IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22956 of 2007 With SPECIAL CIVIL APPLICATION No. 22957 of 2007 With SPECIAL CIVIL APPLICATION No. 22958 of 2007 With SPECIAL CIVIL APPLICATION No. 22959 of 2007 With SPECIAL CIVIL APPLICATION No. 22960 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE A.J. DESAI =========================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? YES Whether this case involves a substantial
4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?YES
5 Whether it is to be circulated to the civil judge?
YES ========================================= I O C LTD - Petitioner Versus DURGA ROADLINES HARISH CHANDULAL THACKER =========================================
Appearance in SCA No. 22956 of 2007:
MR MANISH R BHATT, SR. COUNSEL assisted by Mrs. Mauna Bhatt for Petitioner MR NALIN K THAKKER for Respondent
Appearance in SCA Nos. 22957 to 22960 of 2007:
MR MANISH R BHATT, SR. COUNSEL assisted by Mrs. Mauna Bhatt for Petitioner MR MEHUL SHARAD SHAH for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE A.J. DESAI Date : 08/05/2012 CAV COMMON JUDGMENT
1 By way of the present petitions under Articles 226 and 227 of the Constitution of India, the judgment debtor-Indian Oil Corporation Limited has challenged the Order dated 21st July, 2007 passed by the learned Additional District Judge, Gandhidham– Kachchh (Gujarat) below Application Exhibit-17 in Civil Misc. (Execution) Application No.2 of 2003; Application Exhibit-14 in Civil Misc. (Execution) Application No.7 of 2003; Application Exhibit-14 in Civil Misc. (Execution) Application No.6 of 2003; Application Exhibit-13 in Civil Misc. (Execution) Application No.8 of 2003 and Application Exhibit-13 Civil Misc. (Execution) Application No.5 of 2003 by which the learned Additional District Judge has refused to entertain the applications by which objections were raised by the petitioner about the jurisdiction of the court so far as executing the Award dated 12.9.1999 passed by the Arbitrator who was appointed pursuant to an agreement entered into between the petitioner - Corporation as well as the respective respondents – contractors.
Since the facts of each case are similar and question of law involved in the matter is common in nature, these petitioners were heard together and finally decided by this common judgment.
2 Brief facts arising from the case are as under:
2.1 The present petitioner i.e. Indian Oil Corporation Limited is a company registered under the provisions of the Indian Companies Act, 1956, which is a public sector undertaking of the Government of India, entered into Bulk Transport Agreement with number of transport operators on 23.10.1992. Pursuant to the disputes and differences arose between the parties to the agreement, the matter was referred to the Arbitrator as per Clause 36(a) of the said Agreement. By Award dated 12.11.1999, the sole arbitrator accepted certain claims of the respondents and denied the rests. By the said Award, disputes and differences of about 67 transport operators were decided and certain amount for each of the transport operators was fixed by the arbitrator.
2.2 To execute the Award, the respondents - Judgment Creditors filed separate execution applications, being Civil Misc. (Execution) Application No. 2 of 2003; Civil Misc. (Execution) Application No. 7 of 2003; Civil Misc. (Execution) Application No. 6 of 2003; Civil Misc. (Execution) Application No.8 of 2003 and Civil Misc. (Execution) Application No.5 of 2003 in the court of District Judge, Kachchh at Gandhidham, and prayed that the award shall be executed since it has become a decree under the provisions of the Arbitration and Conciliation Act, 1996. The petitioner filed its Objections in all the applications and raised the dispute with regard to the jurisdiction of the court since one of the conditions in the agreement was that any dispute or difference arises from the contract, legal proceedings shall be initiated in the concerned courts in the City of Bombay of Maharashtra State only. Along with the said applications, the petitioner produced the Award passed by the Arbitrator as well as the Bulk Transport Agreement before the Executing Court.
2.3 The learned Additional District Judge Gandhidham – Kachchh (Gujarat) after appreciating several decisions cited by both the parties, came to the conclusion that the District Court at Gandhidham, Kachchh (Gujarat) has jurisdiction to entertain the Execution Applications filed by the respondents - contractors.
