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HIGH COURT OF DELHI
CM(M) No.869/2014 22nd September, 2014 NATIONAL HIGHWAYS AUTHORITY OF INDIA ......Petitioner
Through: Ms. Ayushi Kiran, Advocate.
Through:
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This petition under Article 227 of the Constitution of India is filed on 16.9.2014 impugning the order dated 11.2.2014 ie an order passed over seven months back. Also, the order dated 11.2.2014 is only an ex parte order passed while issuing a notice in a Section 9 petition, under the Arbitration & Conciliation Act, 1996 (in short ‘the Act’) and which is pending disposal. The subject petition under Section 9 of the Act has been filed by the respondent no.1 herein and against the present petitioner with respect to disputes arising out of the contract dated 7.2.2011 pertaining to road building. 2014:DHC:4881
2. In this petition under Article 227 of the Constitution of India, petitioner impugns the order dated 11.2.2014 on various grounds, but essentially there are two main aspects which are urged and which are firstly that the court below had no territorial jurisdiction and secondly on merits of the ex parte order dated 11.2.2014 and that it could not be passed, because it has an effect of allowing payment to the respondent no.1 herein by an ex parte interim order.
3. If the impugned order is challenged on the ground that an injunction is granted, then that order will be appealable under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) read with Section 37(1)(a) of the Act and not by means of this petition under Article 227 of the Constitution of India. Therefore, this petition under Article 227 of the Constitution of India is not maintainable for this reason and is dismissed with liberty to the petitioner to file an appeal in view of the judgment of the Supreme Court in the case of A. Venkatasubbiah Naidu Vs. S.Challappan & Ors. AIR 2000 SC 3032.
4. If the case of the petitioner herein, and which is the respondent no.1 in Section 9 petition of the Act, is that the court below has no territorial jurisdiction, then, the petitioner herein had to move an application under Order VII Rule 10 CPC before the court below. Straightway, there cannot be a challenge as regards an issue of territorial jurisdiction, without first this issue being raised before the court below and decided by the court below.
5. As already stated above, this petition is also barred by delay and laches because limitation period of 90 days for filing of the first appeal is a good guide, though Limitation Act, 1963 stricto sensu does not apply to a petition under Article 227 of the Constitution of India and therefore this petition is also barred by delay and laches because it is filed on 16.9.2014 impugning an order passed way back on 11.2.2014.
6. Dismissed with the aforesaid observations and liberty.
SEPTEMBER 22, 2014 VALMIKI J. MEHTA, J. ib