M/S. PANDEY & CO. BUILDERS PVT. LTD. versus STATE OF BIHAR AND ANR.

Citation: [2006] SUPP. 8 S.C.R. 997 · Decided: 10-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

.... 
MIS. PANDEY &CO. BUILDERS PVT. LTD. 
v. 
STA TE OF BIHAR AND ANR. 
NOVEMBER I 0, 2006 
[S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
Arbitration: 
Arbitration and Conciliation Act, 1996: 
Section 37-Appealable order-"Court"-Definition of-Arbitration 
·clause-Execution of canal repair work-Contract for-Due to disputes and 
differences contractor invoked the arbitration clause-Superintending 
Engineer, having entered into reference, did not proceed with reference for 
A 
B 
c 
a long time-Irrigation Department ordered conclusion of arbitration D 
proceedings within three months-A former Judge of the High Court was 
nominated by the Chief Justice as an arbitrator-But, in the meanwhile, the 
Superintending Engineer passed an award-The High Court judge held that 
he had no jurisdiction to proceed with the matter-Contractor filed an 
appeal-High Court dismissed the appeal holding that it had no jurisdiction 
to hear the appeal as in terms of Section 37(2), the appeal lay before the E 
District Court in view of the provisions of the Bengal, Agra and Assam Civil 
Courts Act-Correctness of-Held: An appeal in terms of S. 37(2) is a 
statutory appeal-" Court" in S.2(e) of the 1996 Act is the Principal Civil 
Court of original jurisdiction-If the High Court does not exercise the original 
civil jurisdiction, it would not be a "court" within the meaning of S.2(e)-
F 
hence, High Court rightly held that it had no jurisdiction to hear the appeal 
under S.37(2)-Bengal, Agra and Assam Civil Courts Act, 1857. 
Words & Phrases: 
"Court"-meaning of-Jn the context of S. 2(e) of the Arbitration and G 
Cone iliation Act, I 996. 
The appellant undertook a contract for execution of canal repair work. 
The said contract contained an arbitration clause. Disputes and differences 
having arisen between the parties, the appellant invoked the said arbitration 
997 
II 
998 
SUPREME COURT REPORTS (2006] SUPP. 8 S.C.R. 
A clause. The Superintending Engineer, who was the named arbitrator, entered 
into reference but he retired and his successor did not proceed with the 
reference for a long time. The Irrigation Department of the respondent-State 
asked the Superintending Engineer to conclude the arbitration proceedings 
within three months. The appellant filed an objection questioning the 
B jurisdiction of the said arbitrator on the premise that his nomination had 
already been terminated. A former Judge of the High Court was appointed as 
an arbitrator but the Superintending Engineer passed an award. Therefore, 
the High Court Judge held that he had no jurisdiction to proceed with the 
matter. 
C 
The appellant filed an appeal before the High Court under Section 37 
D 
of the Arbitration and Conciliation Act, 1996. The High court dismissed the 
appeal holding that it had no jurisdiction to hear the appeal as in terms of 
Section 37(2) of the 19~6 act, the appeal lay before the District Court in view 
of the provisions of the Bengal, Agra and Assam Civil Courts Act. 1957. Hence 
the appeal. 
Dismissing the appeal, the Court. 
HELD: 1. The High Court does not exercise any original civil 
jurisdiction. The definition of"court" in Section 2(l)(e) of the Arbitration 
and Conciliation Act, 1996 mea~~ the Principal Civil Court of original 
E jurisdiction in a district and includes the High Court which exercises the 
original civil jurisdiction. If the High Court does not exercise the original 
civil jurisdiction, it would not be a "court" within the meaning of the said 
provision. Constitution of the courts vis-a-vis the hierarchy thereof is governed 
by the Bengal, Agra and Assam Civil Courts Act, 1857. [1003-D, El 
F 
2. The Rules framed by the High Court in exercise of its jurisdiction 
under Article 225 of the Constitution of India also do not authorize it to 
entertain a suit as a court of original jurisdiction. [1004-A, B) 
3. An appeal in terms of Section 37(2) of the 1996 Act is a statutory 
G appeal. It may be true that Section 37(2) of the 1996 Act debars a second 
appeal from an appellate order under Section 37(1) and (2) thereof but having 
regard to Section 5 of the 1996 Act, the provisions for second appeal may be 
held to be superfluous. [1004-F) 
O.P. Malhotra: "The law and Practice of Arbitration and Conciliation", 
H P. 12 70, referred to. 
' 
,....
\ 
PANDEY &CO. BUILDERS.PVT. LTD. v. STATE OF BIHAR[S.B. SINHA, J.] 
999 
4. Having regard to the plain language of Section 37(2) of the 1996 Act, A 
there is no reason as to why the definit
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