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ALLAHABAD HIGH COURT
Neeraj Tiwari, J.
India Oil Corporation Ltd. and Anr. – Petitioners
versus
Commercial Court and Anr. – Respondents
Matters Under Article 227 No.7573 of 2022
Decided on 6.9.2023
(A) Arbitration and Conciliation Act, 1996 – Section 34, 85 (2) (a) –Arbitration Act, 1940 – Arbitral proceedings - Applicability of Act of 1996 – From perusal of section 85 (2) (a) of Act it clear that in case arbitral proceedings is commenced before this Act shall continue in Old Act, 1940 unless otherwise agreed between parties – Agreement can be made even before enactment of New Act, 1996 for its applicability – In arbitration clause there is such agreement already present, there is no need to have any new agreement for compliance of Section 85(2)(a) and proceedings can be continued in New Act, 1996. [Paras 31, 37]
(b) Arbitration and Conciliation Act, 1996 – Section 36 – Code of Civil Procedure, 1908 –Sections 2 (2), 47 – Arbitral award – ‘Decree’ – Though the arbitral award can be enforced under Section 36 of New Act alongwith provisions of CPC, but arbitral award is not decree under Section 2(2) of CPC – Objection under Section 47 of CPC filed against arbitral award is not maintainable as same is not decree under Section 2(2) of CPC – Arbitral award can be executed invoking Section 36 of New Act, 1996 alongwith provisions of CPC in same manner as if it is decree of Court – No reason to interfere with impugned orders. [Paras 42, 47, 48]
Result: Petition dismissed.
JUDGMENT
Neeraj Tiwari, J.—Heard Sri Anil Sharma, learned Senior Counsel assisted by Sri P.K. Rai, learned counsel for the petitioners and Sri Manish Goyal, learned Senior Counsel assisted by Sri Pranab Kumar Ganguli, learned counsel for the respondents.
2. Present petition has been filed challenging the order dated 08.08.2022 passed by Commercial Court, Varanasi i.e. respondent no. 1 in Execution Case No. 24 of 2020 (Old Case No. 21/2012) and additional award dated 21.02.2006 passed by Arbitrator in the matter of M/s Vidhyawati Construction Col vs. IOCL and another.
3. Since, only legal question is involved in the present petition and pleadings have been exchanged between the parties, therefore, with the consent of parties, petition is being decided at the admission stage itself.
4. Brief facts of the case are that Original Suit No. 436 of 1989 was filed on 01.07.1989 for appointment of Arbitrator in accordance with provision of Arbitration Act, 1940 (hereinafter referred to as the ‘ Old Act, 1940), which was applicable at that time. Vide order dated 12.8.1991, learned Civil Court appointed Hon’ble Mr. Justice R.P. Singh (Retired) sole arbitrator to decide the dispute. Due to pending litigation proceedings, Arbitration could only commence in the year 2001 and Arbitrator has issued notice dated 07.05.2001. Statement of claim was filed by the respondent no.2 on 24.5.2001 before the Arbitrator upon which petitioner had filed a detailed objection and also counter claim. Arbitrator has passed order dated 14.04.2002 to continue the proceeding as per provision of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘New Act, 1996). Ultimately, arbitration proceeding was completed and award was given on 27.04.2005 partly in favour petitioner and respondents both. After calculating the amount, it was found that respondent has to pay Rs. 7,79,871/- to the petitioner. Thereafter, Arbitrator has sent the original records to Additional District Judge,-IX, Civil Court, Varanasi on the same day i.e. 27.04.2005. Respondent had moved application under Section 33 of the New Act, 1996 for modification of award. Arbitrator has additional the award vide order dated 21.02.2006.
5. The said award was challenged before this Court by filing petition Under Article 227 No. 30461 of 2006, which was dismissed as withdrawn vide order dated 08.05.2012 with liberty to file application under Section 34 of Act, 1996. Application was filed under Section 34 of New Act, 1996, which was registered as Arbitration Case No. 79 of 2012 and the same was dismissed vide order dated 23.03.2013. Against that order, petitioner has preferred First Appeal From Order No. 1584 of 2013, which was also dismissed vide order dated 08.04.2016. As respondent was also aggrieved with the certain observations made in the award, therefore, he has preferred Special Leave to Appeal (C) No. 681 of 2017, which was dismissed vide order dated 20.01.2017 after deleting the certain observations made in the order dated 8.4.2016 passed in First Appeal From Order No. 1584 of 2013. Ultimately, award has attained finality.
6. Respondents have filed Execution Application No. 21 of 2012 (renumbered as Execution Application No. 24 of 2020), in which petitioner has filed objection under Section 47 of CPC and same was rejected vide order dated 08.08.2022. Hence, order dated 08.08.2022 is under challenge before this Court.
7. Aforesaid facts are not disputed between the parties.
8. Sri Anil Sharma, learned Senior Counsel submitted that arbitration proceedings was initiated under Old Act, 1940 and award was given on 27.4.2005. He further submitted that as provided in Section 14 of Old Act, 1940, vide letter dated 15.5.2005, Arbitrator has sent the entire record alongwith the award in a locked and sealed box to the Court of District Judge, Varanasi and also claimed the expenses. After that, Arbitrator became functus officio and having no authority to entertain any application. He also subm
1.Arbitral proceedings - Applicability of Act of 1996 – Section 85 (2) (a) of Act of 1996 clear that in case arbitral proceedings is commenced before this Act shall continue in Old Act, 1940 unless o....
The enforcement of arbitral awards must comply with the Arbitration Act, and objections under CPC are inadmissible once the time for challenging the award under Section 34 has expired.
The enforcement of an arbitral award can be initiated anywhere in the country where the decree can be executed, without requiring a transfer of decree from the court with jurisdiction over the arbitr....
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