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Bla Projects Pvt. Ltd vs Asansol Durgapur Development … on 24 July, 2019

In the High Court at Calcutta

Civil Revisional Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

C.O. No. 1898 of 2019

BLA Projects Pvt. Ltd.

Vs.

Asansol Durgapur Development Authority

For the petitioner : Mr. Jaydip Kar,

Mr. Suman Dutta,

Mr. Sourav Kumar Mukherjee,

Mr. Debdeep Sinha

For the opposite party : Mr. Sayantan Bose,

Ms. A. Banerjee

Hearing concluded on : 11.07.2019

Judgment on : 24.07.2019

Sabyasachi Bhattacharyya, J.:‐
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1. The award‐holder in an arbitral proceeding under the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as “the 1996 Act”) has preferred

the instant application under Article 227 of the Constitution of India. By the

impugned order, the executing court upheld a challenge to the

maintainability of the proceeding for execution of the arbitral award and

dismissed the execution case.

2. Threefold objections were taken by the award debtor to the execution case:

(i) the execution case was filed before the court of an Additional

District Judge, which was not a Court under Section 2 (1) (e) of

the 1996 Act;

(ii) the Additional District Judge did not have authority to transfer

the case to the Court of the Civil Judge (Senior Division); and

(iii) since an application under Section 34 of the 1996 Act had been

filed by the award‐debtor before the court of the District Judge at

Alipore, District: South 24‐Parganas previously, the execution

case also had to be filed in the said court under Section 42 of the

1996 Act.

3. Learned counsel for the petitioner submits that the first question was

answered in favour of the petitioner and as such, being unchallenged, need

not be dwelt upon. The trial judge placed reliance upon the judgement of West

Bengal Housing infrastructure Development Corporation v. M/s Impression,
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reported at AIR 2016 Cal 236, wherein it was held that the court of an

Additional District Judge was a ‘Court’ within the meaning of Section 2 (1) (e)

of the 1996 Act.

4. As regards the applicability of Section 42 of the 1996 Act, learned counsel for

the petitioner argues that Section 36 of the 1996 Act envisages that the

procedure provided in the Code of Civil Procedure would be applicable to the

enforcement of an arbitral award. Section 32 (1) of the 1996 Act provides that

the arbitral proceedings shall be terminated by the final award. As such, it is

argued, a proceeding under Section 36 of the 1996 Act is filed subsequent to

such termination and is beyond the ambit of the arbitral proceeding. Hence

the provisions of Section 42 of the 1996 Act are inapplicable to such a

proceeding.

5. Learned counsel for the award‐holder/petitioner seeks to distinguish a three‐

judge bench decision of the Supreme Court, reported at (2015) 1 SCC 32 [State

of West Bengal and Others v. Associated Contractors], relied on by the trial court,

on the ground that the same was rendered on the question, which court will

have the jurisdiction to entertain and decide an application under Section 34

of the 1996 Act, and as such is not an authority for Section 36 of the said Act.

Learned counsel submits that the language of Section 36 clearly presses into

service the procedure for execution as provided in the Code of Civil
4

Procedure to the enforcement of an award, which ingredient is entirely

absent in Section 34.

6. The petitioner argues that Section 36 of the 1996 Act does not provide for any

application, but stipulates that the modalities of execution, as stipulated in the

Code of Civil Procedure, would apply to arbitral awards as if they were

decrees of courts.

7. It is submitted on behalf of the petitioner that a proceeding envisaged under

Section 36 of the 1996 Act is initiated only after termination of the arbitral

proceedings by the final arbitral award, as contemplated in Section 32 (1) of

the Act. Hence, it is argued, such a proceeding does not fall within the

purview of an “application with respect to an arbitration agreement” to

qualify for Section 42 of the 1996 Act. Learned counsel submits that the 1996

Act does not provide anything on execution of an arbitral award but leaves

the same to a civil court.

8. Learned counsel for the petitioner argues that the judgment of Sundaram

Finance Limited, represented by J. Thilak, Senior Manager (LEGAL) v. Abdul Samad

and Another, reported at (2018) 3 SCC 622, is much more appropriate in the

present context, since the same deals with a Section 36 situation. It was held

therein that, under Section 36 of the 1996 Act, the arbitral award can be filed

for execution before the court where the assets of the judgment‐debtor are

located.
5

9. It is argued on behalf of the petitioner that there was no conflict

between Sundaram Finance (supra) and Associated Contractors (supra), since the

former dealt specifically with Section 36 of the 1996 Act and the latter with

Section 34 of the Act.

