A court cannot assume jurisdiction based on party consent if it lacks inherent authority, reaffirming the principle that jurisdiction must be derived from statutory provisions.

J U D G M E N T

A foreign award is under execution before the District Court in E.P. No.97 of 2013, under Section 47 of the Arbitration and Conciliation Act, 1996 , (hereinafter referred to as “the Act”). In the course of the proceedings, question arose regarding the jurisdiction of the District Court to proceed with execution in view of the amendment to as per Act 13 of 2016. As per the amendment, the court having jurisdiction to execute foreign award is the High Court. The amendment came into force with effect from 23.10.2015. As per the impugned order, the District Court affirmed its jurisdiction to proceed with execution. The same is under challenge by the award debtor.

2. The court below upheld its jurisdiction footing on an inter-parte judgment by a Division Bench of this Court in an earlier round in relation :- 2 :-

to the same award. The said Original Petition viz. O.P.(C).2932/17, related to the jurisdiction of the court to direct the award debtor to furnish security for the award amount. In the judgment dated 25.10.2017, this Court observed thus:

“The petitioners herein are entitled to take all or any of the defence available under Section 48 of the Act, but subject to the stage of the proceedings before the II Additional District Court, Kollam.”

3. The learned District Judge was of the opinion that since this Court restricted the right of the award debtors to raise defences which could be urged from that stage alone, the award debtors are not entitled to agitate on the issue of jurisdiction.

4. Heard Sri.T.Krishnanunni, the learned Senior Counsel appearing on behalf of the petitioners- award debtors and Sri.T.R.Aswas, learned counsel appearing for the respondent-award creditor.

5. Evidently, the question of jurisdiction has not been adjudicated upon by the court below. The court has confined itself to the observation by the :- 3 :-

Division Bench of this Court in O.P.(C).2932/17. The finding of jurisdiction is sought to be supported by the learned counsel for the respondent on two grounds. Firstly, that the petitioners had acceded to the jurisdiction of the District Court; that in the earlier proceedings before this Court, they did not challenge the jurisdiction of the District Court to entertain the execution petition. Secondly, as noticed by the court below, the stage from which further proceedings are to be continued was specified by this Court in the judgment in O.P(C).2932/17 which binds both parties. Therefore, it is not open for the petitioners to raise a challenge regarding jurisdiction of the District Court to proceed with execution. I am afraid that I cannot, for the reason given below, agree with the submissions of the learned counsel.

6. As pointed out by the learned Senior Counsel appearing for the petitioners, it is trite that a decree, order or award passed by a court which lacks inherent jurisdiction, is void. Mere agreement or consent cannot confer jurisdiction on :- 4 :-

a court which lacks inherent jurisdiction to entertain the lis. InThe United Commercial Bank Ltd. v. Their Workmen [ AIR 1951 SC 230 ],the Apex Court held that when the question is of the jurisdiction of the Tribunal to make an award, acquiescence or consent cannot confer jurisdiction. InKiran Singh and others v. Chaman Paswan and others [ AIR 1954 SC 340 ], the Apex Court held that a defect of jurisdiction cannot be cured even by consent of the parties. InMathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeejeebhoy [1970 (1) SC 613], the Apex Court held that question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. The Court further held:

“........ If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res :- 5