PHOULAD Vs. BHARATH SANCHAR NIGAM LTD

JUDGEMENT

(1.) Question urged for a decision in this proceeding is whether a proceeding instituted under the Arbitration and Conciliation Act, 1996 (for short, "the Act") in a court having no jurisdiction to entertain it could be withdrawn by the District Court in exercise of the power under S. 24 of the Code of Civil Procedure (for short, "the Code") and try the proceedings by itself or make over the same to another court having jurisdiction to try it

(2.) The Arbitrator appointed under provisions of the Act passed an award in favour of petitioner. Respondent, in challenge of that award filed O.P. No. 9 of 2005 in the court of learned Sub Judge, Sulthan Bathery under S. 34(2)(iii) of the Act on 1.10.2005. Petitioner contended that the said court has not jurisdiction to entertain a petition under S. 34 of the Act. O.P. No. 9 of 2005 remained on the file of learned Sub Judge for quite some time. While so, respondent filed Ext.P4 (O.P(T) No. 43 of 2011) before learned District Judge, Wayanad, at Kalpetta under S. 24 of the Code requesting to withdraw O.P. No. 9 of 2005 to that court. That petition was resisted by the petitioner contending that learned District Judge has no jurisdiction to pass an order in the matter under S. 24 of the Code and at any rate, it is after six years that the request for transfer is made. It was contended that the only course open to the learned Sub Judge was to return the Original Petition for presentation in the court having jurisdiction to entertain it. Learned District Judge by Ext.P6, order allowed O.P. No. 43 of 2011 and withdrew the case to the District Court. The said order is under challenge in this proceeding.

(3.) Learned counsel for petitioner has contended that learned Sub Judge, Sulthan Bathery having no jurisdiction to entertain a petition under S. 34 of the Act, proceeding before the learned Sub Judge was without jurisdiction and hence not maintainable. In such a situation learned District Judge could not have exercised power under S. 24 of the Code to withdraw the proceedings to the District Court. It is contended that the said power at any rate could have been exercised only by the High Court. It is also contended by learned counsel that sub-s.(5) of S. 24 has no application since that provision relates to transfer of a proceeding from a court having no jurisdiction to another court and does not pertain to withdrawal of the case to the District Court itself. Learned counsel has placed reliance on the decisions in Durgesh Slianna v. Jayasree, 2008 9 SCC 648, Seema v. Jayagopal, 2010 3 KerLT 878and Neha Arun Jugadar v. Palak Diwan Ji, 2011 1 KerLT 770.