither be rendered otiose  nor stand in disharmony on the construction  that we place on sub-section (4) of Section 31  because the expression “court” as defined in  Section 2(c) will have to be adhered to unless  there is anything repugnant in the subject or  context in which it is used. Therefore, the  expression “court” as used in Section 14(2) will  have to be understood in this background.”   

 The aforesaid reasoning, does not really lay the  

foundation for establishing the proposition that if a  

superior court keeps control over the arbitral proceeding  

the award can only be filed before the said Court.

55  

45.  At this juncture, we may refer to the definition of  

the word ‘Court’ in Section 2(c) of the Act.  It reads as  

follows:-  

“Section 2(c) ‘Court’ means a Civil Court  having jurisdiction to decide the question  forming the subject-matter of the reference if  the same had been the subject matter of a  suit, but does not, except for the purpose of  arbitration proceedings under Section 21,  include a Small Cause Court.”    

46. Section 14 deals with the award to be signed and  

filed by the Arbitrator.  Section 14(2) refers to the word  

“Court”.  Sub-section (2) reads as follows:-  

“(2) The arbitrators or umpire shall, at the  request of any party to the arbitration  agreement or any person claiming under such  party or if so directed by the Court and upon  payment of the fees and charges due in respect  of the arbitration and award and of the costs  and charges of filing the award, cause the  award or a signed copy of it, together with any  depositions and documents which may have  been taken and proved before them, to be filed  in Court, and the Court shall thereupon given  notice to the parties of the filing of the award.”    

47.  Section 31 deals with the jurisdiction of the Courts.   

Sub-section (1) stipulates that subject to the provisions  

of this Act, an award may be filed in any court having  

jurisdiction in the matter to which the reference relates.  

56  

Sub-section (2) lays down that notwithstanding anything  

contained in any other law for the time being in force and  

save as otherwise provided in this Act, all questions  

regarding the validity, effect or existence of an award or  

an arbitration agreement between the parties to the  

agreement or persons claiming under them shall be  

decided by the court in which the award under the  

agreement has been, or may be, filed, and by no other  

Court. Sub-section (4) which commences with a non-

obstante clause, reads as follows:-   

“(4) Notwithstanding anything contained  elsewhere in this Act or in any other law for  the time being in force, where in any reference  any application under his Act has been made  in a Court competent to entertain it, that  Court alone shall have jurisdiction over the  arbitration proceedings and all subsequent  application arising out of that reference and  the arbitration proceeding shall be made in  that court in no other Court.”    

48. The said provision, as noted earlier, has been  

interpreted in Kumbha Mawji (supra).  Interpreting the  

said provision, the three-Judge Bench has held that the  

object of the said sub-section is apparently to go further  

than sub-section (3), that is, not merely casting on the  

party concerned an obligation to file all applications in

57  

one court for vesting exclusive jurisdiction for such  

applications in the court in which the first application  

has been already made. The interpretation placed by the  

three-Judge Bench is to the effect that on a  

comprehensive view of Section 31 that while the first  

sub-section determines the jurisdiction of the court in  

which an award can be filed, sub-sections (2), (3) and (4)  

are intended to make that jurisdiction effective in three  

different ways, (1) by vesting in one court the authority to  

deal with all questions regarding the validity, effect or  

existence of an award or an arbitration agreement, (2) by  

casting on the persons concerned the obligation to file all  

applications regarding the conduct of arbitration  

proceedings or otherwise arising out of such proceedings  

in one court, and (3) by vesting exclusive jurisdiction in  

the court in which the first application relating to the  

matter is filed. The further analysis of the Court is that  

the context of sub-section (4) would seem to indicate that  

the sub-section was not meant to be confined to  

applications made during the pendency of an arbitration.  

