JUDGEMENT
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(1.)This matter has come before a three Judge Bench by an order of reference of a Division Bench of this Hon'ble Court dated 7th April, 2010.
The referral order reads thus:
"In this appeal, the question that arises for decision is which Court will have the jurisdiction to entertain and decide an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter for short 'the Act').
2. Mr. Bikas Ranjan Bhattacharya, learned senior counsel appearing for the appellants cited the judgments in the case of National Aluminium Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And Anr., 2004 1 SCC 540, Bharat Coking Coal Ltd. Vs. Annapurna Construction, 2008 6 SCC 732, Bharat Coking Coal Ltd. Vs. H.P. Biswas and Company, 2008 6 SCC 740 and Garhwal Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency, 2008 6 SCC 741 in support of his submission that it is only the Principal Civil Court, as defined in Section 2(e) of the Act, which can entertain and decide an application under Section 34 of the Act for setting aside the Award.
3. Mr. Pradip Ghosh, learned senior counsel appearing for the respondent on the other hand submitted that in the present case the Calcutta High Court exercising jurisdiction under Clause 12 of the Letters Patent had passed an interim order under Section 9 of the Act before commencement of the arbitration proceedings and by virtue of Section 42 of the Act, it is only the Calcutta High Court which will have jurisdiction to entertain and decide an application under Section 34 of the Act for setting aside the Award. In support of his submission, he relied upon judgment of this Court in the case of Jindal Vijaynagar Steel (JSW Steel Ltd.) Vs. Jindal Praxair Oxygen Co. Ltd., 2006 11 SCC 521.
4. We have perused the decisions cited by learned counsel for the parties, which are all decisions of two Judges Bench. In our opinion, the law has to be clarified beyond doubt as to which Court will have the jurisdiction to entertain and decide an application for setting aside the Award under Section 34 of the Act read with Section 2(e) of the Act and other provisions, including Section 42 of the Act. We, therefore, refer the matter to a larger Bench to decide this question of law.
5. Let the papers of this case be placed before Hon'ble the Chief Justice for constituting an appropriate Bench.
6. Till the disposal of the appeal by a larger Bench, the interim order dated 17.05.2007 shall continue to operate."
(2.)The facts necessary to decide this matter are as follows:
In 1995-96 an Item Rate Tender was duly executed and signed between the respondent Associated Contractors and the concerned Superintending Engineer for execution of the work of excavation and lining of Teesta- Jaldhaka Main Canal from Chainage 3 Kms. to 3.625 Kms. in Police Station: Mal, District: Jalpaiguri, West Bengal. Para 25 of the said Item Rate Tender and Contract contained an arbitration clause.
(3.)The respondent herein filed an application under Section 9 of the Arbitration Act, 1996 for interim orders in the High Court of Calcutta. A learned Single Judge of the High Court of Calcutta, after granting leave under Clause 12 of the Letters Patent, passed an ad-interim ex-parte injunction order. This order was continued from time to time until it was confirmed by an order dated 10th December, 1998. Meanwhile, in an application under Section 11 of the Arbitration Act, Justice B.P. Banerjee (retired), was appointed as an Arbitrator to adjudicate upon the disputes between the parties. A Recalling Application filed by the State was dismissed on 20th January, 2000.