At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
For the Petitioner: B. Krishna Mani, Advocate. For the Respondents: -----
1. The petitioner, who is the first respondent in CMA(Arbitration)No.141 of 2021 pending before the Commercial Court, Kollam, has filed this original petition under Article 227 of the Constitution of India, for issuing a direction to the Commercial Court, Kollam (Principal Sub Judge, Kollam) not to entertain Ext.P1 [CMA (Arbitration) No.141/2021].
2. Heard the learned counsel for the petitioner on admission.
3. The learned counsel for the petitioner argued that as per Section 17 of the Arbitration and Conciliation Act, as amended 2015 though Arbitrator is having power to order attachment of the vehicle hypothecated, the order cannot be enforced through the Commercial Court or through Civil Court. Therefore, the legal question in this regard to be heard and decided. In view of the argument, the question arises for consideration is; what is the mode of enforcement of an interim order passed by an Arbitrator under Section 17(1) of the Arbitration and Conciliation Act, 1996.
4. In answer to this query, it is apposite to refer Section 17(2) of the Arbitration and Conciliation Act as amended 2015. It is provided therein that subject to any orders passed in an appeal under Section 37, any order issued by the Arbitrary Tribunal shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 in the same manner as if it were an order of the Court. Section 2 (14) of the Code of Civil Procedure defines “order” means the formal expression of any decision of a Civil Court which is not a decree. Therefore, the procedure for executing an interim order passed by the Civil Court or the Arbitrator is not by resorting to Order 21 of CPC. At the same time, the Civil Court is competent to enforce the interim order passed by the Arbitrator in tune with the spirit of Section 94 of CPC. In a latest decision of the Apex Court reported in [(2022) 1 SCC 209], Amazon Com NV Investment Holdings LCC v. Future Retail Limited and Others, it was held that Arbitral Tribunal cannot itself enforce its orders, which can only be done by a court with reference to CPC.
5. Here, Ext.P3, an interim award passed by the Arbitrator under Section 17(1) of the Arbitration and Conciliation Act was sought to be executed by invoking power under Section 17(2) of the Arbitration and Conciliation Act, 2015 as amended, through the Civil Court. Naturally, when the dispute is a commercial dispute as defined under the Commercial Court Act, the Civil Court competent to enforce the interim order is the Commercial Court
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. Therefore, there is no reason to interfere with the order impugned, whereby, the Commercial Court issued order to possess the vehicle by appointing a Commissioner. Therefore, the challenge raised in this original petition is devoid of any merit and it is accordingly dismissed.