The necessity for clothing a single court with effective

58  

and exclusive jurisdiction, and to bring about by the  

combined operation of the three provisions the avoidance  

of conflict and scramble is equally essential whether the  

question arises during the pendency of the arbitration or  

after the arbitration is completed or before the arbitration  

is commenced. There is no conceivable reason that the  

legislature has intended to confine the operation of sub-

section (4) only to applications made during the  

pendency of arbitration because the phrase “in any  

reference” is to be taken as meaning “in the course of a  

reference”.  

49. As noted earlier, the Court has interpreted the  

phrase ‘in any reference’ to connote ‘in the matter or  

course of a reference’ which would mean in the matter of  

a reference to arbitration and also include the stage when  

the final award is made. This has been distinguished in  

Guru Nanak Foundation by referring to Section 31(4) of  

the Act as regards the meaning of the word ‘Court’ and  

assuming the premise that the Supreme Court can also  

become the court of first instance if it has retained  

control over the proceedings. On a perusal of the

59  

definition of the term ‘Court’ in the dictionary clause and  

the meaning of the word ‘Court’ as employed in Section  

31(4) of the Act and appreciating the same in the context  

of the provisions and also taking note of the scheme of  

the Act, we find that the construction placed in Guru  

Nanak Foundation (supra) suffers from a fundamental  

fallacy.  The language used in Section 31(4) of the Act  

commences with the non-obstante clause. The said part  

of the provision has to be understood in the textual  

context because primarily the provision is an enabling  

one and the real intendment that is conveyed through the  

vehicle of expressive language is that where any  

application has been made in a reference under the Act  

as regards the Court which has competence to entertain  

an application, that court alone shall have the  

jurisdiction over the arbitration proceedings. The purpose  

behind the said provision is to avoid conflict in the  

exercise of jurisdiction and to inject the intention of  

certainty of the jurisdictional court keeping in view the  

scheme of the Act which is meant to facilitate the process  

of arbitration and see the finality of the post award

60  

proceedings.  Therefore, it is difficult to accept that the  

Supreme Court can assume original jurisdiction, solely  

because of control over the proceedings, for original  

jurisdiction has been conferred upon the Supreme Court  

under Articles 32 and 131 of the Constitution.  It is also  

worthy to note that the said original jurisdiction is not  

available to this Court in respect of a dispute that finds  

mention in Article 262 of the Constitution.  In State of  

Karnataka v. State of Tamil Nadu and others21, the  

three-Judge Bench, after analysing the width of Article  

32 and the concept of original jurisdiction of the Supreme  

Court as envisaged under Article 131 of the Constitution  

and analyzing the language employed under Article 262,  

has held that the authority conferred under Article 32  

has its limitations when the lis under Article 262  

emerges. The Constitution has not provided machinery  

for resolution of the disputes in the Constitution but has  

empowered Parliament to make laws to provide to  

exclude the power of the Supreme Court or any other  

court with regard to jurisdiction in respect of complaints  

                                                           21 (2017) 3 SCC 362

61  

or disputes that find mention in Article 262(1).  

Thereafter, the Court referred to the authorities in State  

of Orissa v. Government of India and another22 and  

Networking of Rivers, In re23. In Networking of  

Rivers, in re (supra), the Court ruled that Section 11 of  

the Inter-State River Water Disputes Act, 1956 (for short,  

“the 1956 Act”) uses the expression “use, distribution  

and control of water in any river” and they are the  

keywords in determination of the scope of power  

conferred on a tribunal constituted under Section 3 of  

the 1956 Act. If a matter fell outside the scope of these  

three crucial words, the power of Section 11 of the 1956  

Act in ousting the jurisdiction of the courts in respect of  

any water dispute, which is otherwise to be referred to  

the tribunal, would not have any manner of application.  

The test of maintainability of a legal action initiated by a  

State in a court would thus be, whether the issues raised  

therein are referable to a tribunal for adjudication of the  

manner of use, distribution and control of water.  

                                                           22 (2009) 5 SCC 492  23 (2012) 4 SCC 51

62  

50. Be it noted, in the said case, the three-Judge Bench  

opined that the award passed by the Tribunal can be  

scrutinized under Article 136 of the Constitution and the  

special leave to appeal would be maintainable. The  

purpose of referring to the aforesaid judgment in detail is  

to show that where the original jurisdiction has been  

conferred by the Constitution upon this Court and where  

it is barred.    

51. In the aforesaid backdrop, the question that is  

required to be posed is whether this Court by using the  

expression “keep controls over the arbitral proceeding”  

can assume original jurisdiction. As indicated earlier, the  

Court has assumed the jurisdiction by interpreting the  

word ‘Court’ as used in Section 31(4) of the Act. We have  

already held that interpretation is not in accord with the  

language used in the provision and the intention of the  

legislature.  It is clear to us that the court competent to  

entertain the reference will have the jurisdiction to deal  

with the objections to the award or any post award  

proceeding.  

63  

52. Another significant issue that arises for  

consideration is whether the Court can, by assuming  

such original jurisdiction, deprive the party to prefer an  

appeal which is statutorily provided.  In Bharat Coking  

Coal Limited, it has been observed thus:-  

“8. It is now a trite law that whenever a term has  been defined under a statute, the same should  ordinarily be given effect to. There cannot,  however, be any doubt whatsoever that the  interpretation clause being prefaced by the words  “unless there is anything repugnant in the  subject and context” may in given situations lead  this Court to opine that the legislature intended a  different meaning. (See State of Maharashtra v.  Indian Medical Assn.24 and Pandey & Co.  Builders (P) Ltd. v. State of Bihar25.)  

9. While determining such a question, the Court  ordinarily again must preserve the right of a  party to prefer an appeal. A right of appeal is a  valuable right and unless there exist cogent  reasons, a litigant should not be deprived of the  same. It is a statutory right.”  

 53. It is worthy to mention that in the said case, the  

two-Judge Bench had distinguished Guru Nanak  

Foundation on facts.  But the emphasis has been on the  

sustenance of the right of a party to prefer an appeal.  In  

this context, Mr. Sinha has drawn our attention to the  

                                                           24 (2002) 1 SCC 589  25 (2007)1 SCC 467

64  

Constitution Bench decision in Garikapati Veeraya   

(supra) that lays down that the legal pursuit of a remedy,  

suit, appeal and second appeal are really but steps in a  

series of proceedings all connected by an intrinsic unity  

and are to be regarded as one legal proceeding and the  

right of appeal is not a mere matter of procedure but is a  

substantive right.  It has been further held that the right  

of appeal is a vested right and such a right to enter the  

superior court accrues to the litigant and exists as on  

and from the date the lis commences and although it  

may be actually exercised when the adverse judgment is  

pronounced such right is to be governed by the law  

prevailing at the date of the institution of the suit or  

proceeding and not by the law that prevails at the date of  

its decision or at the date of the filing of the appeal and  

the said vested right of appeal can be taken away only by  

a subsequent enactment, if it so provides expressly or by  

necessary intendment and not otherwise.   

54. The principle laid down by the Constitution Bench  

graphically exposits that right to appeal is a vested right  

and such a right exists on and from the date the lis

65  

commences and the said right can be taken away only by  

a subsequent enactment, if it so provides expressly or by  

necessary intendment and not otherwise. In this context,  

we have also been commended to the authority in A.R.  

Antulay (supra). In the said case referring to Prem  

Chand Garg and another v. The Excise  

Commissioner, U.P and others26 and relying on the  

same, Sabyasachi Mukharji, J. (as His Lordship then  

was) stated:-  

“50. … The fact that the rule was discretionary  did not alter the position. Though Article  142(1) empowers the Supreme Court to pass  any order to do complete justice between the  parties, the court cannot make an order  inconsistent with the fundamental rights  guaranteed by Part III of the Constitution. No  question of inconsistency between Article  142(1) and Article 32 arose. Gajendragadkar,  J., speaking for the majority of the judges of  this Court said that Article 142(1) did not  confer any power on this Court to contravene  the provisions of Article 32 of the Constitution.  Nor did Article 145 confer power upon this  Court to make rules, empowering it to  contravene the provisions of the fundamental  right. At page 899 of the Reports,  Gajendragadkar, J., reiterated that the powers  of this Court are no doubt very wide and they  are intended and “will always be exercised in  the interests of justice”. But that is not to say  that an order can be made by this Court which  