3 The petitioner being aggrieved and dissatisfied with the the said judgment and order dated 21st July, 2007 has challenged the same on several grounds and mainly relying on Clause 36(h) of the Bulk Transport Agreement which was entered into between the parties on 23.10.1992.
4 The most relevant and important fact in the case is that the Award dated 12th November, 1999 passed by the Sole Arbitrator is not challenged by either of the parties and has become final.
5 Before dealing with the arguments advanced by learned Advocates for the parties, it would be proper to reproduce Clause 36(a) of the Bulk Transport Agreement which was entered into between the parties. The relevant Clause with regard to the arbitration is reproduced here-in-below:
“36.(a) Any dispute or difference of any nature whatsoever, any claim, cross claim, counter-claim or set off by the Corporation against the contractor/s regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this Agreement shall be referred to the sole arbitration of the Director (Marketing) of the Corporation or to some office of the Corporation who may be nominated by the Director (Marketing). If for any reason Director (Marketing) is unable or unwilling or refuses or fails to act as Arbitrator or nominate an Arbitrator, then the matter shall not be referred to arbitration at all. The contractor/s will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the Corporation or that he has dealt with the matters to which the contract relates or that in the course of his duties as Officer of the Corporation he had expressed views on all or any other matters in dispute or difference. In the event of the arbitrator to whom the matter's originally referred, being transferred or vacating his office or being unable to act for any reason, the Director (Marketing) as aforesaid at the time of such transfer or vacation of office or inability to act may in the discretion of the Director (Marketing) designate another person to act as arbitrator in accordance with the terms of the Agreement to the end and intent that the original arbitrator shall be entitled to continue the arbitration proceedings notwithstanding his transfer or vacation of office as an Officer of the Corporation if the Director (Marketing) does not designate another person to act as arbitrator on such transfer, vacation of office on inability of original arbitrator. Such personal shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of his contract that no person other than the Director (Marketing) or a person nominated by such Director (Marketing) of the Corporation as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement subject to the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause.”
6 As stated here-in-above, the parties had entered into the agreement, which includes the Clause of `Arbitration' on 23rd October, 1992 i.e. prior to the Arbitration and Conciliation Act, 1996 (26 of 1996) came into force on 22.8.1996. It appears from the Award that the disputes and differences between the parties were referred to the Arbitrator on 27.2.1998 i.e. after the commencement of the Arbitration and Conciliation Act of 1996.
7 In the latter part of Clause 36(a) of the agreement, the parties agreed that award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration Act, 1940 or any statutory modification of re-enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause.
In the case of Thyseen Stahlunion GMBH vs. Steel Authority of India Limited, as reported at AIR 1999 SC 3923, the Apex Court has held that the parties can agree to the applicability of the new Act even before the new Act comes into force and the old Act is still holding the field. The Apex Court has observed in paragraph44 of the said judgment which is reproduced here-in-below.
“44. Parties can agree to the applicability of the new Act even before the new Act comes into force and when the old Act is still holding the field. There is nothing in the language of S. 85(2)(a) which bars the parties from so agreeing. There is, however, a bar that they cannot agree to the applicability of the old Act after the new Act has come into force when arbitral proceedings under the old Act have not commenced though the arbitral agreement was under the old Act. Arbitration clause in the contract in the case of Rani Constructions (Civil) Appeal 61 of 1999) uses the expression "for the time being in force" meaning thereby that provision of that Act would apply to the arbitration proceedings which will be in force at the relevant time when arbitration proceedings are held. We have been referred to two decisions one of Bombay High Court and the other of Madhya Pradesh High Court on the interpretation of the expression "for the time being in force" and we agree with them that the expression aforementioned not only refers to the law in force at the time the arbitration agreement was entered into but also to any law that may be in force for the conduct of arbitration proceedings, which would also include the enforcement of the award as well. Expression "unless otherwise agreed" as appearing in S. 85(2)(a) of the new Act would clearly apply in the case of Rani Construction in Civil Appeal No. 61 of 1999. Parties were clear in their minds that it would (be) the old Act or any statutory modification or re-enactment of that Act which would govern the arbitration. We accept the submission of the appellant Rani Construction that parties could anticipate that the new enactment may come into operation at the time the disputes arise. We have seen S. 28 of the Contract Act. It is difficult for us to comprehend that arbitration agreement could be said to be in restraint of legal proceedings. There is no substance in the submission of respondent that parties could not have agreed to the application of the new Act till they knew the provisions thereof and that would mean that any such agreement as mentioned in the arbitration clause could be entered into only after the new Act had come into force. When the agreement uses the expressions "unless otherwise agreed" and "law in force" it does give option to the parties to agree that new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that agreement has to be entered into only after coming into force of the new Act.”
