Execution applications under Section 36 of the Arbitration and Conciliation Act are not governed by Section 42, allowing enforcement to be filed in any jurisdiction where the award can be executed.

JUDGMENT

Navin Chawla, J. (Oral)

CM No.10098/2021 (Exemption)

Allowed, subject to all just exceptions.

CM(M) 222/2021

1. This petition has been filed by the petitioner challenging the order dated 17.02.2021 passed by the learned District Judge (Commercial Court), North West District in Execution Civil No.352/2020, Kartike Enterprises v. Chief Executive Officer, Delhi Jal Board, dismissing the application of the petitioner filed under Section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act') on the ground that as objections to the Arbitral Award under Section 34 of the Act have been filed by the respondent are pending before the learned District Judge (Commercial Court), South East District, the execution petition filed later on cannot be entertained by the Court at North West District.

2. The learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in Sundaram Finance Limited v. Abdul Samad and Anr., (2018) 3 SCC 622 and of this Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 579 and on the Order dated 21.01.2021 in EFA(OS)(Comm) 01/2021 titled Union of India v. Atlanta Ltd. & Anr., to submit that the view taken by the learned District Judge in the Impugned Order cannot be sustained. He further places reliance on the judgment of the Calcutta High Court in BLA Projects Pvt. Ltd. v. Asansol Durgapur Development Authority, 2019 SCC OnLine Cal 1868 in support of his contention that Section 42 of the Act will have no application to the Execution Petition filed under Section 36 of the Act.

3. On the other hand, the learned counsel for the respondent has placed reliance on the judgment of the Supreme Court in State of West Bengal and Ors. v. Associated Contractors, (2015) 1 SCC 32 and submits that the Supreme Court has held that Section 42 of the Act would be applicable to any application filed even post the termination of the arbitral proceedings. She submits that an application under Section 36 of the Act being one under Part I of the Act, Section 42 would clearly be applicable to such proceedings. She further submits that the judgment of the Supreme Court in Sundaram Finance Limited (supra) has not taken note of the earlier binding precedent in Associated Contractors (supra) inasmuch as Sundaram Finance Limited (supra) holds that Section 42 would not have any application post termination of the arbitral proceedings, which is contrary to what has been held in Associated Contractor (supra).

4. She further sought to distinguish the judgments of this Court on similar lines as also by submitting that in those cases, the application under Section 34 of the Act was not pending before any Court.

5. I have considered the submissions made by the learned counsels for the parties.

6. Section 42 of the Act reads as under:

"42. Jurisdiction.-Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."

7. On the other hand, Section 36 of the Act provides that an arbitral award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court.

8. In Sundaram Finance Limited (supra), the Supreme Court held that while an a