1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 3788 of 2015 1. Mira Sinha, wife of late Amrendra Kumar 2. Jaydeep Kumar, son of late Amrendra Kumar 3. Avhinav Amresh, son of late Amrendra Kumar 1, 2 and 3 resides at Janki Niwas, Jail Road, Dumka, P.O., P.S. & District Dumka 4. Jayshree Vrma, daughter of late Amrendra Kumar, wife of Sri Ajay Verma, resident of village Ranibagan, Bariatu Housing Colony, P.O. & P.S. Bariatu, District Ranchi 5. Rajshree Prasad, daughter of late Amrendra Kumar, wife of Sri Rajesh Prasad, resident of A 14, Kasturi Cottage, Road No. 1, Magistrate Colony, Ashiyana, Patna, P.O. & P.S. Shastrinagar, District Patna 6. Swati Mallik, daughter of late Amrendra Kumar, wife of Sanjeev Kumar Mallik, resident of Rungta Mines Limited, Rungta House, Sadar Bazar, Chaibasa, P.O., P.S. & District Chaibasa... Petitioners Versus 1. The State of Jharkhand 2. The Collector cum Deputy Commissioner, Dumka, P.O., P.S. & District Dumka 3. The Chief Engineer, Minor Irrigation Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi 4. The Superintending Engineer, Minor Irrigation Circle, Dumka, P.O., P.S. & District Dumka 5. The Executive Engineer, Minor Irrigation Division, Dumka, P.O., P.S. & District Dumka 6. The Secretary, Water Resources Development, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioners For the State : Mr. Sudarshan Srivastava, Advocate Mr. Sunil Singh, Advocate : Mr. Dhananjay Kr. Dubey, Sr. S.C. I 06/18.09.2015 The petitioners are legal heirs and successors of late Amrendra Kumar who was a qualified Engineer and Contractor. Late Amrendra Kumar was awarded work for construction of Neem Bani No. 1 Scheme (Earthen Dam) within Raneshwar Block, Dumka. After the negotiation the work was awarded @ 9%
2 higher to the estimated cost and accordingly, agreement no. 37 F2 was entered between the parties. Late Amrendra Kumar started work on 16.02.1986 which was to be completed by 15.08.1986 however, certain additional work was executed by the contractor and subsequently, a dispute for payment of Rs. 2,39,571.36 arose. Late Amrendra Kumar made representation to the authorities and the Deputy Secretary, Minor Irrigation, Bihar directed the Superintending Engineer to furnish response to the representation of late Amrendra Kumar. Several communications were exchanged, in the meantime, between late Amrendra Kumar and different authorities of the Government of Bihar for payment of dues with interest @ 16% per annum which was calculated at Rs. 23,56,386/ till 16.01.2002. Earlier, notice dated 29.03.1988 under Section 80 C.P.C. was issued to the Deputy Commissioner, Dumka and other authorities. Finally, late Amrendra Kumar filed Arbitration Suit No. 27 of 2002 in the Court of Sub Judge II, Dumka however, the suit was dismissed vide order dated 16.09.2008 holding that the trial court had no power to appoint Arbitrator under the Arbitration and Conciliation Act, 1996. Thereafter, late Amrendra Kumar approached this Court in Arbitration Case No. 4 of 2009 in which vide order dated 17.02.2010, Superintending Engineer was appointed as Arbitrator. The learned Arbitrator vide award dated 22.12.2010 rejected the claim, against which an application under Section 34 of the Arbitration and Conciliation Act, 1996 was filed for setting aside award dated 22.12.2010. The said application was registered as Title (Arbitration) Suit No. 28 of 2011. During the pendency of the said suit late Amrendra Kumar died and thereafter, the present petitioners were substituted in his place. The respondents defendants appeared and filed written statement resisting the suit on several grounds. Vide order dated 13.11.2014, the trial court allowed application dated 11.04.2014
3 filed by the defendants under Order VII Rule 11 read with Section 151 C.P.C. holding that the application was filed before the wrong forum and it should have been filed before the Court of Principal District Judge or the High Court. The trial court ordered return of the plaint to the plaintiff for presentation before the competent court as defined under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996. Aggrieved, the present writ petition has been filed. 2. Mr. Sudarshan Srivastava, the learned counsel for the petitioners submits that the objection under Section 34 of the Arbitration and Conciliation Act, 1996 registered as Title (Arbitration) Suit No. 28 of 2011 has to be tried by the Principal Civil Court of original jurisdiction, which is the Court of Senior Civil Judge in the district. It is further submitted that the jurisdiction of the Senior Civil Judge to entertain objection under Section 34 of the 1996 Act is not barred by any law and therefore, rejection of Title (Arbitration) Suit No. 28 of 2011 is not sustainable in law. 3. Mr. Dhananjay Kumar Dubey, the learned Sr. S.C. I referring to the judgment in State of Maharashtra Vs. Atlanta Limited (2014) 11 SCC 619 submits that application under Section 34 of the Arbitration and Conciliation Act, 1996 can be instituted only before the Principal Civil Court of original jurisdiction which is the Court of Principal District Judge. 4. Order VII Rule 11(d) C.P.C. reads as under: where the suit appears from the statement in the plaint to be barred by any law. 5. The question whether a suit is barred by any law or not would depend upon the facts of the case. An application for rejection of the plaint can be allowed if the averments in the plaint taken to be correct as a whole disclose the suit to be barred by any