10. As regards the Additional District Judge having transferred the matter to the

Civil Judge (Senior Division), learned counsel for the petitioner argues that

the relevant time for deciding the jurisdiction of a court is when the decree is

passed finally and not when the suit is filed. In support of such proposition,

learned counsel cites a judgment reported at (2006) 1 SCC 141 [Sudhir G.

Angur and Others v. M. Sanjeev and Others] , wherein it was held that the law

to be applied in determining jurisdiction of court was the law as on the date

on which the suit comes up for hearing and not the date of institution of the

suit. If the court has jurisdiction to try the suit when it comes for disposal, it

then cannot refuse to assume jurisdiction by reason of the fact that it had no

jurisdiction to entertain it at the date of institution.

11. The Civil Judge (Senior Division), before whom the application under Section

36 was ultimately transferred, had jurisdiction under the Code of Civil

Procedure, as assets of the award‐debtor were located within his territorial

jurisdiction. Hence even the lack of jurisdiction of the court of filing, that is,

the Additional District Judge, would not be a deterrent for the Civil Judge

(Senior Division) to take up the matter.
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12. On the question of competence of the Additional District Judge to initially

entertain the application under Section 36 of the 1996 Act, it is submitted by

the petitioner that even under the said Act, the Additional District Judge

would be competent to do so. Learned counsel relies on a special bench

judgment of this court in West Bengal Housing Infrastructure Development

Corporation v. M/s Impression, reported at AIR 2016 Cal 236 which was

rendered on reference on the question, whether the court of the Additional

District Judge was a court within the meaning of Section 2 (1)(e) of the 1996

Act. It was answered in the affirmative.

13. On the other hand, learned counsel for the opposite party opened his

argument with the proposition that the Additional District Judge had no

authority to accept the filing of the original application for enforcement of

award. By placing reliance on Section 8 (2) of the Bengal, Agra Assam Civil

Courts Act, 1887 (hereinafter referred to as “the 1887 Act”), learned counsel

submits that the Additional District Judges (referred to in the Act as

“Additional Judges”) discharge only those functions of a District Judge which

the District Judge assigns to them, although in the discharge of those

functions they exercise the same powers as the District Judge.

14. Next placing Section 21 (3) of the 1887 Act, learned counsel for the opposite

party submits that the said provision specifies that where the function of

receiving any appeal which lies to the District Judge under sub‐sections (1) or
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(2) of the said section has been assigned to an Additional District Judge,

the appeals may be preferred to the Additional District Judge. It is thus

argued that by providing specifically for appeals, the legislature has excluded

other matters by implication. As such, the Additional District Judges have

power to discharge functions of the District Judge when assigned, but those

functions are restricted to administrative ones. In respect of receiving judicial

matters, however, Section 21 (3) restricts such power of the Additional District

Judges to appeals. Hence, no original suit or application (as opposed to

appeals) maintainable before a District Judge can be entertained by the

Additional District Judges.

15. In support of such submission, learned counsel for the opposite party cites a

judgment reported at AIR 2010 Cal 26 [Shirsha Nath Mallick v. Arun Kumar

Sarkhel]. A co‐ordinate bench held in the said case that Additional District

Judges are not subordinate to District Judge in discharge of judicial functions

and do not require any special authorization under Section 4‐A of the

Guardians and Wards Act, 1890 for consideration of a proceeding under

Section 8 of the Hindu Minority and Guardianship Act, 1956 when such an

application is transferred and/or assigned to the Additional District Judges for

disposal. On a consideration of the provisions of Section 8(1) and 8(2) of the

1887 Act, the court held that the District Judge and the Additional District

Judges taken together collectively represent the District Court, for discharge

of judicial functions of the District Court. But, at the same time, the court held
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that Additional District Judges cannot independently receive

presentation of any such application, as no territorial jurisdiction is conferred

upon them individually over which they can exercise their independent

jurisdiction. The Additional District Judges can only discharge those functions

which are assigned to them by the District Judge under Section 8(2) of the

1887 Act or under Section 24 of the Code of Civil Procedure. Jurisdiction to

entertain such applications, it was held, has exclusively been vested upon the

District Judge, being the Principal Judge of the civil court of original

jurisdiction functioning over the local limits of its jurisdiction within the

district.

