An arbitrator's appointment by consent recorded in court meets legal requirements, and jurisdictional challenges based on alleged lack of procedure cannot invalidate prior agreements.

ORDER :

ABHAY AHUJA, J.

1. This Execution Application has been filed by the Applicant under Order XXI of the Code of Civil Procedure, 1908 (the “CPC”) seeking execution of award dated 21^st January, 2021 and a direction to the Respondent to pay the Applicant-Award Holder a principal amount of USD 709,776.3 (United States Dollars Seven Hundred and Nine Thousand Seven Hundred and Seventy-Six only) alongwith costs of USD 50,000/- (United States Dollars Fifty Thousand Only) and INR 11,53,000/- (Indian Rupees Eleven Lakhs Fifty-Three Thousand only) in addition to interest calculated thereupon. Although the Respondent has filed Petition under Section 34 of the Arbitration and Conciliation Act, 1996 (the “said Act”) seeking to challenge and set aside the award on the grounds of patent illegality and public policy, the same is pending and there is no stay on the operation, implementation and execution of the award although again an Interim Application seeking a stay is also pending. Therefore and also since no payment of the outstanding amount under the Award was made by the Respondent, the Applicant filed the Commercial Execution Application dated 21^st August, 2023 bearing Commercial Execution Application (L) No.24887 of 2023 on 6^th September 2023 under Section 36 of the said Act. Also Interim Application under Order XXI Rule 41 of the CPC has been filed.

2. It has been submitted that the Applicant is due to receive the total amount including interest of USD 954,797,21 plus Indian Rs.11,53,000/- from the Respondent.

2A. The Respondent has filed affidavit-in-reply to the said Application submitting that the Execution Application as well as the Interim Application are not maintainable and the same be dismissed with costs. The Applicant has chosen not to file rejoinder.

3. On 8^th April 2024, the following order was passed :

“1. Mentioned out of turn.

2. Mr.Martin, learned Counsel for the Applicant in the Execution Application as well as in the Interim Application seeks urgent hearing, submitting that if the matter is not heard, the Execution Application will be trashed by the Registry.

3. This Interim Application seeks execution of award dated 21^st January 2021 directing the Respondent to pay to the Applicant USD 7,09,776.3 along with costs of USD 50,000 and INR 11,53,000/- in addition to interest, which the Respondent has failed to pay.

4. Mr.Gandhi, learned Counsel, appears for the Respondent/Judgment Debtor and submits that reply has been filed by the Respondent. Learned Counsel submits, at the outset, that although the Judgment Debtor has participated in the arbitration proceedings, however, in view of Section s11 of the Arbitration and Conciliation Act, 1996, since an Application for the appointment of an arbitrator in an international commercial arbitration could only be filed before The Hon’ble The Chief Justice of India or his designate, this Execution Application is not maintainable as the order dated 22^nd December 2014 suffers from an inherent lack of jurisdiction which goes to the root of the matter and invalidates the proceeding itself including the award passed therein.

5. Mr.Martin appearing for the Applicant submits that he has instructions not to file rejoinder as the matter would be argued on law and opposes this objection submitting that this objection was never raised before the arbitrator nor the order dated 22^nd December 2014 was ever challenged. That, at this belated stage of execution, only to delay the payment of the amounts awarded to the Applicant, this preliminary objection has been taken out and this Court atleast direct the Respondent to make disclosure in terms of Prayer clause (a) and also restrain the Judgment debtor from in any manner, whatsoever, in dealing with or disposing of his assets or properties, movable, immovable, tangible and intangible, till the next date.

6. Mr.Gandhi fairly submits that the application under Section 34 of the Arbitration and Conciliation Act challenging the award dated 21^st January 202