                                                           26 1963 Supp. 1 SCR 885 : AIR 1963 SC 996

66  

is inconsistent with the fundamental rights  guaranteed by Part III of the Constitution. It  was emphasised that an order which this Court  could make in order to do complete justice  between the parties, must not only be  consistent with the fundamental rights  guaranteed by the Constitution, but it cannot  even be inconsistent with the substantive  provisions of the relevant statutory laws  (emphasis supplied). The court therefore, held  that it was not possible to hold that Article  142(1) conferred upon this Court powers which  could contravene the provisions of Article 32.”  

55. In paragraph 91 of the said judgment, in the  

concurring opinion, it has been stated thus:-  

“91. It is the settled position in law that  jurisdiction of courts comes solely from the law  of the land and cannot be exercised otherwise.  So far as the position in this country is  concerned conferment of jurisdiction is  possible either by the provisions of the  Constitution or by specific laws enacted by the  legislature. For instance, Article 129 confers all  the powers of a court of record on the Supreme  Court including the power to punish for  contempt of itself. Articles 131, 132, 133, 134,  135, 137, 138 and 139 confer different  jurisdictions on the Supreme Court while  Articles 225, 226, 227, 228 and 230 deal with  conferment of jurisdiction on the High Courts.  Instances of conferment of jurisdiction by  specific law are very common. The laws of  procedure both criminal and civil confer  jurisdiction on different courts. Special  jurisdiction is conferred by special statute. It is  thus clear that jurisdiction can be exercised  only when provided lower either in the  Constitution or in the laws made by the

67  

legislature. Jurisdiction is thus the authority  or power of the court to deal with a matter and  make an order carrying binding force in the  facts. In support of judicial opinion for this  view reference may be made to the Permanent  Edition of “Words und Phrases” Vol. 23-A at  page 164. It would be appropriate to refer to  two small passages occurring at pages 174 and  175 of the volume. At page 174, referring to  the decision in Carlile v. National Oil &  Development Co. it has been stated.  

Jurisdiction is the authority to hear  and determine, and in order that it  may exist the following are essential:  (1) A court created by law, organized  and sitting; (2) authority given to it by  law to hear and determine causes of  the kind in question; (3) power given to  it by law to render a judgment such as  it assumes to render; (4) authority over  the parties to the case if the judgment  is to bind them personally as a  judgment in personam, which is  acquired over the plaintiff by his  appearance and submission of the  matter to the court, and is acquired  over the defendant by his voluntary  appearance, or by service of process on  him; (5) authority over the thing  adjudicated upon its being located  within the court’s territory, and by  actually seizing it if liable to be carried  away; (6) authority to decide the  question involved, which is acquired by  the question being submitted to it by  the parties for decision.”  

68  

56. In Shiv Shakti Coop. Housing Society, Nagpur v.  

Swaraj Developers and others27, it has been expressed  

that the right of appeal is statutory and when conferred  

by a statute, it becomes a vested right.  Jurisdiction  

vested in an appellate court in a hierarchical system is to  

rectify the errors and that is why it is called “error  

jurisdiction” as has been held in Vikas Yadav v. State  

of Uttar Pradesh and others28.  A similar view has been  

expressed in Nahar Industrial Enterprises Limited v.  

Hong Kong and Shanghai Banking Corporation29.    