16. Dealing with the case of M/s Impression (supra), which was cited by the

petitioner, learned counsel for the opposite party submits that although the

Additional District Judge had the power to entertain an application under

Section 36 of the 1996 Act on transfer from the District Judge’s court, the

Additional District Judge did not have power to entertain an original

application under the said provision as in case of appeals under Section 21(3)

of the 1887 Act.

17. It is further submitted on behalf of the opposite party that even an application

under Order XXI Rule 10 had to be filed to the court which passed a decree or

to the officer, if any, appointed in this behalf, or if the decree has been sent
9

under the provisions thereinbefore contained to another court, then to such

court or to the proper officer thereof.

18. As such, even if the present application was one for execution under Order

XXI of the Code of Civil Procedure, the court having jurisdiction over the

assets could not have entertained the original application for execution, unless

the same was filed first before the court which passed the decree and then

transferred thereto.

19. It is further argued that since the award of an arbitral tribunal was not a

‘decree’ but the provisions of the Code of Civil Procedure were merely

applicable to such award, the forum provided in the Code of Civil Procedure

could not govern the filing of an application for execution of an arbitral

award.

20. Learned counsel for the opposite party places reliance on Section 36(1) of the

1996 Act to indicate that the said section was the parent provision under

which an application for enforcement was filed. It not only provides when the

award shall be enforced but the manner in which it would be so enforced. The

modalities pertaining to such enforcement are also provided in Section 36,

making it the source of power for a court to entertain an application for

enforcement of an arbitral award. As such, it has to be deemed that an

application for enforcement of an arbitral award is an ‘application with

respect to an arbitration agreement’ under Part I of the 1996 Act, as
10

contemplated in Section 42 of the said Act, and had to be filed in the court

where the first application with respect to such agreement (in the present

case, the application under Section 34 of the 1996 Act) had been filed.

21. Harping on the non‐obstante clause of Section 42, learned counsel argues that

the provisions of Section 42 were applicable notwithstanding anything

contained elsewhere, not only in any other law but also elsewhere in Part I of

the 1996 Act. As such, it is argued that neither the provisions of Order XXI of

the Code of Civil Procedure nor anything in Section 36 of the 1996 Act could

alter the forum envisaged in Section 42 of the said Act.

22. Learned counsel next cites paragraph nos. 16 and 17 of Sundaram Finance

Limited (supra) for the proposition that the logic behind the ratio laid down in

the said judgment was encapsulated in the said two paragraphs, being that

Section 32 of the 1996 Act provides for arbitral proceedings to be terminated

by the final arbitral award and the consequential inapplicability of Section 42

to a proceeding under Section 36, which happens only after termination of the

proceeding.

23. Learned counsel argues that not only is such logic contrary to the previous

judgment rendered in Associated Contractors (supra), which was delivered by a

bench of larger strength than Sundaram Finance, but it also militates against

Section 42 of the 1996 Act itself. It is submitted that Associated Contractors dealt

with Sections 9 and 34 of the 1996 Act, both of which could be filed after
11

termination of the arbitral proceeding. Hence, the ratio laid down

in Associated Contractors could not have been distinguished in Sundaram

Finance, which was of a bench of lesser strength, on the ground that

enforcement under Section 36 was a post‐termination scenario.

24. It is further argued that even if the Additional District Judge had the

jurisdiction, on transfer, to decide an application under Section 36 of the 1996

Act (which it did not), no further sub‐delegation to the Civil Judge (Senior

Division) was permitted under the statute, since the Additional District Judge

itself would have been a transferee/delegate.

25. In support of this proposition, learned counsel cites a judgment reported at

AIR 1967 SC 295 [Barium Chemicals Ltd. and another vs. Company Law Board and

others], wherein it was held that a delegated authority cannot be re‐delegated,

relying on the principle Delegatus Non Potest Delegare.

