India: High Court v. District Court, Where Will Your Section 34 Arbitration Petition Lie?

  • Supreme Court considers the meaning of "Court" under Section 2 (1) (e) of the Arbitration and Conciliation Act, 1996.
  • Supreme Court considers where petition will lie when both the contesting petitions are filed on the same day with courts having concurrent jurisdiction.
  • Supreme Court holds that when a Section 34 petition is simultaneously filed in a District court and a High Court the High Court having ordinary original civil side jurisdiction will have primacy to hear the petition.


The Supreme Court ("SC") in its recent judgment of Executive Engineer, Road Development Division No.III, Panvel & Anr. v Atlanta Limited1 has analysed the definition of "Court" to determine which court would hear challenges to an arbitral award (or arbitral agreement, or arbitral proceeding) where jurisdiction lies with more than one court and the parties initiate proceedings in multiple courts simultaneously.


Atlanta Limited ("Respondent") was awarded a contract for construction of the Mumbra bypass by the Public Works Department, Maharashtra ("Appellant"). The contract stipulated that in the event of disputes arising between the parties, the same were to be resolved through arbitration with the seat at Mumbai.

Disputes arose between the parties in 2009, followed by an arbitral award being passed in 2012. This arbitral award was challenged under Section 34 of the Arbitration and Conciliation Act, 1996 ("Act") before the District Judge, Thane by the Appellant and before the Bombay High Court ("Bombay HC") by the Respondent on the same day, on August 7, 2012.

The Respondent filed an application for transfer of proceedings from the District Judge, Thane to the Bombay HC as the subject-matter of challenge arose out of the same arbitral award. The application was allowed by the Bombay HC for consolidation leading to the present appeal.


The SC dealt with two issues:

Preliminary Issue:  Whether a challenge to an arbitral award (wherein jurisdiction lies with more than one court), can be permitted to proceed simultaneously in two different Courts.

Main Issue: Which of the two courts, viz. the Bombay HC or the District Judge, Thane would have jurisdiction to hear the matter if the answer to the preliminary issue is in the negative.


It was submitted that:

  • District Judge, Thane, alone had the jurisdiction to entertain petitions challenging the validity of the award. Reliance was placed on Section 2(1)(e) of the Act which defines the term "Court" as:

"'Court' means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes"

  • The Appellant contended that the determination of the relevant court for exercising jurisdiction would have to be done in the same manner as in the case of civil suits. The definition uses the expression "subject matter" (which is only referable to the subject matter of the contract, i.e ., the bypass and the tolls located in Thane in the present case) and not "cause of action" (which maybe referable to places where the contract is executed, or where arbitration proceedings were conducted). Thus, even if the Bombay HC is found to have jurisdiction, the District Court of Thane was "more natural", "more suitable" and "more appropriate" for the adjudication of the claims raised by the parties as the subject matter was situated in Thane.
  • It was further contended that even if the "ordinary original civil side" of the Bombay HC and the "principal Civil Court of original jurisdiction", i.e. the District Judge, Thane, both have jurisdiction in the matter, as per Section 152 of the CPC, the District Judge would be the cou rt of the lowest grade having jurisdiction and would be the appropriate forum to adjudicate the disputes.
  • Section 24 of the CPC (general power of the High Courts and District Courts to transfer and withdrawal of any suit, appeal or other proceedings) ought not to have been relied upon by the Bombay HC for transferring the proceedings from the court of District Judge, Thane, to the Bombay HC since Section 24 of the CPC could not be invoked in a petition filed under Section 34 of the Act. In any case the proceedings in the Bombay HC ought to have been transferred to the District Judge, Thane.


The Respondent contended that:

  • The Bombay HC would have jurisdiction since the contract between the parties had been executed in Mumbai.
  • Additionally, the parties had mutually agreed under the contract that the seat of arbitration would be at Mumbai.
  • The Appellant in their Reply Affidavit before the Bombay HC had admitted that both courts had jurisdiction with respect to the subject-matter of arbitration.
  • In light of the judgment passed by the Constitutional Bench of the SC in Bharat Aluminium Company & Ors. v. Kaiser Aluminium Technical Services Inc & Ors.3 ("BALCO") the court of the seat of arbitration, i.e., the Bombay HC in the instant case, would be requi red to exercise supervisory control over the arbitral process and therefore, would be the relevant court for the purposes of Section 2(1) (e) of the Act.


