Lok Pal Singh, J
1. A.O. under Section 37 of the Arbitration and Conciliation Act, 1996, is directed against the judgment and order dated 13.09.2013, passed by learned
Addl. District Judge III, Dehradun, in Arbitration Case no. 18 of 2010, M/s Darshan Lal vs Union of India, whereby the petition filed by the appellant
under Section 34 of the Arbitration and Conciliation Act challenging the arbitral Award dated 10.01.2010, has been dismissed by the sole Arbitrator.
2) Briefly put, facts of the case are that a claim was submitted by claimant (appellant herein) before the Arbitrator asserting therein, that claimant is a
proprietorship firm. Respondent no. 2 B.S.N.L. invited a tender for the work in regard to A/R & M/O to T.E. building, Mission Compound,
Saharanpur during 2002-2003. The appellant submitted its tender to respondent no. 2. Being the lowest bidder, the contract was awarded in favour of
the appellant. During the continuance of work, the appellant requested respondent no. 2 to make certain payments vide letter dated 24.10.2003, but
despite that no payment has been made. Thereafter, dispute and differences arose between the parties.
3) The appellant preferred Arbitration Case no. 03 of 2008 before this Court for appointment of Arbitrator. This Court vide judgment and order dated
07.01.2009, disposed of the petition appointing Mr. R.R. Aggarwal, Distrtict Judge (Retd.) as a Single Member Arbitral Tribunal to resolve the dispute
between the parties.
4) Appellant filed his claim before the Arbitrator. Respondent no. 2 filed its objection against the claim. Having considered the claims and written
submissions made by the parties and material placed on record, the Arbitrator vide Award dated 10.01.2010, dismissed the claim petition in toto and
declined all the claims instituted by the claimant / appellant in the claim petition. Learned Arbitrator arrived at the conclusion that claimant is not
entitled to any amount.
5) Feeling aggrieved by Award dated 10.01.2010, the appellant preferred Arbitration Case no. 18 of 2010, under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) before the Principal Civil Court /District Judge, Dehradun. Learned District Judge
transferred the said arbitration case to the III Addl. District Judge, Dehradun. Addl. District Judge, Dehradun by its judgment and order dated
13.09.2013, does not find any merit in the petition filed under Section 34 of the Act and dismissed the same. Feeling aggrieved, the appellant has
preferred present appeal under Section 37 of the Act.
5) Heard learned counsel for the parties and perused the entire documents on record, including the order impugned.
6) Learned counsel for the appellant placed reliance upon the judgment of this court passed in Civil Revision No. 20 of 2014, M/s Rameshwar Prasad
Maneshwar Prasad vs Mohan Singh Panwar and others, decided vide judgment and order dated 25.08.2017, and would submit that the Principal Civil
Court is the District Judge as held by this Court and Addl. District Judge is not a Principal Civil Court. Thus, the impugned judgment passed by Addl.
District Judge, Dehradun is without jurisdiction as it is a case of lack of jurisdiction. He would further submit that specific objections were taken
before the Addl. District Judge in this regard, but the same were not considered and the impugned judgment has been passed on merit.
7) Before further discussion it is apt to reproduce the relevant paragraphs of the judgment and order dated 25.08.2017, passed by this Court in Civil
Revision No. 20 of 2014, M/s Rameshwar Prasad Maneshwar Prasad vs Mohan Singh Panwar and others. The same are excerpted hereunder for
reference:
8. Since, the Additional District Judge, was not having the jurisdiction to decide the execution application filed by the revisionist, therefore the
Additional District Judge has committed illegality in holding that execution 5 application is not maintainable. The findings recorded by the Additional
District Judge are perverse and illegal. In case, the court had no jurisdiction, the court has no authority to pass an order on merit. As soon as court
arrives to the conclusion that it has no jurisdiction, only course available to the court to return the case to the applicant/litigant to present it before the
court having jurisdiction.
9. In the present case, execution application was rightly filed by the revisionist before the District Judge, Pauri Garhwal. Therefore, it would incumbent
upon the Additional District Judge, Kotdwar to request the District Judge, Pauri Garhwal to withdraw the order of transfer of the case from the court
of Additional District Judge and hear the execution case being persona designata. Thus, Additional District Judge has committed illegality and
jurisdictional error in rejecting the execution application as not maintainable.
10. This Court is of the view that impugned order dated 27.05.2013 is illegal and without jurisdiction. The execution case no. 10 of 2011 had rightly
been filed by the revisionist before the District Judge, Pauri Garhwal which was wrongly transferred to the court of Additional District Judge,
Kotdwar. Since, the Additional District Judge was not having the jurisdiction to decide the revision on merits, thus it was incumbent upon the
Additional District Judge to request the District Judge, Pauri Garhwal to recall the order of transferring the case to the Additional District Judge,
Kotdwar. The District Judge as well as Additional District Judge have committed illegality respectively in transferring the case and decided by the
Additional District Judge.
11. In the present case, principal of maxim actus curiae neminem gravabit is applicable which means an act of the court shall prejudice no one. By
means of impugned order, the revisionist has been made to suffer. Thus, the impugned order is not sustainable in the eyes of law.â€
8) I find force in the contention of learned counsel for the appellant that Addl. District Judge is not the principal Civil Court and the objection under
Section 34 of the Act only could be decided by the District Judge. Thus, it is abundantly clear that the Principal Civil Court of original jurisdiction in a
District is the District Judge and not any other judicial officer. As such, the impugned judgment and order has been passed without jurisdiction by the
Addl. District Judge and without pondering over the objection of jurisdiction raised by the appellant. Accordingly, the impugned judgment and order is
liable to be quashed on this very lack of jurisdiction of the Addl. District Judge.
9) The impugned judgment and order dated 13.09.2013, passed by III Addl. District Judge, Dehradun is hereby quashed / set aside. However, it is
made clear that the impugned order has been set aside only on the legal ground of jurisdiction and this Court has not adverted on the findings recorded
by the court below as well as by the Arbitrator.
10) Before parting with the judgment, it would be appropriate to take into account the provisions contained in Commercial Courts Act, 2015. The
dispute between the parties is purely a commercial dispute and is covered under the provisions contained in clause (vi) of Section 2(1) of Commercial
Courts Act, 2015.
11) Definition of Court has been defined in Explanation (e) to Section 2 of the Commercial Courts Act. Section 3 stipulates constitution of Commercial
Courts. It says - the State Government after consultation with the concerned High Court, by notification, constitute such number of Commercial
Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those courts under this Act.
It also provides that with respect to the High Court having ordinary original civil jurisdiction, the State Government may, after consultation with the
concerned High Court, by notification, constitute Commercial Courts at District level. It further stipulates that with respect to a territory over which
the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less
than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts.
12) As per the provisions contained in Sub-section (2) of Section 15 of Commercial Courts Act, 2015, all suits and applications, including applications
under the Arbitration and Conciliation Act, relating to a commercial dispute of a specified value pending in any civil court in any district or area in
respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court. The Commercial Court at Dehradun has
already been constituted. Thus, instead of sending the matter to the Principal Judge, Civil Court, i.e., the District Judge, Dehradun, the matter is
remanded back to the Commercial Court at Dehradun with a direction to decide the objection filed by the appellant under Section 34 of the Act, at an
earliest possible, in accordance with law, after giving opportunity of hearing to the parties.
13) Lower court record be sent back.
