AI Structured Summary
Not yet generated for this judgment
Judgment
P.K. Misra, J.—Heard learned counsel for the petitioner and the learned counsels for respondents 1 and 2 to 6. In the present writ petition, the petitioner has challenged the Circular dated 7.11.2001 issued by the Registrar-General of the High Court, Madras. Relevant portion of the Circular is to the following effect:-
"It is brought to the notice of the High Court through letter dated 29.6.2001, addressed by the Secretary, Advocates'' Association, Gudiyatham, Vellore District, that the Civil Judge (Senior Division) Gudiyatham, did not entertain a suit/petition filed u/s 9 of the Arbitration and Conciliation Act, 1996 on the ground of want of jurisdiction. In this regard, it is clarified to all the subordinate courts in the State of Tamil Nadu that Chapter III of the Arbitration and Conciliation Act, 1996 is different from Chapter II and that Section 9 of the Act invests the courts having pecuniary and territorial jurisdiction to entertain suits for the grant of interim relief in contemplation of the Arbitration proceedings or pending the said proceedings. As such, there is no bar to entertain the suits/petitions u/s 9 of the Arbitration and Conciliation Act, 1996 by the respective courts having the pecuniary and territorial jurisdiction.
All the Principal District Judges, The Principal Judge, City Civil Court, Chennai and all the Principal District Judges are required to communicate this circular to all the Subordinate Courts under their control, for strict compliance, forthwith."
Learned counsel for the petitioner has submitted that under the Arbitration and Conciliation Act, 1996 (hereinafter called "the Act") jurisdiction is conferred u/s 9 of the Act to pass interim orders. Similarly u/s 34 of the Act, the Court is authorised to entertain application for setting aside the award. u/s 36, the Court is authorised to enforce the award as if it were a decree under the Code of Civil Procedure. It is the contention of learned counsel for the petitioner that under Sections 9, 34 and 36 of the Act, the expression "Court" must be understood in the manner in which such expression has been defined u/s 2(e) of the Act which is extracted hereunder:-
"2.(e) "court" means the principal civil court of original jurisdiction in a district, and includes the High Court, in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-mater of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal civil court, or any court of small causes;"
Therefore, it is contended that the expression "court" having been defined to mean a Principal Civil Court of Original jurisdiction in a District and it having been specifically indicated that the expression "court" does not include any Civil Court of a grade inferior to such Principal Civil court, or any Court of small causes, there is no question of vesting any such jurisdiction on the Subordinate Courts as has been done as per the Circular issued by the Registrar-General of the High Court.
Learned Counsel for the petitioner has also invited my attention to the definition of the expression "district" as contained in the Code of Civil Procedure. District, according to Section 2(4) of the CPC "means the local limits of the jurisdiction of a Principal Civil Court of original jurisdiction, (hereinafter called a "District Court")". It is also brought to my notice that under the Tamil Nadu Civil Courts Act, 1873, a Subordinate Judge is constituted as inferior to that of the District Judge which is the Principal Civil Court of ordinary original jurisdiction in a District. Thus in view of the specific provisions contained in Section 2(e) of the Act as well as the provisions contained in the CPC and Tamil Nadu Civil Courts Act, there cannot be any doubt that expression "Court" as contained in Sections 9, 34 and 36 of the Act, which must necessarily have the same meaning as defined in Section 2(e) of the Act, is the Principal Civil Court of ordinary original jurisdiction in a District that is to say the District Court.
The aforesaid position which is apparent from mere reading of the provisions contained is also highlighted by similar views expressed by the High Courts of Kerala and Karnataka. Moreover, no other decision taking a contrary view has been brought to my notice.
In Sulekha v. Union Of India (2000 (I) K.L.T., 691) Rules had been framed by the High Court specifying the Principal Subordinate Judge as the authority to deal with the matters under Sections 9, 34 and 36 of the Act. The Rule was to the following effect :-
"(c) ''Court'' under S.2(e) of the Act for the purpose of deciding any question, excepting appointment of arbitrators under S.11 of the Act, shall be the Principal Sub Court having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject matter of a suit."
