At, High Court of Madhya Pradesh
By, THE HONOURABLE MR. JUSTICE N.K. MODY
For the Appearing Parties: Pranshu Dad, Advocates.
(1.) Being aggrieved by the order dated 24/1/2003 passed by VII ADJ, Indore in Execution Case No. 18-A/02, whereby the prayer of the petitioner for transferring the award was dismissed present petition has been filed.
(2.) Short facts of the case are that an award was passed against the respondents on 01/11/2000 by Mr. Lalit Inani, advocate, 7-C, Seth Apartment, Gita Bhawan, Indore, whereby respondents were directed to pay a sum of Rs.4,14,700/- along with interest @ 16% pa w.e.f. 25/09/2000. After the award an Execution Petition was filed under Section 36 of Arbitration and Conciliation Act (which shall be referred hereinafter as 'A and C Act') read with Order XXI Rule 11 and Section 39 and 40 of CPC, wherein it was alleged that respondents are having property within local jurisdiction of New Delhi, therefore, decree be sent for execution along with certificate for non-satisfaction. After hearing the petitioner, by the impugned order learned trial Court dismissed the application, against which present petition has been filed.
(3.) Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Executing Court is illegal, incorrect and deserves to be set aside. It is submitted that the learned Court below has dismissed the application only on the ground that since the respondents are resident of Delhi, therefore, execution can be filed for the satisfaction of the award at Delhi itself in view of provisions of Section 20 of CPC. It is submitted that since the award was passed at Indore and the execution petition was filed by the petitioner at Indore, therefore, learned Court below committed error in dismissing the application filed by the petitioner. It is submitted that the petition filed by the petitioner be allowed and the impugned order be set aside.
(4.) From perusal of the record it is evident that petition was filed by the petitioner before the learned Executing Court under Section 36 of A and C Act for enforcement of the order. In that petition only the prayer was made for transferring of execution petition. In fact petitioner was required to file a separate application in the Execution Petition under Section 39 read with Section 40 of CPC as the transfer of the award was prayed to a Court in the another State. So far as findings of the learned Court below that the award itself can be filed for its execution at Delhi can not be allowed to sustained, in view of Section 42 of A and C Act, which lays down as under:- Jurisdiction.- notwithstanding anything contained elsewhere in this Part ok in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of the agreement and the arbitral proceedings shall be made in that Court and in no other Court.
(5.) So far as transfer of petition is concerned, this Court had a occasion to consider the provisions of law in the matter of Computer Science Corporation India Private Limited Vs. Mr. Harishchandra Lodwal, 2005(4) MPLJ 164 wherein this Court after taking into consideration the definition of Court under Section 2(1)(e) of A and C Act and also after taking into consideration the provisions of Section 36 of A and C Act which deals with enforcement and Section 2(c) of the A and C Act which deals with the definition of Court, has held that the application for execution can be filed only before the Court who has jurisdiction over arbitration proceedings. (6.) Since the award was passed at Indore, therefore, unless and until the Court at Indore transfers the decree to the Court at Delhi, it can not be executed. In view of the aforesaid position of law, petition filed by the petitioner is allowed and the impu
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gned order dated 24/01/03 passed by the learned Court below is set aside with a liberty to the petitioner to file fresh application in the said execution petition for transferring of the case. If such an application is filed, then the same shall be dealt with by the learned Court below in accordance with law. (7.) With the aforesaid observations, appeal petition stands disposed of. No order as to costs. Petition allowed.