The legal fiction created under Section 36 of the Arbitration and Conciliation Act, 1996 necessitates enforcement of the award under the Code of Civil Procedure, and the jurisdiction for the Execution Case is determined based on the subject matter of the award.

Aggrieved by order dated 04.02.2013 passed in Execution Case No. 08 of 2012 whereby, the Civil Judge, Senior Division No. 1 Hazaribagh has held that the Court at Kolkata has original jurisdiction to entertain the Execution Case and the Court at Hazaribagh can entertain the Execution Case, only if the Execution Case is transferred under Order XXI Rule 6 and 8 C.P.C. to the Court at Hazaribagh, the present writ petition has been filed.

2. The petitioner-Company is registered under the Companies Act, 1956 and one of its offices is situated at Kolkata. The petitioner is engaged in providing finance for purchase of vehicles and other banking services. A loan-cum-hypothecation agreement dated 28.06.2005 was executed between the petitioner and the respondent no.1 for purchase of a vehicle. The respondent nos. 2 is the guarantor for the said loan to the respondent no.1. The loan of Rs.9,57,000/- was given to respondent no. 1 for purchase of motor vehicle bearing No. AL-2513-TASKER, which was to be repaid in 45 installments. The respondents executed one demand promissory note for the amount of Rs.11,97,815/- and respondent no. 1 executed one irrevocable power of attorney. The respondent no. 2guarantor has executed a letter of guarantee also. After the respondent no.1 failed to make payment of the loan amount, the petitioner repossessed the vehicle and sold the vehicle for Rs.4,00,000/-. An Arbitration proceeding was initiated by the petitioner and one Mr. Kamal Chattopadhyay was appointed as arbitrator vide letter dated 21.04.2008. The sole arbitrator made award on 27.06.2008 directing the loanee and the guarantor to pay jointly and severally to the claimant a sum of Rs.8,62,111/- with interest at the rate of 24% per annum from 21.03.2006 till the date of Award and they were further held liable to pay interest at the rate of 18% from the date 25.09.2008 till, payment or realisation. Consequently, the petitioner filed Execution Case No. 08 of 2012 under Section 36 of the Arbitration Act in the Court of Civil Judge, Senior Division No. I, Hazaribagh which has been dismissed as not maintainable.

3. The learned counsel for the petitioner submits that, the object and purpose of the Arbitration and Conciliation Act, 1996 are reflected in provisions contained in Section 5, Section 9, Section 35, Section 36 and Section 42. The various provisions under Arbitration and Conciliation Act, 1996 are intended at minimizing the supervisory role of the Courts in Arbitration proceedings. It is further submitted that, the award made by the arbitrator under the Arbitration and Conciliation Act, 1996 is not a decree under Section 2(2) C.P.C. and Section 19 of the Arbitration and Conciliation Act, 1996 provides that Arbitral Tribunal is not bound by the provisions of the Code of Civil Procedure, 1908 and therefore, the legal fiction created under Section 36 that “the award shall be enforced in the same manner as if it were a decree of the Court” would not mean that the award can be executed only by the Court under whose jurisdiction it was made. Further elaborating his contention, the learned counsel submits that, since the respondents are residing within the territorial limit of the Hazaribagh Court and the subject matter in the Execution Case is situated within the territorial limit of the Hazaribagh Court, the Execution Case filed in the Hazaribagh Court cannot be dismissed as not maintainable.

4. I have carefully considered the rival contentions raised on behalf of the parties and perused the documents on record.

5. In the present case an Arbitration proceeding was initiated vide letter dated 21.04.2008 and notice dated 31.04.2008 was issued to respondents. The arbitrator fixed the place of arbitration at Kolkata. The award dated 27.06.2008 was made and signed at Kolkata. From the claim petition and award dated 27.06.2008, it is apparent that the subject matter of the award was an amount of Rs.8,62,111/with interest due and payable to the petition