8 In view of the identical clause in the agreement in the case of Thyseen Stahlunion GMBH (supra) and in the present case, I am of the opinion that, the provisions of the Arbitration and Conciliation Act, 1996 would be applicable since the arbitration proceedings were initiated after 1996 and completed thereafter and parties of the contract had agreed for the same.
9 Heard Mr. M.R.Bhatt, learned Senior Counsel assisted by Mrs. Mauna Bhatt for the petitioner and Mr. Nalin K. Thakker and Mr. Mehul Sharad Shah for respondents.
10 The main contention raised by Mr. M.R. Bhatt, learned counsel for the petitioner is with regard to the jurisdiction of the court situated at Gandhidham in Kuchchh area of Gujarat State in which the judgment creditors have filed the execution proceedings. In view of Clause 36(h) of the agreement, only court/s of Bombay city has jurisdiction to entertain any legal proceedings. For dealing with this argument, Clause 36(h) is reproduced here-in-below:
“(h) The parties hereby agree that the courts in the city of BOMBAY alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under the Agreement and any award or awards made by the sole arbitrator hereunder shall be filed in the concerned courts in the city of Bombay of Maharashtra State only.”
By elaborating the arguments, he has submitted that the parties had agreed that the courts in the city of Bombay alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under this agreement and, therefore, the respondents should have filed applications for executing the award in the courts situated in the city of Bombay, State of Maharashtra. He has further submitted that it was also further clarified in Clause 36(h) of the agreement that any award or awards made by the sole arbitrator pursuant to the award shall be filed in the concerned court in the city of Bombay of Maharashtra State only and, therefore, the Trial Court ought to have accepted the objections raised by the petitioner and ought to have dismissed the execution applications filed by the respondents on this sole ground. To support his contention, he has relied upon the following decisions:
i) in the case of New Moga Transport Company v. United India Insurance Co. Ltd. and others, reported at AIR 2004 SC 2154;
ii) in the case of M/s Hanil Era Textiles Limited v. M/s Puromatic Filters (P) Ltd., reported at AIR 2004 SC 2432;
iii) in the case of M/s Shiram City Union Finance Corporation Ltd vs. Rama Mishra, reported at AIR 2002 SC 2402;
iv) in the case of Rite Approach Group Ltd vs. M/s Rosoboronexport, reported at AIR 2006 SC 401;
v) in the case of Jindal Vijayanagar Steel (JSW Steel Ltd) v.
Jindal Praxair Oxygen Co. Ltd., reported at (2006) 11 SCC 521; and
vi) in the case of Gour Chandra Dutta v. State of West Bengal & Anr., reported at 2004 (2) Arb. LR 454 (Calcutta).