26. As such, it is argued that the Additional District Judge did not have the

power, in the present case, to re‐delegate the matter on transfer to the Civil

Judge (Senior Division), hence denuding the latter of authority to decide the

proceeding for enforcement of award.

27. Learned counsel for the opposite party next lays stress on paragraph no. 14 of

Sundaram Finance (supra), wherein it was held that the enforcement

mechanism was akin to the enforcement of decree but the award itself was

not a decree of the civil court. It is the arbitral tribunal, it was held, which
12

renders an award and the tribunal does not have the power of execution of

a decree; for the purposes of execution of a decree the award is to be enforced

in the same manner as if it was a decree under the said Code. Thus, it is

argued, an application for enforcement of an arbitral award lies under Section

36 of the 1996 Act itself and not under Order XXI of the Code of Civil

Procedure, and the provisions of the Code of Civil Procedure regarding the

forum of such application would not to be a deterrent to the applicability of

Section 42 of the 1996 Act.

28. Falling back upon Associated Contractors (supra), learned counsel for the

opposite party argues that the said judgment, contrary to the petitioner’s

contention, was not restricted to Section 34 of the 1996 Act but was an

authoritative pronouncement on Section 2(1)(e) and Section 42 of the 1996 Act,

as evident from paragraph no. 9 of the said judgment. Paragraph no. 11 of the

said judgment noticed that Section 42 is in almost the same terms as its

predecessor section except that the words “in any reference” are substituted

with the wider expression “with respect to an arbitration agreement”. It was

also noticed that the expression “has been made in a court competent to

entertain it” was no longer there in Section 42. These two changes were

observed to be of some significance in the said paragraph of Associated

Contractors. The non‐obstante clause of Section 42 of the 1996 Act was also

noted in the said judgment.
13

29. As such, it is argued that the ratio of the said judgment covers an

application under Section 36 of the 1996 Act as well and could not be

distinguished on that score.

30. It is next argued on behalf of the opposite party, by placing reliance on (1992)

4 SCC 711 [Nelson Motis vs. Union of India and another] that if the language of

the statute was plain and unambiguous and admits of only one meaning, it

has to be given effect to, irrespective of the consequences. As such, it is argued

that the alleged consequence of hardship could not be a consideration for

ascertaining jurisdiction of court to entertain an application under Section 36

of the 1996 Act, as circumscribed by Section 42 of the said Act.

31. Upon considering the submissions of both sides, it is necessary to consider

certain provisions, which are set out below:

“Arbitration and Conciliation Act, 1996:

S. 2.(1)(e). “Court” means –

(i) in the case of an arbitration other than international commercial arbitration,

the principal civil court of original jurisdiction in a district, and includes the

High Court in exercise of its ordinary original civil jurisdiction, having

jurisdiction to decide the questions forming the subject matter of the

arbitration if the same had been the subject matter of a suit, but does not

include any civil court of a grade inferior to such principal civil court, or any

Court of Small Causes;
14

(ii) in the case of international commercial arbitration, the High Court in

exercise of its ordinary original civil jurisdiction, having jurisdiction to decide

the questions forming the subject matter of the arbitration if the same had been

the subject matter of a suit, and in other cases, a High Court having

jurisdiction to hear appeals from decrees of courts subordinate to that High

Court.

‐‐‐ ‐‐‐ ‐‐‐

S. 32. Termination of proceedings.– (1) The arbitral proceedings shall be

terminated by the final arbitral award or by an order of the arbitral tribunal

under sub‐section (2).

(2) The arbitral tribunal shall issue an order for the termination of the

arbitral proceedings where–

(a) the claimant withdraws his claim, unless the respondent objects to the

order and the arbitral tribunal recognises a legitimate interest on his

part in obtaining a final settlement of the dispute,

(b) the parties agree on the termination of the proceedings, or

(c) the arbitral tribunal finds that the continuation of the proceedings has

for any other reason become unnecessary or impossible.
15

(3) Subject to section 33 and sub‐section (4) of section 34,

the mandate of the arbitral tribunal shall terminate with the termination of the

arbitral proceedings.

