CIMA No. 100/2013
Chief Engineer & Ors v. M/S K. K. Chibber
Pronounced on: August 21, 2021
In an appeal filed under section 37 of The Jammu and Kashmir Arbitration and Conciliation Act, 1997, the appellants had challenged the dismissal of the application filed under section 34 of the Act challenging the award of the sole Arbitrator and had assailed the judgment of Ld. District Judge, Kishtwar, stating that it was against Section 2(e) of the 1997 Act because the cause of action arises within the jurisdiction of the District Judge. In opposition of the argument, the respondent had supported the judgment by saying that parties have agreed to the seat of Arbitration being in Delhi and the law applicable being the Arbitration and Conciliation Act of 1996, therefore, award could not be challenged in the court of District Judge Kishtwar even if the work was executed within the jurisdiction of District Kishtwar.
Hon’ble High Court of J&K and Ladakh relied on 'State of Maharashtra V/s Atlanta Ltd. 2014(II) SCC 619', with reference to Section 42 of the Act and Indus Mobile Distribution Private Limited V. Datawind Innovations Private Limited and others,' (2017) 7 SCC 678 observed that District Judge, Kishtwar was right in dismissing the application filed under Section 34 of the J&K Arbitration and Conciliation Act, 1997, but he should have refrained from expressing any opinion on which Court will have jurisdiction. Observing that , it is only Section 42 of the Act which determines the jurisdiction of the court notwithstanding anything contrary to the Act, the Hon’ble Court relied on para 29 of the Atlanta case, reproduced under, and dismissed the appeal as not maintainable
“29. The first issue which needs to be examined is, whether a challenge to an arbitration award (or arbitral agreement, or arbitral proceeding), wherein jurisdiction lies with more than one court, can be permitted to proceed simultaneously in two different courts. For the above determination, it is necessary to make a reference to Section 42 of the Arbitration Act. The aforesaid provision accordingly is being extracted hereunder: "42. Jurisdiction.-Notwithstanding anything contained elsewhere in this part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court."
A perusal of Section 42 of the Arbitration Act reveals a clear acknowledgment by the legislature, that the jurisdiction for raising a challenge to the same arbitration agreement, arbitral proceeding or arbitral award, could most definitely arise in more than one court simultaneously. To remedy such a situation Section 42 of the Arbitration Act mandates, that the court wherein the first application arising out of such a challenge is filed, shall also have the jurisdiction to adjudicate upon the dispute(s), which are filed later in point of time. The above legislative intent must also be understood as mandating, that disputes arising out of the same arbitration agreement, arbitral proceeding or arbitral award, would not be adjudicated upon by more than one court, even though jurisdiction to raise such disputes may legitimately lie before two or more courts."