11 On the other hand, Mr. Mehul Sharad Shah, learned Advocate for the respondents has submitted that under Section-36 of the Arbitration and Conciliation Act, 1996, the award can be enforced under the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of court. He has further submitted that under Section-20 read with Section-38 and Order XXI R.10 of the Civil Procedure Code (5 of 1908) the Judgment Creditor has right to execute a decree where the Judgment Debtor carries his business or his part of business is situated within the local jurisdiction of the Court wherein the execution proceedings can be initiated. In support of his contention, he has relied upon the following decisions:
i) in the case of Patel Roadways Limited, Bombay v. M/s Prasad Trading Company, reported at AIR 1992 SC 1514;
ii) in the case of M/s I.T.I. Ltd vs. District Judge, Allahabad and others, reported at AIR 1998 Allahabad 313; and
iii) in the case of I.C.D.S. Ltd vs. Mangala Builders Pvt Ltd and others, reported at AIR 2001 Karnataka, 364.
12 Perused the judgment passed by the learned Trial Court as well as the documents produced along with the petition and the affidavit-in-reply filed by the respondents. The petitioner has produced an order passed by the Additional Senior Civil Judge, Gandhidham, below Exhibit-8 in Special Execution Application No.18 of 2005 by which the learned Additional Senior Civil Judge, Gandhidham, has held that the Gandhidham Court had no jurisdiction to execute the award and, therefore, the same was returned to the applicant for presenting the same before the proper court. It is the case of the respondents that the learned Senior Civil Judge of Gandhidham ought not to have decided the matter since the execution application was pending in the Court of Additional District Judge since 2003. This court is not concerned with the pronouncement made by the learned Civil Judge, Senior Division, Gandhidham, since the learned Civil Judge has observed in its order that the “Principal Civil Court” as defined under Section 2(e) of the Arbitration and Conciliation Act, 1996 is a “District Judge”. This order is not under consideration of this Court in the present proceedings and, therefore, the same is not dealt with.
13 For proper appreciation of the arguments advanced by the parties, it would be desirable to recast several provisions of The Arbitration Act, 1940 as well as the Arbitration and Conciliation Act, 1996. The question involved in the present petitions are with regard to enforcement of the Award. Section 17 of The Arbitration Act, 1940 and Section 36 of the Arbitration and Conciliation Act, 1996 are relevant in the present case.
Section-17 of The Arbitration Act, 1940 is reproduced here- in-below:
“17. Judgment in terms of award-Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award, has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.”
Section 36 of the Arbitration and Conciliation Act, 1996 is reproduced here-in-below:
“36. Enforcement-Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.”
14 It is the case of the petitioner that as per Clause 36(h) of the Agreement, only Bombay court has jurisdiction to entertain any application arising from the agreement. He has submitted that in the case of New Moga Transport Company (supra) as per Section 28 of the Indian Contract Act, 1872, the parties can agree to confer jurisdiction upon a Court which is otherwise not legally barred. He has submitted that in the present case, the parties have agreed for Bombay jurisdiction and, therefore, the learned Trial Court ought to have accepted the objections raised by the petitioner.
In case of M/s Hanil Era Textiles Ltd. (supra), as per his submission, it has been held that where two courts or more have jurisdiction under the provisions of the Code of Civil Procedure to try a suit or a proceeding, an agreement between the parties that the dispute between the parties shall be tried in one of such Courts is not contrary to public policy. In the aforesaid case he has relied upon Clause-17 of the agreement which in his submission is similar to Clause-36(h) of the agreement in the present case and, therefore, only the Bombay Court has jurisdiction to entertain any proceedings arising from the said agreement.
Similar is the ratio laid down in the case of M/s Shriram City Union Finance Corporation Limited (supra).
He has submitted that in the case of Rite Approach Group Limited (supra), the Apex Court has held that if there is a specific clause about jurisdiction of a Court to decide the dispute, the other court has no jurisdiction to decide the dispute.
In the judgment in Jindal Vijayanagar Steel (JSW Steel Limited) (supra), as per his submission, the Apex Court has held that as per Section-20 of the Civil Procedure Code read with Clause 36(h) of the Agreement, the Bombay High Court has jurisdiction to entertain and try the execution proceedings.
