Punjab-Haryana High Court
Indusind Bank Ltd vs M/S Bhullar Transport Company And ... on 15 November, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 7592 of 2010 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 7592 of 2010
Date of decision : November 15, 2012
Indusind Bank Ltd.
....Petitioner
versus
M/s Bhullar Transport Company and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. A.S. Virk, Advocate, for the petitioner
Mr. Manish Prbhakar, Advocate, for respondent no. 1
Mr. B.S.Jaswal, Advocate, for respondent no. 2
L.N. Mittal, J. (Oral)
Decree holder Indusind Bank Ltd. has filed this revision petition under Article 227 of the Constitution of India against order dated 23.8.2010 passed by the executing court i.e. learned Additional District Judge, Amritsar thereby ordering return of execution petition Annexure P/2 filed by the petitioner for enforcement of arbitration award Annexure P/1.
Petitioner filed execution petition Annexure P/2 for Civil Revision No. 7592 of 2010 -2- enforcement of arbitration award Annexure P/1 under section 36 of the Arbitration and Conciliation Act, 1996 (in short, the Act).
Respondent/judgment debtor no. 1 filed application Annexure P/3 for dismissal of the execution petition alleging that no part of cause of action arose at Amritsar and therefore, the executing court at Amritsar has no territorial jurisdiction to entertain the execution petition. In this regard, it was pleaded that the truck chassis (for which loan was taken from the petitioner) was purchased at Jalandhar. The alleged agreement between the parties was also executed at Jalandhar. The DH had also its office at Jalandhar and the first insurance of the vehicle in question was also effected in Jalandhar.
Respondent /judgment debtor no. 2 filed reply to execution petition/objections Annexure P/4 alleging that he never stood guarantor for the loan allegedly taken by respondent no. 1 from the petitioner and the impugned ex parte award is not enforceable against him for various reasons.
Petitioner by filing replies Annexures P/5 and P/6 controverted the averments of the respondents.
Learned executing court relying on judgment of Madhya Pradesh High Court in Computer Sciences Corporation India Pvt. Ltd. v. Harishchandra Lodwal & Anr. AIR 2006 Madhya Pradesh 34 held that since the award was passed at Chennai and hire purchase agreement was Civil Revision No. 7592 of 2010 -3- made at Jalandhar, the court at Amritsar has no territorial jurisdiction to execute the award as decree of the court unless court of competent jurisdiction transferred the decree to the court at Amritsar. Accordingly, the executing court vide impugned award ordered the execution petition to be returned to the decree holder for presentation before the court of competent jurisdiction. Feeling aggrieved, the decree holder has filed this revision petition.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that both the respondents/judgment debtors reside and also hold property within territorial jurisdiction of court at Amritsar and therefore, court at Amritsar has territorial jurisdiction to execute the award. Reliance in support of this contention has been placed on judgment of Delhi High Court in Daelim Industrial Co. Ltd. versus Numaligarh Refinery Ltd., 2009(159) DLT
579. In the said judgment, judgment of Madhya Pradesh High Court in the case of Computer Sciences Corporation India Pvt. Ltd. (supra) has also been referred to and discussed. It was also contended that merely because the award was passed at Chennai, it cannot be said that it shall be deemed to be decree to have been passed by court at Chennai so as to require its transfer for execution from Chennai court to Amritsar court. Civil Revision No. 7592 of 2010 -4- Reliance in support of this contention has been placed on judgment of Madras High Court in Kotak Mahindra Bank Ltd. versus Sivakama Sundari S. Narayana S.B.Murthy, 2011(7) MLJ 1267.
On the other hand, counsel for respondents contended that court at Amritsar has no territorial jurisdiction to execute the decree because the transaction took place at Jalandhar and the award was passed at Chennai and no part of cause of action arose within the territorial jurisdiction of Amritsar court. Reliance in support of this contention has been placed on judgment of Computer Sciences Corporation India Pvt. Ltd. (supra). Reference was also made to section 38 of the Code of Civil Procedure (in short, CPC) stipulating that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. It was thus argued that since award was passed at Chennai, it could be executed at Amritsar only if the award was transmitted to the court at Amritsar by the court at Chennai.
