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13 For proper appreciation of the arguments advanced by the parties, it would be desirable to recast several provisions of The Arbitration Act, 1940 as well as the Arbitration and Conciliation Act, 1996. The question involved in the present petitions are with regard to enforcement of the Award. Section 17 of The Arbitration Act, 1940 and Section 36 of the Arbitration and Conciliation Act, 1996 are relevant in the present case.
Section-17 of The Arbitration Act, 1940 is reproduced here-in-below:
16 By catena of decisions of the Apex Court it has been held that unless the time for making an application to set aside the arbitral award under Section-34 of the Arbitration and Conciliation Act, expires or if such an application having been made and refused, the award shall not be enforced. It has also been held that the award shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court. Now considering the Clause 36(h) of the agreement which was entered into between the parties in 1992, it was agreed that, any application or other proceedings in respect of anything arising under this agreement, shall be decided by a court situated in the city of Bombay alone. I am of the opinion that when the award is passed by the sole Arbitrator, the dispute with regard to the reasons assigned by the Arbitrator for awarding certain amount in favour of the contractor cannot be treated as dispute arising from this contract and, therefore, the Execution Applications cannot be treated as "any application" or " other proceedings" in respect of anything arising from the said agreement. The latter part of the Clause 36(h) is with regard to filing of the award or awards made by the sole arbitrator in the court. Under Section-14 of the Arbitration Act, 1940, the Arbitrator after following the procedure under the said section, had to file the award in the court. Section 17 of the Arbitration Act, 1940 empowers the court to pronounce the judgment according to the award subject to the conditions which are mentioned therein and upon the judgment was pronounced, the court had to draw a decree according to the judgment.
17 It is clear from Section 36 of the Arbitration Act, 1996 that the award itself is treated as a decree and, therefore, there is no need to file the award for pronouncement of the judgment or drawing of a decree as per the award. The intention of the parties in the agreement in the year 1992 was only to file the award in the concerned court in the city of Bombay so that the judgment can be pronounced and decree can be drawn accordingly. In case of non-applicability of Arbitration Act, 1996, post-procedure of declaring award, filing of award, pronouncement of judgment, drawing of a decree would arise under The Arbitration Act, 1940. The question of transferring decree, for it's execution, etc. would take place under the provisions of Code of Civil Procedure if a court pronounces the decree as per the award under Section -17 of The Arbitration Act, 1940. In the facts of present case, the entire procedure might have taken place if the Arbitration Act, 1996 would not have been made applicable. The parties to the agreement have voluntarily agreed to give go-by to The Arbitration Act, 1940 if some new Acts or Rules are enacted. The intention of the parties under Clause 36(h) to restrict jurisdiction of the Court was only upto filing the award. Subsequent events like execution, enforcement of decree, transferring the decree, etc. would have been taken place under the provisions of the C.P.C.
18 The parties have agreed that the award of the Arbitrator shall be final, conclusive and binding on all parties to the agreement subject to the provisions of The Arbitration Act, 1940 or any statutory modification or re-enactment thereof, the provisions of the Arbitration and Conciliation Act, 1996 would be applicable in the present case.
19 As far as Section-36 of the Arbitration and Conciliation Act, 1996 is concerned, it has been held by the Apex Court in the case of Morgan Securities and Credit Pvt Ltd. v. Modi Rubber Ltd., reported at AIR 2007 SC 683, as under: