Madhya Pradesh High Court
Computer Sciences Corporation India ... vs Harishchandra Lodwal And Anr. on 3 August, 2005
Equivalent citations: AIR2006MP34, AIR 2006 MADHYA PRADESH 34, 2006 (2) AJHAR (NOC) 410 (MP), 2006 A I H C (NOC) 39 (MP), (2005) 1 MPLJ 539, 2005 ARBI LR(SUPP) 121, (2005) 4 MPLJ 164, (2006) 1 CIVLJ 914
Author: N.K. Mody
Bench: N.K. Mody
ORDER N.K. Mody, J.
1. Being aggrieved by the order dated 24-1-2003, passed by VII ADJ, Indore, in Arbitration Execution Case No. 9/02, whereby application for transfer of decree has been dismissed, the present revision has been filed.
2. Short facts of the case are that the award was passed in favour of the petitioner on 1-11-2002. Petitioner moved an application under Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of the award before the Learned Court below. Petitioner also moved another application for transfer of the decree. Further prayer was that since respondents are residing at Delhi, therefore the decree be transferred to the Court of Delhi. By the impugned order Learned Court below has dismissed the appeal on the ground that the petitioner is at liberty to file the execution proceedings at Delhi itself.
3. Learned Counsel for the petitioner submits that Section 42 of the Arbitration and Conciliation Act, 1996 laid down the jurisdiction which reads as under :
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.
4. It is submitted that in view of Section 42 of the Act the execution petition can be filed before the Court alone who has jurisdiction over the arbitration 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 Counsel further placed reliance on Section 2(e) of the Act which defines the Court reads as under :
2. Definitions.-- (1) In this Part, unless the context otherwise requires,--
(a) to (d) ....
(e) "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;
5. It is submitted that under Section 36 of the Act award has to be enforced under the Code of Civil Procedure in the same manner as if it were the decree of the Court Section 36 of the Act which reads as under :
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 (5 of 1908) in the same manner as if it were a decree of the Court.
6. Learned Counsel further submits that Section 37 of the Code defines the Court which passes the decree and Section 39 laid down the procedure for transfer of decree. It is submitted that unless and until the decree is sent for execution by the Court it passed the decree for execution to another Court of competent jurisdiction the transferee Court cannot execute decree under Sections 37 and 39 of the Act.
7. Learned Court below has disposed of the application holding that the petitioner is competent to execute the decree at Delhi.
8. In view of the aforesaid position of law, since award is passed at Indore therefore unless and until the Court at Indore transfer the decree to the Court at Delhi, it cannot be executed. In view of this decree dated 24-1-2003, is set aside with the direction to the Court below to consider the application for transfer so as to enable the petitioner to proceed with the execution of decree at Delhi.
9. With the aforesaid observations this petition stands disposed of.