Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Petitioner:S. Saravanam, Advocate.
For the Respondents:K. Rajendra Prasad, Advocate.

IMPORTANT POINT
An application for execution cannot be presented to an Arbitrator by holder of Award under Order XXI, Rule 10 of CPC. On ground that Arbitral Tribunal is Court which passed decree.

Headnote:Civil Procedure Code, 1908— Sections 37, 38 39(1), 41, 43, 44A— Order XXI— Rules 5, 6 and 10—Arbitration and Conciliation Act, 1996—Sections 19(1), 36 and 58—Territorial jurisdiction of Civil Court—Arbitral award—Passed in Mumbai by Arbitral—Tribunal—Execution petition filed by award holder before City Civil Court at Chennai as judgment-debtor residing within territorial jurisdiction at City Court—City Civil Court Chennai returned execution petition on ground that decree holder cannot maintain execution petition without transmitting award from appropriate Court—Provisions of Section 38 and Order XXI— Rules 5, 6 and 10 of CPC cannot be applied to Arbitral Tribunal—Award of Arbitral Tribunal deemed to be a decree of Civil Court under Section 36 of Act—No deeming fiction to hold that Court within whose jurisdiction arbitral award passed should be taken to be Court which passed decree—In absence of any provision in Act, making Arbitral Tribunal a Court which passed decree, Executing Court cannot demand transmission from any other Court or to order transmission to any other Court.
       Held: If no Application for execution can be filed before the Arbitral Tribunal, by treating the Arbitral Tribunal as the Court which passed the decree, the Arbitral Tribunal cannot also order the transfer of the decree (or award) to any other Court for its execution. Similarly, there is no provision either in the Code or anywhere else, to treat a Court, within whose jurisdiction the Arbitral proceedings took place, as the Court which passed the decree. It is only when a Court within whose jurisdiction the arbitral award was passed, is taken to be the Court which passed the decree within the meaning of Section 37 and Order 21, Rule 10 of the Code that the award holder would be entitled to seek transmission from that Court.
       While the award passed by an Arbitral Tribunal is deemed to be a decree of a Civil Court under Section 36 of the 1996 Act, there is no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed, should be taken to be the Court which passed the decree. Therefore, the whole procedure of filing an Execution Petition before the Court within whose jurisdiction the arbitral
       award was passed, as though it is the Court which passed the decree, is pathetically misconceived.
       There is no provision under the 1996 Act (i) either to make the Arbitral Tribunal come within the meaning of the expression “Court which passed the decree”; (ii) or to provide for the transmission of the awards from one Court to another for the purpose of execution. Complicating the issue further, it appears that the award holders also seek a certificate from this Court that the award has not been satisfied by the award debtor. It is only a Court which passed the decree that would be competent and that would be able to give a certificate of the said nature. The Court which passed the decree would always know the extent to which the decree got satisfied through the same Court. It would also know the extent to which the decree was satisfied in some other Court to which the decree was transmitted, in view of the provisions of Section 41 of the Code. But, in respect of an arbitration award, no Court can know whether an award was partly or fully satisfied, unless it had the opportunity to execute the award by itself.
       In the absence of any provision in the 1996 Act, requiring a Court to pass a decree in terms of the award (except in terms of Section 34) and in the absence of any provision in the 1996 Act making the Arbitral Tribunal a Court which passed the decree and in the absence of any provision anywhere making the Court within whose jurisdiction an award was passed as the Court which passed the decree, it is not open for any executing Court (i) either to demand transmission from any other Court; (ii) or to order transmission to any other Court. (Paras 18, 19, 24 and 25)