He has relied upon a decision of the Calcutta High Court in the case of Gour Chandra Dutta (supra), by which the learned Single Judge of the Calcutta High Court has held that an Arbitration Award can be submitted for execution before such a Court which would have ordinary jurisdiction to entertain the suit covering the subject matter of the Arbitration agreement and in view of that statutory provisions of Section-36 read with Section 2(e) of the Arbitration Act, 1996, the District Judge at Gandhidham has no jurisdiction to entertain the execution applications.
15 On the other hand, Mr. Mehul Shah, learned Advocate for the respondents submitted that asper the decision of the Apex Court in the case of M/s Patel Roadways Limited, Bombay (supra), under Section 20 of the Code of Civil Procedure, parties can file suit within the local limits of a court of jurisdiction, the defendant at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. He has submitted that as per the Explanation to Section-20 of the CPC, the petitioner being a Corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. He has submitted that in the present case as per the agreement the work was carried out within the local jurisdiction of Gandhidham court as well as its subordinate office is also situated within the local limits of Gandhidham city in which the execution proceedings have been initiated.
16 By catena of decisions of the Apex Court it has been held that unless the time for making an application to set aside the arbitral award under Section-34 of the Arbitration and Conciliation Act, expires or if such an application having been made and refused, the award shall not be enforced. It has also been held that the award shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court. Now considering the Clause 36(h) of the agreement which was entered into between the parties in 1992, it was agreed that, any application or other proceedings in respect of anything arising under this agreement, shall be decided by a court situated in the city of Bombay alone. I am of the opinion that when the award is passed by the sole Arbitrator, the dispute with regard to the reasons assigned by the Arbitrator for awarding certain amount in favour of the contractor cannot be treated as dispute arising from this contract and, therefore, the Execution Applications cannot be treated as “any application” or “ other proceedings” in respect of anything arising from the said agreement. The latter part of the Clause 36(h) is with regard to filing of the award or awards made by the sole arbitrator in the court. Under Section-14 of the Arbitration Act, 1940, the Arbitrator after following the procedure under the said section, had to file the award in the court. Section 17 of the Arbitration Act, 1940 empowers the court to pronounce the judgment according to the award subject to the conditions which are mentioned therein and upon the judgment was pronounced, the court had to draw a decree according to the judgment.
17 It is clear from Section 36 of the Arbitration Act, 1996 that the award itself is treated as a decree and, therefore, there is no need to file the award for pronouncement of the judgment or drawing of a decree as per the award. The intention of the parties in the agreement in the year 1992 was only to file the award in the concerned court in the city of Bombay so that the judgment can be pronounced and decree can be drawn accordingly. In case of non- applicability of Arbitration Act, 1996, post-procedure of declaring award, filing of award, pronouncement of judgment, drawing of a decree would arise under The Arbitration Act, 1940. The question of transferring decree, for it's execution, etc. would take place under the provisions of Code of Civil Procedure if a court pronounces the decree as per the award under Section -17 of The Arbitration Act, 1940. In the facts of present case, the entire procedure might have taken place if the Arbitration Act, 1996 would not have been made applicable. The parties to the agreement have voluntarily agreed to give go-by to The Arbitration Act, 1940 if some new Acts or Rules are enacted. The intention of the parties under Clause 36(h) to restrict jurisdiction of the Court was only upto filing the award. Subsequent events like execution, enforcement of decree, transferring the decree, etc. would have been taken place under the provisions of the C.P.C.
18 The parties have agreed that the award of the Arbitrator shall be final, conclusive and binding on all parties to the agreement subject to the provisions of The Arbitration Act, 1940 or any statutory modification or re-enactment thereof, the provisions of the Arbitration and Conciliation Act, 1996 would be applicable in the present case.