Such a rule was struck down by a learned single Judge of the Kerala High Court with the following observation:-
"Therefore, it is clear that the Court is the Principal Civil Court of original jurisdiction in a District. Rule specifically says that it "does not include any civil court of a grade inferior to such Principal Civil Court..." Principal Civil Court in a district is the District Court. This is clear from the definition given in S.2(4) of the Code of Civil Procedure. The District Court has got original jurisdiction in certain types of civil matters. There can be no dispute for the proposition that Principal Civil Court of original jurisdiction in a District is the District Court. Therefore, the ''Court'' for the purpose of the Act is only the District Court being the Principal Civil Court of the District an not the Subordinate Court which is inferior in statute to the District Court. Since the Court of inferior character of Principal Civil Court cannot be treated as a ''Court'' in view of the specific exclusion under S.2(e) of the Act, R.2(c) of the Rules is inconsistent with the provisions of the Act and invalid. Hence it is declared that R.2(c) of the Rules is invalid and in view of S.2(e) of the Act the District Court -Principal Civil Court in the District - will continue to exercise jurisdiction until rules are amended otherwise on all matters which are to be decided by a ''Court'' under the Arbitration and Conciliation Act, 1996 except the appointment of an Arbitrator under S. 11 of the said Act. Therefore, I am of the opinion that fourth respondent District Court has jurisdiction to decide the Arbitration O.P. and the Arbitration O.P. has to be decided according to law by that Court itself without transferring the same to the Sub Court."
In the decision in ICDS Ltd. v. Mangala Builders Pvt. Ltd. AIR 2001 Karn 364, the question was relating to the jurisdiction of the Court to deal with the matter u/s 36 of the Act. While considering that question, the High Court of Karnataka has held that the Court which can entertain a suit with respect to the subject matter of arbitration dispute alone can exercise the power u/s 36 of the Act i.e. the Principal Civil Court of ordinary original jurisdiction namely, the District Judge and not the Subordinate Judge.
In I.T.I. Ltd., Naini, Allahabad Vs. District Judge, Allahabad and others, the question arose as to whether the Additional District Judge is "court" within the meaning of Section 2(e) of the Arbitration and Conciliation Act, 1996 and if not, can the District Judge transfer the application moved for setting aside the arbitration award u/s 34 of the said Act. While answering the query in the negative it was observed :
"... 5. Unless the context otherwise requires, the term "Court", as defined in Section 2(e) of the Act, "means the principal Civil Court of Original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the question forming the subject matter of arbitration if the same had been the subject matter of a suit but does not include any civil Court of a grade inferior to such principal civil Court or any Court of Small Causes". The term "Court" as elucidated in Section 2(c) of the Arbitration Act, 1940, meant "a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit". A Small Causes Court was expressly excluded, except for the purpose of Section 21, from the purview of the term "Court" as defined in the said Act. By using the words "means", "includes" and "does not include" in Section 2(e) of the new Arbitration Act, the parliament has exhaustively explained the meaning of the term "Court" in that the word "means" is a term of restriction, while the word "includes" is a term of enlargement and when both the words "means" and "includes" are used together to define a thing, the intendment of the legislature is to supply restricted meaning to the term (See Smt. Lachcho Vs. Dwari Mal, M/s. Mahalakshmi Oil Mills Vs. State of Andhra Pradesh, P. Kasilingam and others Vs. P.S.G. College of Technology and others, . The expression "but does not include any civil court of a grade inferior to such principal civil Court, or any Court of Small Causes" used in Section 2(e) of the Act, further restricts the meaning of the term "Court" defined therein. The statement of objects and reasons as given in the Arbitration and Conciliation Bill, 1995 would point to the fact that one of the main objects, sought to be achieved by the Bill was "to minimize the supervisory role of Courts in arbitral process". This object might be overreached by giving an amplified meaning to the term "Court". Section 3(17) of the General Clauses Act, 1897 defines the term "District Judge" as "the Judge of a principal civil Court of original jurisdiction". The High Court in the exercise of its ordinary original jurisdiction is not included in the term "District Judge" as defined in Section 3(17) of the General Clauses Act, 1897 albeit the term "Court" used in the Act includes the High Court in exercise of its original jurisdiction.
It admits of no manner of doubt and rather, it is abundantly clear from Section 3(37) of the General Clauses Act, 1897 as well that the "Court of District Judge" and the expression "the principal Civil Court of original jurisdiction in a district" are synonym. The Court of Civil Judge may also be a Civil Court of original jurisdiction but it would not be "the principal Civil Court of original jurisdiction in a district". The Court of an Addl. District Judge is no doubt, a class of Civil Court as visualised by Section 3 of the Bengal, Agra and Assam Civil Court Act, 1887 and it exercises the same power as the District Judge in relation to the functions assigned to it by the District Judge u/s 8(2) of the aforesaid Act but that by itself, would not invest it with the trapping of the principal Civil Court of original jurisdiction in a district. Section 8 of the aforestated Act reads as below.
"8. Additional Judges (1) when the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, State Government may, having consulted High Court, appoint such additional Judges as may be requisite.
