Jurisdiction of the Commercial Court cannot be conferred by consent, and stays of execution must be clearly established. Section 9 of the Arbitration Act does not replace execution procedures.

ORDER

[VIA VIDEO CONFERENCING]

C.Ms. No. 17876/2021, 17877/2021 & 17878/2021 (all for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The applications are disposed of.

FAO(OS) (COMM) 82/2021 and C.M. No. 17879/2021 (for placing on record additional documents)

3. This appeal, under Section 13 (1A) of the COMMERCIAL COURTS ACT , 2015 read with Section 37 (1)(b) of the Arbitration and Conciliation Act, 1996, impugns the order dated 18th May, 2021 of the Commercial Division in O.M.P. (Comm) No.140/2021 preferred by the respondent under Section 34 of the Act with respect to the Arbitral Award dated 14th July, 2017 and Additional Award dated 28th September, 2017, of issuing notice of I.A. No. 6459/2021 filed by the appellant (the respondent before the Commercial Division) for directions, for 4th August, 2021.

4. The counsel for the respondent (the applicant before the Commercial Division) appears on advance notice.

5. The position which emerges is, (a) that on Section 34 application being filed by the respondent with respect to the Arbitral Award, whereunder according to the appellant a sum of over Rs.1.61 crores is due to the appellant from the respondent as of today, the Commercial Court before which the said application was filed, vide order dated 26th March, 2018 granted stay of execution subject to deposit by the respondent in the Commercial Court, of 50% of the entire awarded amount as of then, in the form of FDR or bank guarantee; (b) the respondent, in compliance of the aforesaid order is stated to have deposited a sum of Rs.44 lacs odd in the Commercial Court; (c) the appellant took objection before the Commercial Court, to the jurisdiction of the Commercial Court to entertain the Section 34 application; (d) the Commercial Court held that it was within its jurisdiction to entertain the Section 34 application; (e) aggrieved therefrom, the appellant preferred a revision petition before this Court; (f) though the order in the said revision petition has not been filed along with this appeal but the counsels state that during the hearing of the revision petition, a consensus was arrived at, that the Section 34 application filed by the respondent be transferred from the Commercial Court to the Commercial Division of this Court and pursuant to which, the Section 34 application was so transferred to this Court and came to be registered as O.M.P. (Comm.) No.140/2021; (g) the appellant filed I.A. No.6459/2021 in O.M.P. (Comm.) No.140/2021 before the Commercial Division of this Court, for directions to the respondent to deposit the balance Award amount in this Court after deducting the sum of Rs.44 lacs odd deposited before the Commercial Court and, (h) the Commercial Division, vide the impugned order, issued notice of the said application for 4th August, 2021.

6. The grievance of the appellant is, that the Commercial Division of this Court, instead of immediately directing the respondent on the same day on which I.A. No.6459/2021 had come up before the Commercial Division for consideration, to deposit the balance Award amount, issued notice of the application for 4th August, 2021.

7. We have considered this appeal, without going into the question of maintainability thereof.

8. Having not found on the record anything to show that the Commercial Division of this Court had stayed the execution of the Award, we have enquired so from the counsel for the appellant.

9. The counsel for the appellant contends that though the Commercial Division has not granted any stay of execution of the Arbitral Award but the Commercial Court before which the Section 34 application