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622. The Supreme Court therein held that arbitral proceedings stand terminated upon passing of final award and in that context, observed that it is not appreciated how Section 42 of the said Act, (6 of 19) [CMA-12/2019] which deals with the jurisdiction issue in respect of the arbitral proceedings, would have any relevance. Learned counsel, in support of his argument, relied upon judgment of the Supreme Court in State of West Bengal & Others Vs. Associated Contractors, (2015) 1 SCC 32. The Supreme Court in that case held that Section 42 applies in all applications made before, during or after the arbitral proceedings are over. Thus, the judgment delivered in Sundaram Finance Limited represented by J. Thilak, Senior Manager (Legal) (Supra) being in direct conflict with latter judgment delivered in State of West Bengal & Others Vs. Associated Contractors (Supra) to the extent of applicability of Section 42 of the Arbitration Act after passing the award, the latter judgment will prevail. It is argued that termination of arbitral proceedings in any case would not make the Arbitration Act inapplicable on applications filed for execution of the arbitral award. Learned Commercial Court wrongly arrived at the conclusion that only if objection against the award is filed before the Commercial Court, the application for execution of award under Section 36 of the Arbitration Act would be considered as an application arising out of that Act as per Section 10(3) of the Commercial Courts Act and not otherwise. The Commercial Court illegally held that since objections under the Arbitration Act were not preferred before the Commercial Court, the application under Section 36 of the Arbitration Act cannot be said to be an application arising out of that Act as per Section 10(3) of the Commercial Courts Act.

We have given our anxious consideration to rival submissions, carefully perused the material on record and studied the cited precedents.

The Commercial Court, Ajmer has relied upon the judgment of the Supreme Court in Sundaram Finance Limited represented by J. Thilak, Senior Manager (Legal) (Supra) in holding that an application under Section 36 of the Arbitration Act for execution of award cannot be treated as an original or independent application de hors the main arbitration proceedings in which final award has already been rendered, thus resulting into termination of arbitration proceedings. In the aforesaid case, respondent Abdul Samad defaulted in payment of a loan taken for vehicle from the appellant financial institution. An ex-parte award was passed against the respondents. Case of the appellant before the Supreme Court was that the award being enforceable as a decree under Section 36 of the Arbitration Act, execution (10 of 19) [CMA-12/2019] proceedings were filed in the jurisdiction of the Courts at Morena, Madhya Pradesh under Section 47 read with Section 151 and Order 21 Rule 27 CPC. Plea of the respondent was that the vehicle concerned was stolen. The Trial Court returned the execution application on the ground of jurisdiction. Due to conflicting views of various High Courts, the appellant therein directly approached the Supreme Court against the order of the trial court. In those facts, the Supreme Court held that some High Courts are of the incorrect view that transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located, while other High Courts are of the correct view that an award is to be enforced in accordance with the provisions of the CPC in the same manner as if it were a decree of the Court as per Section 36 of the Arbitration Act, which does not imply that the award is a decree of a particular Court, and it is only a fiction. Thus, the award can be filed for execution before the Court where the assets of the judgment debtor are located. Section 36 of the Arbitration Act would show that an award is to be enforced in accordance with the provisions of the CPC in the same manner as if it were a decree. It was in that context that the Supreme Court held that line of reasoning supporting the award to be filed in a so-called Court of competent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42 of the Arbitration Act, which applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that Court alone. However, the Supreme Court further observed that what has (11 of 19) [CMA-12/2019] been lost sight of is Section 32 of the Arbitration Act, which provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, Section 42 of the Arbitration Act, which deals with the jurisdiction issue in respect of arbitral proceedings, does not have any relevance. The Supreme Court, therefore, held that the decree of Civil Court is liable to be executed primarily by the Court which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the Arbitration Act is equated to a decree of the Court for the purposes of execution and only for that purpose, an award passed by the Arbitral Tribunal is deemed to be a decree under Section 36 of the Arbitration Act. There is no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award is passed should be taken to be the Court, which passed the decree. The Arbitration Act actually transcends all territorial barriers. Thus, the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings. Clearly, the Supreme Court in the aforementioned case of Sundaram Finance Limited represented by J. Thilak, Senior Manager (Legal) (Supra) did not have the occasion to deal with inter play of Section 36 of the Arbitration Act with Sections 10(3) and 15(2) of the Commercial Courts Act.