Filing Application U/S 10 Of Commercial Courts Act With S.34 Petition Fulfills Requirements U/S 34 Of A&C Act: Rajasthan High Court

The Rajasthan High Court Bench of Justices Sanjeev Prakash Sharma and Chandra Prakash Shrimali has held that merely if an application filed under Section 10, Commercial Courts Act (“CCA”) does not mention Section 34, Arbitration and Conciliation Act (“ACA”) in the heading, it does not mean that the application cannot be treated as an application under Section 34, ACA. Filing the application under Section 10, CCA and annexing the Section 34 petition fulfils the requirement of Section 34 and such a filing is not defective or untenable in law. Facts The present case is a Special Appeal (Civil), preferred under section 37(1)(c), ACA read with Section 13(1A), CCA whereby the Appellant challenged the order dated 02.03.2022 passed by the Single Judge whereby S.B. Arbitration Application No.117/2018 preferred by it under Section 34, ACA read with Section 10(1), CCA was dismissed by holding that there is no application under Section 34,ACA before him and the application moved under Section 10(1) of the Act of 2015 was not maintainable. The Appellant is a company incorporated under the laws of Taiwan engaged in the business of civil construction, building construction and related works in various countries including India. When the disputes between the parties arose, arbitration proceedings were taken up the Arbitral Tribunal which by a 2:1 majority turned down the claim of the Appellant vide its Award dated 20.12.2017. The Appellant challenged the aforementioned Award vide their petition under Section 34, ACA on 16.03.2018 before Commercial Court, Jaipur. The Commercial Court in its order dated 22.11.2018 held that as per Section 10(1), CCA, the application or appeal would lie before the High Court as it was an international commercial dispute. The Appellant filed an application under Section 34, ACA which was refused by the Registry as defective. The Appellant thereafter filed the application under Section 10(1), CCA in order to remove the defects pointed out by the Registry. The Division Bench held that the application had to be heard by the Single Bench it being under ACA. After being sent again to the Division Bench and again to the Single Bench, the Single Bench finally heard the case on preliminary objections regarding maintainability and the delay and reserved the case for orders. The Single Bench vide its judgment dated 02.03.2022, dismissed the application holding inter alia that there was no application under Section 34, ACA having been presented before the Court in terms of the Rajasthan Arbitration Rules, 2003. Contentions The Counsel for the Appellant submitted that the heading of the application mentioned that it had been filed under Section 10(1), CCA and the application mentioned that the application under Section 34, ACA had been annexed. Thus, at no given point of time the Appellant can be said to have delayed in filing the application. The Counsel further submitted that in the proceedings before the Court under Section 10(1), read with Section 34, ACA, the Single Judge was expected to have looked into the contents of the application in a pragmatic manner. The Single Judge ought to have looked into the contents of the application and decide the same on the merits of the case. In passing the impugned order, the Single Judge had erred in holding that the application under Section 10(1), CCA read with Section 34, ACA was not maintainable. On the other hand, the Counsel for the Respondent submitted that the Single Judge had rightly held that the application filed under Section 10(1), CCA was clearly not maintainable and also the same was not maintainable before the Commercial Appellate Division and it should have been filed under Section 34, ACA. Neither Section 10(1), CCA nor the provisions of Section 34, ACA provide for adjudication on merits on an application submitted before a Court having no jurisdiction in its then existing form as being sought by the Applicant. Observations The Court observed that firstly it would examine the findings arrived at by the Single Judge as to whether there was any application moved under Section 34, ACA and secondly, whether there was a delay which was sufficient to dismiss the application. The Court observed that merely mentioning a wrong heading of provision on the application would not defeat the cause of justice. The contents of the application are required to be seen and not the provision mentioned on it. The court can understand by a bare reading of the application as to under which provision the same has been filed and what the litigant means to plead before the court. The Court observed that from a perusal of the application moved by the Appellant it was apparent that the application filed by the Appellant was of the nature of raising objections against dismissal of the award by the Tribunal. The Court also highlighted instances where it was in fact the...

Filing Application U/S 10 Of Commercial Courts Act With S.34 Petition Fulfills Requirements U/S 34 Of A&C Act: Rajasthan High Court

Arpita Pande

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