‐‐‐ ‐‐‐ ‐‐‐

S. 36. Enforcement.–(1) Where the time for making an application to set

aside the arbitral award under Section 34 has expired, then, subject to the

provisions of sub‐section (2), such award shall be enforced in accordance with

the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same

manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed

in the court under section 34, the filing of such an application shall not by

itself render that award unenforceable, unless the court grants an order of stay

of the operation of the said arbitral award in accordance with the provisions of

sub‐section (3), on a separate application made for that purpose.

(3) Upon filing of an application under sub‐section (2) for stay of the

operation of the arbitral award, the court may, subject to such conditions as it

may deem fit, grant stay of the operation of such award for reasons to be

recorded in writing:

Provided that the court shall, while considering the application for

grant of stay in the case of an arbitral award for payment of money, have due
16

regard to the provisions for grant of stay of a money decree under the

provisions of the Code of Civil Procedure, 1908 (5 of 1908).

‐‐‐ ‐‐‐ ‐‐‐

S. 42. Jurisdiction.–Notwithstanding anything contained elsewhere in this

Part or 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 that agreement and the arbitral

proceedings shall be made in that Court and in no other Court.”

“The Bengal, Agra and Assam Civil Courts Act, 1887:

S. 8. Additional Judges. ‐ (1) When the business pending before any District

Judge requires the aid of Additional Judges for its speedy disposal, the State

Government may, having consulted the High Court, appoint such Additional

Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions

of a District Judge which the District Judge may assign to them, and, in the

discharge of those functions, they shall exercise the same powers as the

District Judge.

‐‐‐ ‐‐‐ ‐‐‐
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S. 21. Appeals from Civil Judge (Senior Division) and Civil Judges

(Junior Division) . ‐ (1) Save as aforesaid, an appeal from a decree or order of

Civil Judge (Senior Division) shall be ‐

(a) to the District Judge where the value of the original suit in which or in

any proceeding arising out of which the decree or order was made did

not exceed sixty thousand rupees, and

(b) to the High Court in any other case.

(2) Save as aforesaid, an appeal from a decree or order of a Civil Judge

(Junior Division) shall lie to the District Judge.

(3) Where the function of receiving any appeals which lie to the

District Judge under sub‐ section (1) or sub‐ section (2) has been assigned to

an Additional Judge, the appeals may be preferred to the Additional Judge.

(4) The High Court may, with the previous sanction of the State

Government, direct, by notification in the Official Gazette, that appeals lying

to the District Judge under sub‐ section (2) from all or any of the decrees or

orders of any Civil Judge (Junior Division) shall be preferred to the Court of

such Civil Judge (Senior Division) as may be mentioned in the notification,

and the appeals shall thereupon be preferred accordingly.”
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32. A glance at Section 42 of the 1996 Act shows that the said provision is

applicable to all the applications in part I of the 1996 Act, irrespective of

whether such application is filed before or after termination of the arbitral

proceedings. Since the language used in the said section covers applications

“with respect to an arbitration agreement”, no line of distinction can be drawn

between pre and post‐termination proceedings. This view, in fact, is endorsed

in Associated Contractors (supra).

33. That apart, the non‐obstante clause at the beginning of Section 42 curtails the

scope of the said provision being restricted by any other provision contained

in the 1996 Act or any other law.

34. However, the interesting thing about Section 36 of the 1996 Act is that no

application is contemplated in the said provision, unlike other provisions in

the said Act relating to an action before a ‘court’. Sections 8, 9 and 34 of the

Act contemplate initiation of proceeding under the said sections themselves,

by way of filing an application before the court. Section 11, although on a

somewhat different footing, also contemplates a ‘request’ to the Supreme

Court or the High Court in the form of an application. Section 37, on the other

hand, refers to an appeal and is not in the nature of an application at all. Thus,

it is seen that all challenges/actions before a court under part I of the 1996 Act

are self‐contained as regards the mode of such challenge or motion, being

mostly applications.

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35. However, Section 36 merely provides for enforcement of an arbitral

award and acts as a bridge enabling the provisions of the Code of Civil

Procedure to be applied to the enforcement of an arbitral award, in the same

manner as if it were a decree of the court. No application is envisaged under

the said section for the enforcement of an award.