I have carefully considered the rival contentions. At the outset, it may be mentioned that respondent no. 2 has not raised any objection regarding territorial jurisdiction of the court at Amritsar. On the contrary, respondent no. 2 sought to challenge the award on merits but it could be done by petition under section 34 of the Act and not by filing reply and objections in the execution petition.
Civil Revision No. 7592 of 2010 -5-
As regards objections by respondent no. 1, even respondent no. 1 did not plead in its application Annexure P/3 that the decree shall be deemed to have been passed by court at Chennai where the arbitration proceedings were held and that the decree required transfer by the court at Chennai to court at Amritsar. On the contrary, only facts regarding transactions having taken place at Jalandhar were pleaded.
It is undisputed that respondents are residents of District Amritsar and hold property there i.e. within territorial jurisdiction of the executing court where the execution petition was instituted. In view of judgment of Delhi High Court in the case of Daelim Industrial Co. Ltd. (supra) and judgment of Madras High Court in the case of Kotak Mahindra Bank Ltd. (supra), court at Amritsar has territorial jurisdiction to execute the award because the respondents/judgment debtors are residing within its territorial jurisdiction and also hold property there and therefore, award is not required to be transmitted by the court at Chennai for its execution by court at Amritsar. Judgment in the case of Computer Sciences Corporation India Pvt. Ltd. (supra), of course, supports the contention of counsel for respondent no. 1. However, on considering relevant provisions of the Act and the CPC, I find judgments of Delhi High Court in the case of Daelim Industrial Co. Ltd. (supra) and judgment of Madras High Court in the case of Kotak Mahindra Bank Ltd. (supra) Civil Revision No. 7592 of 2010 -6- more plausible and convincing. There is no provision in the Act stipulating that the arbitration award, which is treated as decree for the purpose of enforcement under section 36 of the Act, shall be deemed to be decree of the court of the place where the award was passed. In the absence of any such provision, in the instant case, it cannot be said that since the award was passed at Chennai, it shall be deemed to be decree to have been passed by the court at Chennai. On the other hand, section 42 of the Act provides that where with respect to an arbitral agreement, any application under this part of the Act has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent proceedings arising out of the said agreement and the arbitral proceedings shall be made in that court and no other court. This provision, thus, stipulates that subsequent application shall be moved in the same court in which an earlier application has been moved. In the instant case, however, no earlier application was moved regarding arbitration agreement or regarding arbitral proceedings and execution petition filed at Amritsar was the first lis brought before any court relating to the arbitration agreement and the arbitration award. Since respondents/judgment debtors are residing and are holding property within territorial jurisdiction of the court at Amritsar, the court at Amritsar certainly has territorial jurisdiction to enforce the arbitration award. It does not require transmission by the court at Chennai for its enforcement by the court Civil Revision No. 7592 of 2010 -7- at Amritsar because it cannot be said that the award is deemed to be decree passed by the court at Chennai. Even otherwise, the execution proceedings have to take place in court at Amritsar within whose territorial jurisdiction, judgment debtors are holding property and are residing. On the analogy of section 20 CPC also, court at Amritsar has territorial jurisdiction to execute the award because the judgment debtors/respondents are residing within its territorial jurisdiction.
For the reasons aforesaid, I find that impugned order of the executing court is illegal and suffers from jurisdictional error. The executing court has refused to exercise jurisdiction which vested in it to enforce the arbitration award. The instant revision is, therefore, allowed. Impugned order passed by the executing court is set aside. Execution petition is restored to the files of the executing court at Amritsar. Parties are directed to appear there on 18.12.2012. The executing court at Amritsar shall now proceed with the execution petition in accordance with law.
( L.N. Mittal )
November 15, 2012 Judge
'dalbir'