19 As far as Section-36 of the Arbitration and Conciliation Act, 1996 is concerned, it has been held by the Apex Court in the case of Morgan Securities and Credit Pvt Ltd. v. Modi Rubber Ltd., reported at AIR 2007 SC 683, as under:
“40 An award under the 1996 Act indisputably stand on a different footing vis-a-vis an award made under the Arbitration Act, 1940. Whereas under the 1940 Act, an award was required to be made a rule of the court to make it enforceable; the 1996 Act, however, raises a legal fiction. When an award is made, an application under Section 34 is required to be filed questioning the validity thereof. Once such an application is filed, it remains under suspension in the sense that it would not be enforceable. Only on expiry of the period specified in Section 34 to challenge an award or when such objection is refused, the same would become enforceable. Section 36 merely specifies as to how such an award can be enforced by laying down that it can be enforced as if it were a decree.
41 The legal fiction created under Section 36 has, therefore, a limited application. An award is, thus, to be treated to be a decree even without intervention of the court only for the purpose of its enforceability.”
20 It is an undisputed fact that the award passed by the Arbitrator has become final and, therefore, the award is required to be treated as if a decree passed by the Court.
21. In the case of Khaleel Ahmed Dakhani v. Hatti Gold Mines Co. Ltd., reported at AIR 2000 SC 1926, the Apex Court while considering Section-20 of the CPC and Sections 34 and 36 of the Arbitration and Conciliation Act, 1996, has held that though there was a clause in the contract between the parties with regard to the jurisdiction of a particular court, the other court has jurisdiction since the office of the judgment debtor was situated within the jurisdiction of that court, that court has also jurisdiction to entertain the execution application. In the case of Khaleel Ahmed Dakhani (supra) the facts are different than the facts of the present case. In that case, the judgment debtor had filed the execution application at a place where the office of the judgment creditor was situated while under Clause-35 of the Contract Act, the parties have agreed for some other courts. In that case, the judgment debtor had challenged the award under Section 34 of the Act before a court and the execution applications were filed by judgment creditor in other court. While considering the judgment of Patel Roadways Limited (supra), the Supreme Court has observed as under:
“6 In view of the decision of this Court in Patel Roadways Limited Bombay v. Prasad Trading Company, (1991) 4 SCC 270 : (1992 AIR SCW 4621 : AIR 1992 SC 1514), it cannot be said that the Principal District Judge, Raichur had no jurisdiction to entertain the matter. But then the question arises, as rightly posed by the High Court, if in the given facts and circumstances of the case, could the Principal District Judge, Raichur had made the orders which are impugned, particularly, when it was brought to his notice pendency of the proceedings under Section 34 of the Act in the Court of Principal City Civil Judge, Bangalore where the appellant itself had filed a CAVEAT under Section 148A of the Code and also an application under Section 94 of the Act seeking interim relief. Learned Principal District Judge, Raichur also did not take notice of clause 35 of the contract which constituted arbitration agreement between the parties which specifically provided that only the Courts in Bangalore would have jurisdiction to entertain any claim for enforcement of the award. Principal District Judge, Raichur had no doubt jurisdiction in the matter but his holding that the Principal City Civil Judge, Bangalore would have no jurisdiction does not commend to us. It cannot always be said, in view of Section 20 of the Code that only one Court will have jurisdiction to try the suit. It is not that the Principal City Civil Court. Bangalore is not a Court within the meaning of Section 2(e)5of the Act. Whether Principal City Civil Judge, Bangalore has jurisdiction in the matter or not is still pending with him which proceedings were filed earlier in time than the execution application by the appellant in the District Court at Raichur. The award had not attained finality. In these circumstances we are of the view that the Principal District Judge, Raichur should not have entertained the application for execution and ordered attachment of movable properties of the respondents. The High Court referred to the concession by both the parties that all the applications under the Act had to be treated as original suits and if the Court finds that it had no jurisdiction to entertain, it cannot dismiss the suit but has to return the same for the presentation to the proper Court. Whatever may be the concession of the parties, we are of the view in the circumstances of the present case Principal District Judge, Raichur should have stayed his hands and should not have entertained the execution application by the appellant. High Court took a correct view of the matter and rightly set aside the impugned orders.