36. Hence, it cannot be said that an application for enforcement of an arbitral

award is made under Section 36, sufficient to bring it within the fold of

Section 42 of the 1996 Act. An application for execution, as provided in

Section 36, would have to be made “in accordance with the provisions of the

Code of Civil Procedure, 1908”, thereby enabling full application of Order XXI

of the Code of Civil Procedure and other connected provisions as regards the

mode and manner of application as well as the form of such application.

37. While considering Sundaram Finance (supra), it strikes the eye that the same

was rendered on the question, whether an award under the 1996 Act is

required to be first filed in the court having jurisdiction over the arbitral

proceedings for execution and then to obtain transfer of the decree, or

whether the award can be straightway filed and executed in the court where

the assets are located. As far as applicability of Section 42 of the said Act is

concerned, paragraph 16 of the said judgment proceeded on the premise that

the said provision applies to arbitral proceedings. Paragraph 17 of the

judgment stated that Section 32 of the 1996 Act provides for arbitral
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proceedings to be terminated by the final arbitral award. On such logic, it

was observed that when an award is already made, of which execution is

sought, the arbitral proceedings already stood terminated on the final award

being passed. Thus, it was not appreciated as to how Section 42 of the said

Act, which deals with the jurisdiction issue in respect of arbitral proceedings,

would have any relevance.

38. The Supreme Court went on to hold that an award under Section 36 of the

1996 Act is equated to a decree of the court for the purposes of execution and,

only for such limited purpose, the award was deemed to be a decree. On such

premise, it was held that the enforcement of an award through its execution

can be filed anywhere in the country where such decree can be executed and

there is no requirement for obtaining a transfer of the decree from the court

which would have jurisdiction over the arbitral proceedings. It was also

observed that the 1996 Act transcends all territorial barriers.

39. It is evident that the logic, that Section 42 was not applicable to a proceeding

for enforcement of the award since the same arose after termination of the

proceedings, was contrary to the three‐Judge bench decision of Associated

Contractors (supra). In the said case, it was decided that the expression “with

respect to an arbitration agreement” in Section 42 of the 1996 Act are words of

wide import and would take in all applications made before, during or after

the arbitral proceedings are over. On such premise, the Supreme Court went
21

on to observe that Section 42 would apply to applications made after

the arbitral proceedings have come to an end, provided they are made under

Part I.

40. The Supreme Court, in its conclusive paragraph (paragraph 25) took into

consideration applications under Sections 9 and 34 of the 1996 Act.

41. However, it is notable to mention that Section 36 of the 1996 Act did not find

place in the said consideration.

42. In fact, in the opening paragraph of Associated Contractors (supra), it was

indicated that the reference in that case was on the question, which court will

have the jurisdiction to entertain and decide an application under Section 34

of the 1996 Act. The entire judgment was rendered in such context.

43. Nowhere in Associated Contractors (supra) did the Supreme Court consider the

context of Section 36 of the 1996 Act.

44. As such, although one could arguably be justified in observing that Sundaram

Finance (supra) (rendered by a two‐Judge bench) went contrary to the logic of

Associated Contractors (three‐Judge bench decision) inasmuch as the effect of

Section 42 on post‐arbitral proceeding termination applications was

concerned, Associated Contractors was not rendered in the context of the of

Section 36 of the 1996 Act and did not consider the legal effect thereof.
22

45. Thus, Sundaram Finance can at best be seen as an authority on the

proposition that an award was enforceable as a decree under Section 36 of the

1996 Act and thus, could be filed anywhere in the country where such decree

could be executed, without obtaining a transfer of the decree from the court,

which would have jurisdiction over the arbitral proceedings. However, the

same ought not to be deemed as an authority on the proposition that Section

42 is inapplicable to applications within part I of the 1996 Act initiated after

termination of arbitral proceedings, in view of being contrary to Associated

Contractors.

46. Even if we see the conclusions arrived at in Associated Contractors, in

paragraph 25 thereof, it is abundantly clear that the Supreme Court held that

Section 42 would apply to ‘applications’ made under part I.

47. A close examination of Section 36 of the 1996 Act, which never fell for

consideration in Associated Contractors (supra), shows that no application for

enforcement of an arbitral award is envisaged in the said provision.

48. Section 36 at best creates a fiction that an arbitral award would operate as a

decree of a civil court for the limited purpose of being executed. The section

provides that an arbitral award shall be enforced in accordance with the

provisions of the Code of Civil Procedure, 1908, in the same manner as if it

were a decree of the court.

