Bombay High Court
Sou.Rajashree Shrinivas Joshi vs M/S.Omega Information Systems on 6 February, 2009
Author: Anoop V. Mohta
Bench: Anoop V.Mohta
dgm
gm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.3429 OF 2005
1. Sou.Rajashree Shrinivas Joshi
Age: 32 years-Adult, Occ:Household,
R/o.1343, 'C' Ward,Laxmipuri,
Kolhapur.
2. Shri Narendra Rajaram Kulkarni,
Age:34 years,Adult, Occ.Business,
R/o.1211, 'A' Ward, Ardh Shivaji Putla,
Shivaji Peth, Kolhapur.
3. Sou.Aruna Surendra Wakharia,
Age:31 years,Adult,Occ:Household,
R/o.Flat No.7, Rajnigandha Housing,
Society, Tarabai Park, Kolhapur. ..Petitioners
Vs.
M/s.OMEGA information Systems,
Registered Partnership firm (as alleged),
By and through its partners, Shri Avinash
Madhukar Shete,
Age: Adult, Occ: Business,
R/o.Nishant Colony, Moti Chowk,
Sangli 416 416. ..Respondent
ALONG WITH
WRIT PETITION NO.3158 OF 2003
1. M/s.Super Computers,
Registered partnership firm,
through its partner,
Sou.Manjiri Madhukar Deshmukh,
Adult, Occ: Business,
r/o.Shanti Chambers,Shaniwar
Peth, Miraj.
2. Sou.Manjiri Madhukar Deshmukh,
Adult, Occ: Business, r/o.
Shanti Chambers, Shaniwar Peth,Miraj..Petitioners
vs.
M/s.OMEGA Information Systems,
Registered Partnership Form,
(as alleged) by & through its
partner, Shri Avinash Madhukar
::: Downloaded on - 09/06/2013 14:19:17 :::
(2)
Shete, Adult, Occ: Business, r/o.
Nishant Colony, Moti Chowk,
Sangli. .. Respondent
Mr.A.M. Kulkarni for the petitioners.
Mr.S.S.Patwardhan for the respondent.
AND ALONG WITH
WRIT PETITION (STAMP) NO.19974 OF 2003
M/s.Omega Information Systems
registered Partnership Firm through its
partner Avinash Madhukar Shete, age,
adult, Occ.-Business, R/o.Nishant
Colony, Moti Chowk, Sangli. Petitioner
vs.
1. M/s.Super Computers, registered
partnership firm through its partner
Manjiri Madhukar Deshmukh, age adult
occ.business, R/o.Shanti Chambers,
Shaniwar Peth, Miraj, Dist.Sangli.
2. Manjiri Madhukar Deshmukh, age adult,
occu.business, R/o.Shanti Chambers,
Shaniwar Peth, Miraj, Dist.Sangli. Respondents
Mr.S.S.Patwardhan for the petitioner.
Mr.A.M.Kulkarni for the respondents.
CORAM : ANOOP V.MOHTA,J.
DATED : 6th February,2009.
JUDGMENT:
The petitioners/judgment debtors in Writ Petition No.3429/2005 have challenged the impugned judgment and order dated 4.2.2005 passed by the learned IInd Joint Civil Judge, Senior Division, Kolhapur below Exhibits 22 and 23 in Special Darkhast No.53/2004 filed by the respondents/decree holders.
::: Downloaded on - 09/06/2013 14:19:17 ::: (3)It is by this impugned judgement and order, that the Joint Civil Judge, Senior Division, Kolhapur is competent and has jurisdiction to proceed with the execution of the Award passed under the Arbitration and Conciliation Act, 1996 (for short, "the Arbitration Act") and thereby rejected the objection raised by the judgment debtors as their application under Order 21, Rule 47 of Code of Civil Procedure (CPC) was also pending for consideration.
