Court approached in the early stages of arbitration will prevail in all other subsequent proceedings
High Court of Delhi
National Highway Authority of India v. Hindustan Steelworks Construction Limited
19.10.2016
Arbitration
Once the parties have approached certain court for relief under Arbitration Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings
Present application filed by National Highways Authority of India (NHAI) seeking to explain delay of 296 days in filing Petition under Section 34 of Arbitration & Conciliation Act, 1996 (the Act) to challenge Award dated 24th February, 2015 of Arbitral Tribunal (AT) in disputes between NHAI and Respondent, Hindustan Steelworks Construction Ltd + SIPL (HSCL) arising out of a contract dated 18th July, 2005 for construction of a four lane highway.
It is stated by NHAI that it received a copy of the Award dated 24th February, 2015 only on 27th February, 2015 by courier and that was the date from which the period of limitation for the purposes of Section 34 (3) of the Act commenced. Even NHAI admits that the 90 days period in terms of Section 34(3) of the Act expired on 26th May, 2015. Referring to Section 14(2) of the Limitation Act, 1963, it is submitted that, time spent in the District Court at Yavatmal should be excluded for purposes of computing limitation and if so computed there would be no delay in filing the present petition.
Section 14 of Limitation Act, 1963 can be invoked only where NHAI can show that it was prosecuting matter in a good faith in a Court ―which lacked jurisdiction to entertain it. NHAI was conscious, in present case, that it is Delhi High Court, which has jurisdiction to entertain petition arising under the Act as a result of arbitration clause between the parties. It is for this reason NHAI opposed jurisdiction of Calcutta High Court to entertain the Respondent’s application under Section 9 of the Act. Orders dismissing that petition were passed by the Calcutta High Court in the presence of NHAI permitting the Respondent to approach Court of appropriate jurisdiction, which was this Court.
NHAI files numerous petitions on a constant basis in this Court under Section 34 of the Act challenging Awards passed by various ATs in disputes involving NHAI. This is irrespective of place in India where the project is implemented. It cannot be a mere co-incidence that on the date i.e., 29th June, 2015 the limitation for filing the petition under Section 34(3) of the Act, even according to the date of receipt of the Award, as claimed by NHAI expired. Clearly NHAI was not ready with the petition on that date. It cannot also be a co-incidence that summer vacations of the Yavatmal District Court was still continuing as of that date and went on till 7th June, 2015. NHAI could not be said to have acted bona fide in approaching District Court at Yavatmal under Section 34 of the Act.
Once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
It is stated by NHAI that it received a copy of the Award dated 24th February, 2015 only on 27th February, 2015 by courier and that was the date from which the period of limitation for the purposes of Section 34 (3) of the Act commenced. Even NHAI admits that the 90 days period in terms of Section 34(3) of the Act expired on 26th May, 2015. Referring to Section 14(2) of the Limitation Act, 1963, it is submitted that, time spent in the District Court at Yavatmal should be excluded for purposes of computing limitation and if so computed there would be no delay in filing the present petition.
Section 14 of Limitation Act, 1963 can be invoked only where NHAI can show that it was prosecuting matter in a good faith in a Court ―which lacked jurisdiction to entertain it. NHAI was conscious, in present case, that it is Delhi High Court, which has jurisdiction to entertain petition arising under the Act as a result of arbitration clause between the parties. It is for this reason NHAI opposed jurisdiction of Calcutta High Court to entertain the Respondent’s application under Section 9 of the Act. Orders dismissing that petition were passed by the Calcutta High Court in the presence of NHAI permitting the Respondent to approach Court of appropriate jurisdiction, which was this Court.
NHAI files numerous petitions on a constant basis in this Court under Section 34 of the Act challenging Awards passed by various ATs in disputes involving NHAI. This is irrespective of place in India where the project is implemented. It cannot be a mere co-incidence that on the date i.e., 29th June, 2015 the limitation for filing the petition under Section 34(3) of the Act, even according to the date of receipt of the Award, as claimed by NHAI expired. Clearly NHAI was not ready with the petition on that date. It cannot also be a co-incidence that summer vacations of the Yavatmal District Court was still continuing as of that date and went on till 7th June, 2015. NHAI could not be said to have acted bona fide in approaching District Court at Yavatmal under Section 34 of the Act.
Once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.
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