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49. It is noteworthy that Section 36(1) does not make any distinction as to

modalities and forum while making the provisions of the Code of Civil

Procedure applicable to an arbitral award. Hence, nothing in the Arbitration

Act, in particular Section 36 thereof, provides that an application for execution

of an arbitral award has to be filed before the district court, as provided in

Section 2(1)(e) of the 1996 Act. In fact, the application for

enforcement/execution of an arbitral award is not an application under

Section 36 of the 1996 Act at all but under Order XXI of the Code of Civil

Procedure, as provided in Section 36 itself.

50. Thus, such an application is not an “application under part I” of the 1996 Act,

which takes it outside the purview and rigours of Section 42 of the 1996 Act.

51. Associated Contractors (supra) contemplated only ‘applications’ under part I to

be governed by Section 42.

52. In view of the discussion above, an application for enforcement of an arbitral

award is not covered by Section 42 of the 1996 Act.

53. Contrary to the arguments of the opposite party that Section 36 is the source

of power for the court to enforce an arbitral award, the source of power is

Order XXI of the Code of Civil Procedure. Section 36 of the 1996 Act only

enables the Code to apply to arbitral awards as in decrees and does not

provide for any mode or forum for an application for enforcement of such an

award.

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54. That apart, a larger issue is involved herein. The applications to a

‘court’ under Section 2(1)(e) of the 1996 Act, as contemplated in the said Act,

all lie before a superior forum.

55. For obvious reasons, applications under Sections 8 and 11 of the 1996 Act are

independent applications to a court and to the High Court respectively, being

rather unconnected with a pending arbitral proceeding. However, both

Sections 34 and 37 lie before a forum superior to the arbitral tribunal. Section

34 specifically provides for a challenge to the award before a superior forum.

Sub‐section (2) of Section 37, by its very nature, has to lie before a superior

forum.

56. Section 37(1)(a) is from an independent court proceeding, having no

connection with the arbitral tribunal in the context of the present analogy.

57. Sub‐section (1)(b) pertains to grant/refusal of an order under Section 9 of the

1996 Act. In view of Section 17 of the 1996 Act having conferred somewhat

similar powers on the arbitral tribunal, Section 9 has to be construed to lie

before a superior forum. Otherwise there would be a conflict of jurisdiction,

since a similar power would have to be conferred under two separate

provisions, (Section 17 and Section 9) on the arbitral tribunal and a collateral

forum (here, the court), which would obviously create judicial anarchy. Thus,

such a construction cannot be imputed to the legislative intent. As such, even
25

in the context of sub‐section (1)(b), the court has to be treated to be a

superior forum than the arbitral tribunal.

58. The same logic as sub‐section (1)(b) applies to sub‐section (1)(c) of Section 37

as well. Therefore, the general scheme of the 1996 Act provides for a remedy

before a court, as defined in Section 2(1)(e), at least as far as part I of the 1996

Act is concerned, before a superior forum. Taking into consideration the said

scheme, it would be an absurd construction if the enforcement of an arbitral

award is also deemed to be levied before a District Court, which is a superior

court according to the scheme of the Act all through part I. Not only the Code

of Civil Procedure but all statutes in general are unanimous on the issue that

execution of a decree/award/order is levied before the same court or a court

on the same stratum of judicial hierarchy. Such scheme would be militated

against, in the event an application for enforcement of an arbitral award has

to be filed before a District Court.

59. As such, taking into consideration the scheme of Section 36 of the 1996 Act,

the only feasible conclusion is that an application for enforcement of the

award is filed under Order XXI of the Code of Civil Procedure, not before the

highest forum in the district but before the lowest court competent to

entertain such application, as contemplated in the Code of Civil Procedure.

60. Taking such view in conjunction with the ratio laid down in Sundaram

Finance, even excluding the portion thereof which is contrary to Associated
26

Contractors, an application for enforcement of an award can be filed

directly before the court where the assets of the award debtor are situated,

since it is not a civil court’s decree but an award which is being applied.

61. Hence, the Civil Judge (Senior Division), who passed the order impugned in

the present revisional application, had the jurisdiction to entertain the

application for enforcement of the award in the first place.