2. In ig Writ Petition No.3158/2003 the above petitioners/judgement debtors have challenged the impugned order dated 4.3.2003 passed by the learned Joint Civil Judge, Senior Division, Sangli below Exhibits 97 and 101 in Special Darkhast No.44/2002 filed by the respondents/decree holders. By this impugned order, the Court has directed the petitioner (judgment debtor no.2) to furnish the Bank Guarantee of Rs.12,24,929/- and further observed to decide the issue with regard to the jurisdiction as per Section 47 of the CPC, after compliance of above condition of furnishing the Bank Guarantee.
3. In Writ Petition (Stamp) No.19974/2003, the decree holder M/s.Omega Information Systems has also challenged the impugned order dated 04.03.2003 passed ::: Downloaded on - 09/06/2013 14:19:17 ::: (4) on Exhibits '97' and '101' in Special Darkhast No.44/2003.
4. The common facts are that the petitioners in Writ petition No.3429/2005 are the partners of M/s.Super Computers (the firm). An agreement dated 08.08.1997 was executed between the firm and the respondent, a registered partnership firm, with regard to supply of computers. There is a clause of Arbitration Agreement in case of dispute between the partners. As per the said clause, ig if any dispute arose between them, the same shall be referred to the Arbitrator who shall be appointed by consent of both the parties and such dispute, if could not be solved by the Court of law.
One Shri Shrikant R.Joshi, an Arbitrator was appointed as a sole Arbitrator. As alleged, the petitioners had never given any consent for the appointment of the Arbitrator. The Arbitrator passed an Award dated 15.02.2002 against the petitioners/judgment debtors.
Based upon the said Award, an execution proceeding (Special Darkhast No.44/2002) filed by the respondents in the Court of Joint Civil Judge, Junior Division, Sangli and thereby seeking an amount of Rs.2,10,000/-
towards arrears of monthly rent and maintenance charges of Rs.15,000/- per month.
::: Downloaded on - 09/06/2013 14:19:17 ::: (5)5. The petitioners have raised various objections in the execution proceedings. That resulted into filing of Writ Petition No.6147/2000. The same was dismissed on 13.01.2003 keeping the point of objection to be raised under Section 47 of CPC, as preliminary issue was not framed in respect of the maintainability and the jurisdiction.
6. An application Exhibit '97' was filed by the respondents for issuance of warrant against the petitioners ig and other judgment debtors on 31.03.2002.
This application was opposed by reply on Exhibit '100' on 10.02.2003. Another application Exhibit '101' was filed by the petitioners to frame preliminary issue of jurisdiction. The learned executing Court, Sangli passed the impugned order dated 04.03.2003 directed the petitioners to furnish the Bank Guarantee in the sum of Rs.12,24,929/- within a period of one month as a condition to frame the issues as required under Section 47 of CPC.
7. The firm M/s.Super Computers through its partner, as referred above, have filed Writ Petition No.3158/2003. The petitioners (judgment debtors) were made party in execution though the dispute was between the firm and the respondents. The petitioners were ::: Downloaded on - 09/06/2013 14:19:17 ::: (6) also made parties as judgment debtors in the said execution proceedings, pending in the Civil Court at Sangli.
8. Pending the said execution at Sangli, the respondents have filed another execution proceedings against the firm as well as the petitioners before the learned Civil Judge, Senior Division, Kolhapur bearing Special Darkhast No.53/2004. Therefore, resisted by the firm as well as the petitioners thereby jointly filed an ig application at Exhibit '22' dated 23.09.2004 with a prayer to frame preliminary issue as to the jurisdiction of the Civil Court to execute the Arbitration Award in view of definition of "Court" as contemplated under the Arbitration Act. The petitioners basically contended that the District Judge is the only proper Court to entertain and try and decide the execution proceedings arising out of the Arbitral Award governed by the Arbitration Act.
An another application at Exhibit '23' dated 23.09.2004 was also filed in respect of the execution proceedings and to frame preliminary issue before proceeding further with the matter. The said applications were opposed by the respondents by Exhibit '26' on 18.10.2004.