4 law. Thus, for deciding the said question, the averments made in the plaint only are relevant. In Kamala & Ors. Vs. K.t. Eshwara Sa and Ors. (2008) 12 SCC 661, the Hon'ble Supreme Court has held as under: 21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. 6. In Hardesh Ores (P) Ltd. Vs. Hede & Company (2007) 5 SCC 614, the Hon'ble Supreme Court held that, whether the agreement required registration or not is not a question which can be gone into in an application under Order VII Rule 11 C.P.C. It has been held that it is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. 7. In the background of the law laid down by the Hon'ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when the suit is barred by any law. The expression law included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon'ble Supreme Court. The controversy in State of Maharashtra Vs. Atlanta Limited (supra) was with respect to choice of forum between the High Court exercising ordinary original civil jurisdiction and the Principal Civil Court of original jurisdiction
5 in a district. In State of Maharashtra Vs. Atlanta Limited, the arbitration award in favour of Atlanta Limited was challenged by the State of Maharashtra under Section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Thane and on the same day Atlanta Limited filed arbitration petition before the High Court of Judicature at Bombay for setting aside some of the directions issued by the Arbitral Tribunal. Thereafter, the Atlanta Limited moved an application under Section 24 C.P.C. seeking transfer of the miscellaneous applications filed by the State of Maharashtra to the High Court on its original side., for being heard along with Arbitration Petition No. 1158 of 2012. The said application was allowed by the High Court. The decision of the High Court transferring the miscellaneous applications filed before the District Court, Thane to the High Court of Judicature at Bombay was challenged before the Hon'ble Supreme Court. In the aforesaid factual matrix the Hon'ble Supreme Court held that, based on the legislative intent emerging from Section 2(1)(e) of the 1996 Act challenge under Section 34 was to be adjudicated upon by the High Court of Bombay alone. The Hon'ble Supreme Court noticed that both, the High Courts as also the District Judge, Thane are within the definition of Court under Section 2(1)(e) and both the Courts had jurisdiction in respect of the subject matter. The Hon'ble Supreme Court held that within the area of jurisdiction of Principal District Judge, Greater Mumbai, only the High Court of Bombay was exclusively competent Court in its ordinary original civil jurisdiction to adjudicate upon the matter. Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 reads as under: 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 the arbitration if the same had been the
6 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. 8. The Bengal, Agra and Assam Civil Courts Act, 1887 regulates the hierarchy of Courts in the State of Jharkhand. Under the 1887 Act, the Court of Sub ordinate Judge that is, the Civil Judge (Senior Division) is construed to be the Principal Civil Court of original jurisdiction with unlimited pecuniary jurisdiction. The District Judge has no original jurisdiction to decide the suit except, a suit under the Indian Succession Act. In the Title (Arbitration) Suit No. 28 of 2011, the respondent State appeared and filed written statement raising a question of lack of jurisdiction of the Court of Senior Civil Judge I. Subsequently, the respondent State preferred application under Order VII Rule 11 C.P.C. contending that Title (Arbitration) Suit No. 28 of 2011 is not a suit under Section 34 and, as such, the plaintiff was required to pay ad voleram court fee. The trial judge came to a conclusion that Title (Arbitration) Suit No. 28 of 2011 is not a Money Suit and thus, the plaintiff was not required to pay ad voleram court fee. Section 7 of Sonthal Parganas Justice Regulation, 1893 mentions three grades of Courts which includes, the Court of Additional Judge and the Court of Sub ordinate Judge. Section 9 of the 1893 Regulation provides that their jurisdiction would extend to suits of which the value exceeds Rs.5,000/ and which are not excluded by the Santhal Parganas Settlement Regulation or by any other law for the time being in force. The trial court though noticed provisions under the Santhal Parganas Settlement Regulation, the Code of Civil Procedure and the Arbitration and Conciliation Act, 1996, has however, erroneously held that the Civil Judge (Senior Division) would have no jurisdiction to try Title (Arbitration) Suit No. 28 of 2011. 9. In the present case, admittedly, there is no controversy
7 whether Principal Civil Court of original jurisdiction in a district would have jurisdiction over the subject matter or the High Court of Jharkhand. It is well settled that, a judicial decision is an authority for what it actually decides and not for what can be read into it. In Ambica Quarry Works Vs. State of Gujarat (1987) 1 SCC 213, it has been held that a decision must be understood in the background of the facts of that case. The Hon'ble Supreme Court has held thus, 18....The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it... 10. I find that neither Sonthal Parganas Justice Regulation, 1893 nor the Code of Civil Procedure bars the jurisdiction of Civil Judge (Senior Division) in a district to entertain application under Section 34 of the Arbitration and Conciliation Act, 1996. Under the Bengal, Agra and Assam Civil Courts Act, 1887, the Court of Civil Judge (Senior Division) is the Principal Civil Court of original jurisdiction in the district. Reliance placed on the State of Maharashtra case is patently erroneous. The impugned order dated 13.11.2014 suffers from serious infirmity in law and accordingly, it is set aside. The Title (Arbitration) Suit No. 28 of 2011 is restored to its original file. The trial court shall proceed in the matter, in accordance with law. 11. The writ petition stands allowed. Manish/A.F.R. (Shree Chandrashekhar, J.)