22 Now considering the provisions of Section-20 read with Section-38 and Order XXI R.10 of the CPC, the decree may be executed by the court which passes it or by the court it is sent for execution. As stated here-in-above, neither Bombay court nor Gandhidham court has drawn the decree.
23 It is an undisputed fact that the subordinate office of the petitioner Corporation is situated within the jurisdiction of the District Court at Gandhidham, Gujarat, and, therefore, under Section-20 of the CPC, the Gandhidham Court has jurisdiction to entertain such application. In the present case, the award itself is a decree and as stated in Clause-36 of the agreement it can be executed as per the provisions of the CPC and, therefore, under Section-20 read with Section-38 and Order XXI Rule 10 of the CPC, the court at Gandhidham has jurisdiction to entertain the execution application.
The decisions cited by Mr. Bhatt, learned Senior Counsel for petitioner in the case of New Moga Transport Company (supra) is with regard to filing of a suit having jurisdiction. While in the present case, the award in the form of decree is already in existence and, therefore, the said decision would not be applicable in the present case. Similar is the case of M/s Hanil Era Textiles Limited (supra) wherein the only question was under consideration by the Apex Court was with regard to the provisions of Section-28 of the Indian Contract Act read with Section-20 of the CPC. The peculiarity of the present case is that the award is not in dispute and, therefore, the award has become a decree and as per the provisions of the CPC the decree can be executed by any of the courts having jurisdiction to try the suit. Therefore, the said decision is not helpful to the petitioner– Corporation. The decision in the case of M/s Shiram City Union Finance Corporation Ltd (supra) is also with regard to Section- 28 of the Contract Act and is not with regard to the award passed under the provisions of the Arbitration Act which has become a decree as per Section-36 of the Arbitration and Conciliation Act, 1996. In the case of Rite Approach Group Limited (supra) the dispute with regard to the jurisdiction arose prior to appointment of arbitrator and, therefore, the said decision is not applicable in the facts of the present case. The fact in the case of Jindal Vijayanagar Steel (JSW Steel Ltd) (supra) is not comparable in the facts of the present case and, therefore, the said decision is also no avail to the petitioner.
24 In view of the above the discussion, I am of the opinion that the learned Additional District Judge, Kachchh at Gandhidham, Gujarat, has jurisdiction to entertain the Execution Applications filed by the respondents pursuant to the Award dated 12.9.1999 passed by the Arbitrator and no illegality or infirmity in the judgment and order passed by the learned Trial Court is found.
25 At this stage it is desirable to note that while admitting the matters, this Court vide order dated 5.12.2007 observed that the petitioner shall file an undertaking to the effect that in case the petitions are dismissed, the petitioner shall make payment of the amount as per the Arbitration Award forthwith subject to the verification and conditions which are imposed by the Arbitration Award. The undertaking has been filed by the Senior Manager, Operations, of the petitioner Corporation on 17.12.2007 in terms of the order passed this Court on 5.12.2007 which is on record of each of the present case.
26 In the result, all the aforesaid petitions must fail and are dismissed accordingly. Rule is discharged in each petition. There shall be no order as to costs. The petitioner- Corporation is directed to comply with the Undertaking filed by the Senior Manager, Operations, of the Corporation dated 17.12.2007 forthwith.
(A.J. DESAI, J.) pnnair Date: 08.05.2012 After pronouncement of judgment, learned Senior Counsel Mr. Manish Bhatt, for the petitioner has requested to extend the ad interim relief granted by this Court vide order dated 6.9.2007 and is extended till final hearing of the petitions vide order dated 5.12.2007. As stated here-in-above, the Senior Manager, Operations of the Corporation has filed an Undertaking to the effect that in case the petitions are dismissed, the petitioner shall make payment of the amount as per the Arbitration Award forthwith subject to verification and conditions which are imposed by the Arbitration Award. However, as requested, the stay is extended for a further period of 8 weeks from today on condition that the petitioner shall deposit the decreetal amount with the Registry of this Court on or before 11th June, 2012.
(A.J. DESAI, J.) pnnair