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IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
M/S. Magma Leasing Ltd. – Petitioner
Versus
Badri Vishal And Ors. – Respondents
Writ - C No. - 16753 of 2010
Decided On : 18-11-2021
Constitution of India, 1950 - Article 226 - Arbitration Act, 1940 - Arbitration and Conciliation Act, 1996 - Section 36 and 34 - Arbitration - Quash of Order - Enforcement of an arbitral award - Whether an order passed by executing court during course of enforcement of an arbitral award would be amenable to a writ of certiorari under Article 226 of Constitution of India - An award was passed in favour of petitioner and for enforcement of the said award, an application under Section 36 of Act, 1996 was moved - Aforesaid application came to be dismissed by Special Judge, SC/ST Act, due to non- appearance on behalf of applicant. An application for restoration was moved which was also rejected on ground of being barred by limitation - Hence present writ petition was filed.
Finding of the court : All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts - Order passed by the executing court in proceedings for enforcement of an arbitral award under Section 36 of the Act 1996, being a judicial order passed by a civil court of plenary jurisdiction, the same would not be amenable to a writ of certiorari under Article 226 of the Constitution of India.
Result : Petition dismissed
JUDGMENT :
1. Heard Sri C.K. Parekh, learned Senior Counsel assisted by Sri Kumar Ankit Srivastava, learned counsel for the petitioner, and Sri Amit Manohar, learned Additional Chief Standing Counsel.
2. The present petition filed under Article 226 of the Constitution of India principally seeks a writ of certiorari for quashing of the order dated 01.02.2010 passed by the Special Judge, SC/ST Act, Mirzapur in Misc. Case No. 103 of 2008 arising out of Execution Case No. 02 of 2006 (M/s Magma Leasing Limited Vs. Badri Vishal and others.
3. Pleadings of the case indicate that an award dated 30.12.2005 was passed in favour of the petitioner and for enforcement of the said award, an application under Section 36 of the Arbitration and Conciliation Act, 1996 was moved. The aforesaid application came to be dismissed by the Special Judge, SC/ST Act, Mirzapur on 23.02.2008 due to nonappearance on behalf of the applicant. An application for restoration was moved which was also rejected on 01.02.2010 on the ground of being barred by limitation. It is at this stage that the present writ petition was filed.
4. A point at issue, raised at the threshold, is as to whether an order passed by the executing court during the course of enforcement of an arbitral award would be amenable to a writ of certiorari under Article 226 of the Constitution of India.
5. In order to appreciate the controversy, the relevant provisions under the Arbitration and Conciliation Act, 1996, Act, 1996, would be required to be adverted to.
6. The Act, 1996 (Act 26 of 1996) was enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation. The Act which is based on the UNCITRAL Model Law on International Commercial Arbitration, as adopted in 1985 by the United Nations Commission on International Trade Law (UNCITRAL) applies to both international as well as to domestic arbitration.
7. The procedure for enforcement of arbitral awards under the Act, 1996 is provided for under Chapter VIII of the said Act. The relevant provisions for the purpose, as contained under Section 36 of the Act, 1996 are as follows:
(2) Where an application to set aside the arbitral award has been filed in the court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of subsection (3), on a separate application made for that purpose.
(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:
Provided that the court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”
8. In terms of sub-section (1) of Section 36 where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of subsection (2), such 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.
9. It may be worthwhile to notice that under the preceding Act of 1940 (Arbitration Act, 1940), an award had to be filed in the court for making it rule of the court
Provision for enforcement of an award, as per terms of Section 36, having been provided for in same manner as if it were a decree of court, it would follow that court enforcing award would exercise p....
Writ under Article 226 is not maintainable against judicial orders in civil proceedings; supervisory jurisdiction under Article 227 remains available for such cases.
Judicial orders of civil courts are not subject to writ jurisdiction under Article 226; challenges must be made through appeal or revision.
Judicial orders of civil courts are not subject to writ jurisdiction under Article 226; challenges must be made through appeal or revision, affirming the distinct nature of Article 227.
Judicial orders of civil courts are not subject to writ jurisdiction under Article 226; challenges must be made through appeal or revision, with Article 227 providing distinct jurisdiction.
Judicial orders of civil courts are not subject to writ jurisdiction under Article 226, and jurisdiction under Article 227 is distinct.
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