Delhi High Court
M/S. Kinetic Capital Finance Ltd. vs Anil Kumar Misra on 12 November, 1999
Equivalent citations: 2000(56)DRJ774
ORDER Dr. M.K. Sharma, J.
1. This petition is directed against the order dated 26.9.1998 passed by the Civil Judge, Delhi in Execution petition No.6/1998 holding that the court of Civil Judge has no jurisdiction to entertain the execution application filed by the petitioner.
2. Disputes having arisen between the petitioner and the respondent thesame were referred to the arbitrator in terms of the arbitration agreement. The arbitrator entered into the reference, made and published his award on 21.8.1997 awarding a sum of Rs. 19,988/- payable by the respondent to the petitioner company. After expiry of the period for filing objections an execution petition was filed by the petitioner in the court of Senior Civil Judge seeking transfer certificate to the District Judge, Kanpur. The Senior Civil Judge assigned the aforesaid Execution Petition to the court of the Civil Judge, Delhi. The Civil Judge, Delhi however, by the impugned order directed for return of the execution application for presenting the same to the appropriate court holding that his court has no pecuniary jurisdiction to entertain the said application as according to him the principal civil court of original jurisdiction in the district is the District Court only. Being aggrieved by the aforesaid order the present petition is filed in this court challenging the order of the Civil Judge.
During the course or arguments, I requested Mr. Raman Kapur, Advocate, who was present in court to assist the Court in respect of the subject matter of the present petition. I wish to place on record a word of appreciation for the able assistance provided by him in answering the issue involved in the present case.
3. Counsel appearing for the petitioner and Mr. Kapoor submitted that the definition of Court as given in the Arbitration and Concilation Act includes the Court of Civil Judge also when the subject matter of the proceedings does not exceed Rs. 1 lac. In support of his contention Mr. Kapoor relied upon the scheme made by the High Court of Delhi under notification dated 20.2.1994. The High Court in exercise of the powers conferred, by sub-section (10) of Section 11 of the Arbitration and Conciliation Act has issued a notification circulating the scheme framed by the Chief Justice of the High Court which is called the Scheme for appointment of Arbitrators. In the said scheme under the head "Submission of request" it is provided that the request under sub-section (4) or sub-section (5) or sub-section (6) of Section 11 of the Act shall be made in writing in the form prescribed in Appendix 1. Under paragraph 3 of the said scheme the High Court has named the Authorities who could deal with the request for appointment of arbitrators. Paragraph 3(i) of the siad scheme provides that for the purpose of dealing with the request made in para 2 of the Scheme the Chief Justice has designated the Civil Judge where the value of the subject matter does not exceed Rs.1 lakh, the District Judge/Additional District Judge where the value of the subject matter does not exceed Rs. 5 lakh and the Judge of the High Court exercising ordinary original civil jurisdiction, where the value of the subject matter exceeds Rs. 5 lakh. It is provided in paragraph 3(ii) of the Scheme that the requests falling under sub-para (a) of para 3 i.e. the Civil Judge where the value of the subject matter does not exceed Rs.1 lac, be initially placed before the Senior Civil Judge for appropriate allotement. It is thus apparent that in terms or the provisions of Section 11 so far appointment of an arbitrator is concerned a request could be made by a person for appointment of an arbitrator to the Civil Judge when the valuation of the subject matter does not exceed Rs.1 lac, since he has been designated by the Chief Justice under the aforesaid Scheme.
4. The Civil Judge has noticed the aforesaid provisions of the Scheme. He however, by the impugned order has held that so far the procedure for regulating enforcement of the award is concerned which has been provided for under section 36 of the Arbitration and Conciliation Act, 1996, the provisions of Section 11 and the Scheme made thereunder is irrelevant. In order to appreciate his conclusions, it is necessary to notice the provisions of Section 36 of the aforesaid Act which is extracted below:-
36. Enforcement.- Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 in the manner as if it were a decree of the Court.
The expression 'Court' is also defined under section 2(e) which 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.