::: Downloaded on - 09/06/2013 14:19:17 ::: (7)9. The executing Court at Kolhapur by common order dated 04.02.2005 held that the Court of Civil Judge, Senior Division is competent to proceed with the execution proceedings of the Arbitral Award under the said Act and thereby rejected both the applications filed by the petitioners and permitted the respondents/decree holders to take steps in accordance with law. The objection under Order 21, Rule 47 of CPC, is still pending as recorded.
10. It igis pertinent to note that the Award became final as the challenge to the Award as raised was beyond time and now the statements are made by both the parties that the said application is also dismissed in default. Therefore, the Award in this way attained finality and is an executable decree in accordance with the provisions of CPC.
11. A Full Bench of this Court in Arbitration Appeal No.14/2005-M/s.Fountain Head Developers v.Mrs.Maria Arcangela Sequeira with other companion matters by its judgment dated 12.04.2007, has decided the issue and meaning of the word "Court" as contemplated under Section 2(e) of the Arbitration Act in the following words:
"2. ....."Whether it is the Civil Judge, ::: Downloaded on - 09/06/2013 14:19:17 ::: (8) Senior Division or the District Court which should be construed as being the Principal Court of Original Jurisdiction for the purpose of a petition under section 34 of the Arbitration and Conciliation Act, 1996."
18. We, accordingly, answer the question formulated by us in paragraph 2 of the judgment as follows: The Principal Civil Court of original jurisdiction in a district for the purpose of a petition under section 34 of the Act of 1996 is a District Court and does not include any other court inferior to the District Court.
19. We direct to place all the matters before the appropriate learned Single Judges for their disposal in the light of this judgment disposing of the references."
12. District In Court view is of above, the there "Court"
remain
for the
no doubt
purposes
that the
of
executing the Award passed under the Arbitration Act.
In view of above, the District Court is the Principal
Civil Court of the original jurisdiction in a District.
13. In view of this itself, without observing any further on the merits, Writ Petition No.3429/2005 is allowed and the impugned order dated 4.2.2005 passed below Exhibits 22 and 23 in Special Darkhast No.53/2004 by 2nd Joint Civil Judge, Senior Division, Kolhapur is quashed and set aside and the matter is remanded back for reconsideration afresh in view of above.
::: Downloaded on - 09/06/2013 14:19:17 ::: (9)14. With regard to the impugned order dated 4.3.2003 passed by Joint Civil Judge, Senior Division, Sangli below Exhibits 97 and 101 in Special Darkhast No.44/2002, challenged in Writ Petition No.3158/2003, whereby the direction by the learned trial Court to the petitioners to furnish the Bank Guarantee cannot be said to be unjust or unreasonable in view of the above facts and circumstances of the case and as admittedly the Award became final. The preliminary issue with regard to the jurisdiction under Section 47 of CPC is ig still pending. As in the present case, the Award became final for all the purposes and, therefore, being a money decree, such condition of furnishing Bank Guarantee cannot be said to be bad in law. The Court in a given case after considering point of jurisdiction and all points as raised under Section 47 of CPC may pass appropriate order with regard to this issue of the Bank Guarantee also. In view of above and as observed in the impugned order dated 4.3.2003 that the District Court is the Principal Court of original jurisdiction in the District as contemplated under Section 21(e) of the Arbitration Act and, therefore, the jurisdiction of the Civil Court, Senior Division has been ousted.
Therefore, no interference is necessary in the impugned order dated 4.3.2003 and Writ Petition ::: Downloaded on - 09/06/2013 14:19:17 ::: ( 10 ) No.3158/2003 is dismissed.
15. In view of above, Writ Petition (Stamp) No.19974/2003 arising out of order dated 04/03/2003 in Darkhast No.44 of 2002 is also disposed of accordingly as admittedly the application under Section 47 of CPC is pending.
16. Both the Courts below need to consider pending applications by taking note of Sections 36 to 39 including amendedig clause 39(4) r/w Order XXI, Rule 3 and 48 of the CPC. All pending applications be decided within eight weeks from the date of receipt of the order.
17. In view of this all the above writ petitions are disposed of accordingly. No costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 14:19:17 :::