In respect of the preliminary issue, the SC, referring to Section 424 of the Act (although inapplicable in Part I disputes), stated that though the jurisdiction for raising a challenge to the same arbitration agreement, arbitral proceeding or arbitral award, could arise in more than one court simultaneously, the court where the first challenge application is filed will alone have the jurisdiction to adjudicate upon the dispute(s) which are filed later on.

It was observed that in the present case Section 42 was not attracted since both the challenges had been filed on the same day. However, the SC held that it was clearly the legislative intention that all disputes arising out of same arbitral award would lie only before one court.

Considering the submissions of the Appellant regarding the applicability of Section 15 of the CPC for the determination of the appropriate "Court" under the Act, the SC negatived the application of Section 15 for interpreting Section 2(1)(e) of the Act since, in the SC's view, Section 15 of the CPC would defeat the inclusion of the High Court "in exercise of its ordinary original civil jurisdiction", within the definition of the term "Court" as the "principal Civil Court of original jurisdiction in a district", namely the District Judge concerned, being a court lower in grade than the High Court would always exclude the High Court from adjudicating upon the matter. The SC held that under the Act, it is the superior most Court exercising original civil jurisdiction, which would be termed as "Court" for the purpose of Section 2(1)(e) of the Act and negated arguments raised by the Appellant.

The SC held that it makes no difference "if the principal civil court of original jurisdiction" is in the same district over which the High Court exercises original jurisdiction or some other district. Further, if an option is to be exercised between a High Court (under its "ordinary original civil jurisdiction") on the one hand and a District Court (as "principal civil court of original jurisdiction") on the other, the choice under the Act has to be exercised in favour of the High Court.


In this judgment the SC was posed with a very important issue of determining jurisdiction where parties file simultaneous challenges under the Act in more than one court, both of which enjoy jurisdiction to hear the matter. Though the conclusion may not have changed, the SC's reasons in arriving at the conclusion appear to have overlooked some of the arguments made by the Respondent. The SC has failed to take into consideration the existing body of relevant case laws while resolving the query.

The SC in its latest decision of Swastik Gases Private Limited v. Indian Oil Corporation Limited5 dealt with the issue of "exclusive jurisdiction" clauses in the context of arbitration and decided in favour of the court chosen by the parties. The SC did analyze the connecting factors shown by the parties however due to exclusive jurisdiction clause in agreement, decided otherwise.

In the present case, the SC should have also considered the various courts in which the jurisdiction would have resided by establishing the connecting factors. Thereafter, it could have favoured the court with the strongest connecting factors for the purposes of hearing the challenges. In the context of arbitration the court with the strongest connection is the seat court, in this case the Bombay HC since the seat was Mumbai.

Further, in para 18 of the decision, the SC holds that Section 15 of the CPC does not apply when interpreting 2(1) (e) of the Act since that would always oust the jurisdiction of the High Court and therefore the legislative intent in Section 2 (1)(e) differs from that behind Section 15. The High Court being the more superior court, the High Court would have jurisdiction. This interpretation can be distinguished on following counts –

a) Although the judgment states that the question of pecuniary jurisdiction is not one before the Court, had the Court considered this question, it would've been amply clear that when the pecuniary ceiling of the District court is hit, even if the cause of action or subject matter is within the district, an applicant would be compelled to go to the High Court.

b) Nothing in the language of Section 2 (1) (e) or the entire Act suggests that a hierarchically superior court will have jurisdiction. In fact reading Section 15, harmoniously with Section 2 (1) (e) it would have to be read in a manner which will result in different conclusion.

c) In interpreting Section 2 (1) (e) the subject-matter of the arbitration has to be treated as if the same had been the subject-matter of a suit. Therefore, one could argue that Section 2 (1) (e) mandates that a petition be treated just as a suit for the purposes of interpreting the meaning of court. From such a reading as well, one could argue that a district court would be the first court of recourse and would aptly exercise jurisdiction.


1 Civil Appeal No. 673 OF 2014 (Arising out of SLP (C) No.18980 of 2013)

2 Section 15 of the CPC: Court in which suits to be instituted: Every suit shall be instituted in the Court of the lowest grade competent to try it.

3 (2012) 9 SCC 559

4 Section 42 of the Act: 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.

5 (2013) 9 SCC 32

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Varuna Bhanrale
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.