5. The Punjab Courts Act, 1918 which is applicable to Delhi also provides that the Court of the District Judge would be deemed to be the District Court or Principal Civil Court of original jurisdiction in the district. Section 25 thereof provides that except as otherwise provided by any enactment for the time being in force, the court of the District Judge shall have jurisdiction to entertain original civil suits without limit as regards the value. Section 26 thereof provides that the jurisdiction to be exercised in original civil suits as regards the value by any person appointed to be a Subordinate Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit.
6. The Delhi High Court Act was enacted in the year 1976 and Section 5 thereof provides that the High Court of Delhi shall have all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said teritories by the High Court of Punjab. Sub-section (2) of Section 5 further provides that notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have, in respect of the said territories, ordinary original civil jurisdiction in every suit the value of which exceeds Rs. 5 lac. The words 'Rs.1 lac' which was originally there in the said provision was substituted by the words Rs. 5 lac' by the Delhi High Court (Amendment) Act, 1991.
7. In this connection reference may also be made to the decision of Bakshi Lochan Singh and Others Vs. Jathedar Santokh Singh and others, . In the said decision the Division Bench of this Court held that in view of the non obstante clause contained in subsection (2) of Section 5 of the Delhi High Court Act, 1966, the Court of the District Judge, Delhi will be the principal Civil Court of original jurisdiction in every suit the value of which does not exceed fifty thousand rupees. But in suits the value of which exceeds fifty thousand rupees, the High Court of Delhi will be the principal Civil Court of original jurisdiction notwithstanding Section 24 of the Punjab Courts Act. The amount of Rs. 50,000/- came to be amended from time to time, which now is valued at Rs. 5 lac. It was held by the Division Bench that after coming into force of the Delhi High Court Act as amended the Delhi High Court has become the Principal Civil Court of Original jurisdiction with respect to every suit the valuation of which now exceeds Rs. 5 lac.
8. Reference may also be made to a decision of the Punjab & Haryana High Court in Prithipal Singh Vs. Magh Singh and Others, . In the said decision it was held that suits under Section 92 could be instituted both in the Principal Civil Court of Original jurisdiction as also in any other court empowered in that behalf within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situated. Empowering by a gradation and distribution list of officers in the judicial department which is prepared and published by the State Government is held to be sufficient compliance. It was held that when such a list empowers all Subordinate Judges to try such suits under Section 92, then in view of Section 15 such suits should be instituted only in the Courts of subordinate Judges.
9. The words used in the definition of 'court' "having jurisdiction to decide the question forming the subject matter of the arbitration if the same had been the subject matter of a suit" and the expression used in Section 36, " award shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court" have also relevance for the purpose of deciding the issue arising before me. Taking notice of the ratio laid down by the aforesaid decisions and the words used in the definition of 'court' and in the provision of Section 36 of the Act it appears that an award made under the provisions of the Arbitration and Conciliation Act, 1996 could be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court. A Civil Judge is competent to pass a decree for an amount not exceeding Rs.1 lac. Such a decree passed by the Civil Court for an amount not exceeding Rs.1 lac could therefore, be enforced in the same court i.e. in the court of Civil judge. Therefore, for the purpose of a suit/proceeding the subject matter of which does not exceed Rs.1 lac the principal Civil Court of original jurisdiction in the district would be the Court of the Civil Judge. In arriving at the aforesaid conclusion I am fortified by the decision of this court in Bakshi Lochan Singh's case (supra). It would also be appropriate to mention that an award could be filed in the court which had appointed the Arbitrator. Since appointment of the Arbitrator for a dispute and subject matter the value of which does not exceed Rs.1 lac, could be made by the Civil Judge in terms of the scheme prepared by the High Court, therefore, the award passed by an arbitrator appointed by a Civil Judge could also be enforced in terms of the provisions of Section 36, by a Civil Judge.
10. In that view of the matter the reasonings and findings given by the Civil Judge are illegal and erroneous. The same are set aside while holding that the Civil Judge has the competence and jurisdiction to try and decide an execution application filed in his court valuation of the subject matter of which is below Rs.1 lac. The matter is remitted back to the Civil Jude with a direction to him to proceed with the Execution Petition filed by the petitioner in accordance with law.