62. The other important question is, whether the Additional District Judge could

function as a ‘court’ under Section 2(1)(e) of the 1996 Act. However, in view of

the discussion above, the said question becomes academic, since the hierarchy

stipulated in the Code of Civil Procedure, and not that provided in the 1996

Act, will be applicable to a proceeding for enforcement of an arbitral award.

63. Although the tenor of the judgments cited by the opposite party, in particular

those of Shirsha Nath Mallick (supra), M/s Impression (supra) and Barium

Chemicals Ltd (supra) go on to suggest that the Additional District Judge did

not have the administrative power to delegate its authority to the Civil Judge

(Senior Division), such a proposition could not be held to be absolute in the

present circumstances.

64. A dilution can arguably be introduced to the said principle, as applied in the

present context, to the extent that the Additional District Judge did not

‘delegate’ its power to the Civil Judge (Senior Division) but transferred the

case to the Civil Judge (Senior Division), which is governed by Section 8(2) of
27

the 1887 Act and/or Section 24 of the Code of Civil Procedure. However, it

is doubtful as to whether the Additional District Judge could exercise such

power of transfer under either of the provisions to send the matter for

disposal before the Civil Judge (Senior Division).

65. Strictly speaking, such a transfer was the prerogative of the District Judge and

could not have been exercised by the Additional District Judge.

66. However, since ultimately it was the Civil Judge (Senior Division), who had

jurisdiction to enforce the award‐in‐question, in the event the impugned order

is affirmed, the effect would be unnecessary multiplicity. What would happen

is that the award‐holder, after the prayer for enforcement by the Civil Judge

(Senior Division) being turned down only on the ground that the said court

did not have such authority on transfer from the Additional District Judge,

the award‐holder would only have to re‐present the self‐same application on

the very next date before the court of the Civil Judge (Senior Division) itself to

have a competent adjudication thereon. In order to avoid such meaningless

formality, it should be construed that the Civil Judge (Senior Division) had

the authority to decide the said application.

67. What should be the relevant date in the context of jurisdiction is the date

when the execution application is ultimately decided and not the date of

initial presentation of the same. This is borne out by the decision of Sudhir G.

Angur (supra).

28

68. Although it cannot be said that jurisdiction was conferred on the said

court upon any change of law which was not available to the award‐holder on

the date of presentation of the enforcement application, ends of justice would

demand that the date of decision on the enforcement application ought to be

taken as the yardstick of jurisdiction.

69. It is not that the Civil Judge (Senior Division) did not have jurisdiction when

the application was presented first. The only fetter is the technical objection,

that the Civil Judge (Senior Division) received the said application on transfer

from the Additional District Judge and not in the form of an original

application. There are several provisions of the Code of Civil Procedure to

permit a return of the plaint in case of lack of jurisdiction and re‐presentation

before the proper forum, for rejection of a plaint and re‐presentation before

the appropriate forum as well as for transfer to the appropriate forum in the

event the initial forum did not have jurisdiction.

70. The mere technicality of a transfer by the Additional District Judge being

unauthorized by law, would be entirely procedural and, as such, the

handmaid of justice.

71. Viewed from such perspective, since the Civil Judge (Senior Division) had

jurisdiction to entertain the application for enforcement in the present case

from the day of the presentation of the application, although such

presentation was initially before a wrong forum, dismissal of the enforcement
29

application would be contrary to the ends of justice as well as norms of

jurisprudence. Such a procedure, if adopted, would only lead to a fresh

application for enforcement on similar ground being filed on the next date

and as such ought to be avoided.

72. Thus, the Civil Judge (Senior Division) refused to exercise jurisdiction vested

in him by law in dismissing the application for enforcement of the arbitral

award.

73. Accordingly, C.O. No.1898 of 2019 is allowed on contest, thereby setting aside

the impugned order and directing the Civil Judge (Senior Division) at

Durgapur to dispose of Money Execution Case No. 48 of 2018, pending in the

said court, afresh on merits, as expeditiously as the business of the said court

permits.

74. There will be no order as to costs.

75. Urgent certified website copies of this order, if applied for, be made available

to the parties upon compliance with the requisite formalities.

( Sabyasachi Bhattacharyya, J. )
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