57. In Guru Nanak Foundation (supra), as noted  

earlier, the two-Judge Bench has distinguished the  

principle laid down in Garikapati Veeraya (supra) by  

stating that the door of this Court is not closed to the  

appellant.  In fact, as has been stated, the door is being  

held wide ajar for him to raise all contentions which one  

can raise in a proceeding in an originating summons.   

The aforesaid statement of law is not correct because the  

superior court is not expected in law to assume  

                                                           27 (2003) 6 SCC 659  28 (2016) 9 SCC 541  29 (2009) 8 SCC 646

69  

jurisdiction on the foundation that it is a higher court  

and further opining that all contentions are open.  The  

legislature, in its wisdom, has provided an appeal under  

Section 39 of the Act.  Solely because a superior court  

appoints the arbitrator or issues directions or has  

retained some control over the arbitrator by requiring  

him to file the award in this Court, it cannot be regarded  

as a court of first instance as that would go contrary to  

the definition of the term ‘court’ as used in the dictionary  

clause as well as in Section 31(4).  Simply put, the  

principle is not acceptable because this Court cannot  

curtail the right of a litigant to prefer an appeal by stating  

that the doors are open to this Court and to consider it  

as if it is an original court.  Original jurisdiction in this  

Court has to be vested in law.  Unless it is so vested and  

the Court assumes, the court really scuttles the forum  

that has been provided by the legislature to a litigant.  

That apart, as we see, the said principle is also contrary  

to what has been stated in Kumbha Mawji.  It is worthy  

to note that this Court may make a reference to an  

arbitrator on consent but to hold it as a legal principle

70  

that it can also entertain objections as the original court  

will invite a fundamental fallacy pertaining to  

jurisdiction.   

58. In Surjit Singh Atwal (supra), a three-Judge  

Bench had opined that applications under Section 8 and  

under Section 20, though clearly applications anterior to  

the reference, lead to a reference. Such applications are  

undoubtedly applications “in the matter of a reference”  

and may fall within the purview of Section 31(4) of the  

Act even though these applications are made before any  

reference has taken place.  The purpose of referring to  

the said authority is that the principle stated in Kumbha  

Mawji (supra) has been elaborated in Surjit Singh  

Atwal (supra). It is to be borne in mind that the Court  

that has jurisdiction to entertain the first application is  

determinative by the fact as to which Court has the  

jurisdiction and retains the jurisdiction.  In this regard,  

an example may be cited.  When arbitrator is not  

appointed under the Act and the matter is challenged  

before the High Court or, for that matter, the Supreme  

Court and, eventually, an arbitrator is appointed and

71  

some directions are issued, it will be inappropriate and  

inapposite to say that the superior court has the  

jurisdiction to deal with the objections filed under  

Sections 30 and 33 of the Act.  The jurisdiction of a Court  

conferred under a statute cannot be allowed to shift or  

become flexible because of a superior court’s interference  

in the matter in a different manner.  

59. Thus analysed, we arrive at the irresistible  

conclusion that the decisions rendered in  Saith and  

Skelton (supra) and Guru Nanak Foundation (supra)  

do not lay the correct position of law and, accordingly,  

they are overruled. Any other judgment that states the  

law on the basis of the said judgments also stands  

overruled.  

60. Having so stated, we would have directed the matter  

to be listed before the appropriate Bench.  But it is not  

necessary as we find the appellant-State has filed the  

objection before the Civil Court.  If the objection of the  

State is not there on record, liberty is granted to the  

State as well as the respondent to file their respective

72  

objections within thirty days from today.  The objections  

shall be decided on their own merits.  

61. Resultantly, the appeal stands disposed of in above  

terms.  There shall be no order as to costs.  

         .…………………………….CJI                                        [ Dipak Misra ]                                              ………………………………..J.         [ A.K. Sikri ]                                               …………………………………J.                                        [ A.M. Khanwilkar ]                                              …………………………………J.                                        [ Dr. D.Y. Chandrachud ]              …………………………………J.                                        [ Ashok Bhushan ]  New Delhi;  December 14, 2017