Calcutta High Court
M/S. Binoy Trading Co. And Anr vs Tata Motors Finance Limited on 28 July, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
OCD-5 & 6
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Commercial Appellate Division
ORIGINAL SIDE
APO/130/2023
WITH
AP/369/2023
M/S. BINOY TRADING CO. AND ANR.
VS
TATA MOTORS FINANCE LIMITED
WITH
APO/163/2023
M/S. BINOY TRADING CO.
VS
TATA MOTORS FINANCE LIMITED
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE OM NARAYAN RAI
Date : 28th July, 2025.
Appearance:
Mr. Shyamal Chakraborty, Adv.
Mr. Jayanta Kumar Dhar, Adv.
..for the appellant
Mr. Rohit Banerjee, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Saubhik Chowdhury, Adv.
Ms. Tapasika Bose, Adv.
..for the respondent
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Dictated by Arijit Banerjee, J.
The Court: These two appeals arise out of two arbitration petitions
whereby the appellants challenged two arbitral awards passed in favour of the
present respondent by a learned sole Arbitrator. The Learned Single Judge
dismissed the two applications under Section 34 of the Arbitration and
Conciliation Act, 1996, not on merits but on the ground that the same were not
maintainable in the High Court. This is because prior to the setting aside
applications being filed, the respondent herein had approached the City Civil
Court at Calcutta with post-award Section 9 applications for interim orders to
protect the vehicles of the respondent which were in the possession of the
present appellants under loan-cum-hypothecation agreements. Such
applications under Section 9 were entertained by the Learned City Civil Court
and protective orders were also passed. The present appellants approached the
Learned City Civil Court with applications for vacating the interim orders
passed in favour of the finance company.
In the above factual background, the Learned Single Judge held that in
view of Section 42 of the 1996 Act, Learned City Civil Court at Calcutta is
clothed with exclusive jurisdiction to entertain all further applications arising
out of the concerned arbitration agreements. Accordingly, the Learned Judge
dismissed the two arbitration petitions. Being aggrieved, the petitioners before
the Learned Single Judge are before us by way of these appeals.
Section 42 of the Arbitration and Conciliation Act, 1996 reads as
follows:-
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“42. Jurisdiction. – Notwithstanding anything contained
elsewhere in this Part or in any other law for the time being in force, where
with respect to an arbitration agreement any application under this Part
has been made in a Court, that Court alone shall have jurisdiction over the
arbitral proceedings and all subsequent applications arising out of that
agreement and the arbitral proceedings shall be made in that Court and in
no other Court”.
Learned Senior Counsel appearing for the appellants raised various
grievances. He said that firstly, the appointment of Arbitrator was made
unilaterally. No consent of the appellants was obtained. No notice of arbitration
was served on the appellants. The appellants had no opportunity to contest the
claim of the finance company. Therefore, the awards are not sustainable in the
eye of law.
All these points the appellants would be entitled to urge before the forum
having jurisdiction to entertain their challenge to the concerned arbitral
awards. In view of the clear wordings of Section 42 of the 1996 Act, which was
incorporated in the statute to avoid conflict between Courts, it is the City Civil
Court alone which is competent to entertain the setting aside applications of
the appellants herein. Hence, the Learned Judge was perfectly justified in
dismissing the applications of the appellants as not being maintainable in this
Court.
The contention of the appellants that the City Civil Court does not have
pecuniary jurisdiction in the matter is also devoid of merits. The Learned Judge
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has dealt with this point in the judgment and order impugned before us and we
agree with the conclusion of the Learned Judge.
In view of the aforesaid, we find no reason to interfere with the judgment
and order sought to be assailed before us. We affirm the impugned judgment
and order to the extent it holds that the setting aside applications were not
maintainable before this Court.
We have not gone into the merits of the challenge of the petitioners to the
arbitral awards in question. If the appellants are entitled to challenge the
arbitral awards before the appropriate forum in accordance with law, they shall
be at liberty to do so. If such a forum is approached by the appellants, we
request such forum to decide the appellants’ challenge in accordance with law,
upon hearing all parties, without being influenced by any observation in this
order.
Mr. Chakraborty, learned Advocate for the appellants, says that we
should grant the appellants the benefit under Section 14 of the Limitation Act.
We are not inclined to do so in these proceedings. However, if such point is
raised before the forum which the appellants may approach, that forum shall
decide the same in accordance with law.
Both the appeals being APO/130/2023 and APO/163/2023 are disposed
of.
(ARIJIT BANERJEE, J.)
(OM NARAYAN RAI, J.)
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