(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions they shall exercise the same power as the District Judge"
The word ''principal'' means; the first in importance; chief, main; and the word "grade" used in Section 2(e) of the Act is suggestive of status and importance and it does not refer to a class or particular class inasmuch as the grade of a Court depends on the pecuniary or other limitations of the jurisdiction of the particular Court."
Even though the question as to whether the Court of District Judge would include the Court of Additional District Judge for the purpose of Arbitration and Conciliation Act is not necessary to be decided in the present case, the ratio of the aforesaid decision of the Allahabad High Court is squarely applicable at least to exclude the Court of Subordinate Judge from the purview of the meaning of "Court" for the purpose of Sections 9, 34 or 36 of the said Act.
In AIR 2000 SC 1603 (Tamil Nadu Electricity Board v. Sumathi and others), which arose in a different context, it was observed :
" 8. This Court in P. Anand Gajapathi Raju v. P.V.G. Raju (died), Civil Appeal No. 525 of 1993 decided on 28-3-2000 (reported in P. Anand Gajapathi Raju and Others Vs. P.V.G. Raju (Died) and Others, has held that there is no provision in the new Act for referring the matter to arbitrator by intervention of the Court. However, if during the pendency of the proceedings in the Court parties have entered into an arbitration agreement, then they have to proceed in accordance with the provisions of the new Act and when award is made it is a decree and it cannot be filed in the High Court and it has to be filed in the Court as defined in clause (e) of Section 2 of the new Act for its enforcement as a decree u/s 36 of the new Act. If there is challenge to the award recourse has to be u/s 34 of the new Act."
There cannot be any doubt that the expression that is used in Sections 9 and 36 or for that matter in Section 34 must receive similar interpretation and must have the same meaning. In the Circular issued by the Registrar-General of the High Court it has been noted that there is a difference between Chapter III and II of the Act. Chapter II relates to the power of the Court to grant interim order before, during or after arbitral proceedings. Chapter III relates to appointment of arbitrators. There cannot be any dispute that the "authority" indicated in Chapter 111 is different from the "Court" indicated in Chapter II or any other Chapter. Power to appoint an arbitrator as envisaged u/s 11 of the Act, is not to be confused with the powers conferred on Sections 9 or 34 and 36 of the Act.
In the above context, it has to be remembered under the Arbitration Act, 1940, the expression ''Court'' had been defined differently under the definition clause 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 u/s 21 include a Small Cause Court. The definition ''Court'' under the Arbitration and Conciliation Act, 1996 indicates that the ''Court'' means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes. A comparison of the two definitions makes it clear that in the new Act not only there is reference to "Principal Civil Court of original jurisdiction in a district" but also there is an exclusionary clause which excludes any civil Court of a grade inferior to such Principal Civil Court. Whatever doubt could have been there, has been dispelled by a specific clause to the effect "it does not include any Civil Court of a grade inferior to Principal Civil court."
It is also to be remembered that u/s 3(b) of the Hindu Marriage Act, 1955, the expression "district court" has been defined as follows:-
"3 (b). "district court" mean''s, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;"
It is to be noted that under this definition such expression "district court" includes any other Civil Court which may be specified by the State Government. Only by virtue of such an authority, separate notification has been issued authorising the Subordinate Judge to deal with the matters. Such authorisation under the Hindu Marriage Act, by virtue of the provisions containing such Act cannot be extended for the purpose of deciding the matter under the Arbitration and Conciliation Act, 1996 in the absence of any statutory provision. Similarly, u/s 2(11) of the Companies Act, the word "District Court" has been defined to mean Principal Civil Court of ordinary original jurisdiction in a District. It has never been doubted that such expression does not include the Subordinate Judge. Similarly reference to the provisions contained in Tamil Nadu Civil Courts Act 1873, particularly provisions contained in Sections 12 and 13 would make it clear that the jurisdiction of a District Judge extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature.
Section 82 of the Act authorises the High Court to make rules consistent with the Act as to all proceedings before the Court under the Act. It goes without saying that any rule inconsistent with the provisions of the Act is ultra vires and without jurisdiction. In the present case, no rule can be framed which would be inconsistent with the provisions of the Act. Such basic principle is applicable with more vigour to administrative instructions and Circulars. There cannot be two opinion about the fact if any administrative instruction or circular or clarification is contrary to the provisions of the Act, such administrative instruction or circular or clarification is void ab initio. It is indeed surprising that in the face of such specific definition in the Act a circular or clarification has been issued by the Registrar General of the High Court envisaging and laying down a procedure contrary to the clear provisions of the Act. For the aforesaid reasons, the writ petition is allowed and the impugned circular is quashed. There will be no order as to costs.