Calcutta High Court (Appellete Side)
Sri Arun Kumar Jindal & Anr vs Smt. Rajni Poddar & Ors on 29 April, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O.441 of 2023
Sri Arun Kumar Jindal & Anr.
VS.
Smt. Rajni Poddar & Ors.
For the Petitioner :Mr. Subhasis Sarkar, Adv.
Mr. Subrata Bhattacharjee, Adv.
Mr. Bikramjit Mandal, Adv.
Mr. Sk. Mustafi Rahaman, Adv.
For the Opposite Parties :Mr. Chayan Gupta, Adv.
Mr. Rittick Choudhury, Adv.
Mr. Shoham Sanyal, Adv.
Last Heard On :13.01.2025
Judgement On :29.04.2025
Bibhas Ranjan De, J. :
1. Challenge in the instant revision is the order no. 39 dated
11.01.2022 passed by Ld. Additional District Judge, 6 th Court,
Alipore, South 24 Parganas wherein the application filed at the
2
behest of the petitioner under Section 47 of the Code of the Civil
Procedure (hereinafter referred to as CPC) was dismissed.
2. The fact of the case in a nutshell is to the effect that one Radha
Krishan Poddar, the predecessor in-interest of the decree holder
had instituted an execution proceeding which was registered as
Execution Case no. 9 of 2002 in order to execute the award dated
22.12.2001 passed in the arbitral proceedings. But, on
24.08.2014 the original award holder passed away and the
opposite parties herein being the legal heirs of the original award
holder were substituted by the Court vide order dated
30.10.2014. But, later on in the year 2018 the opposite parties
became aware of the fact that the Ld. Civil Judge has no
jurisdiction and accordingly withdrew the proceeding and filed an
execution proceeding afresh being arbitration execution case no.
535 of 2018 for execution of the arbitral award dated 22.12.2001
before the Ld. District Judge, Alipore who, in turn, transferred
the same to the Ld. Additional District Judge, 15th Court, Alipore
which was again subsequently transferred to the Ld. Additional
District Judge, 6th Court, Alipore.
3. During pendency of such execution proceeding the decree holder
took out an application under Order 21 Rule 37 & 38 read with
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Section 151 of the CPC. Upon obtaining notice of the same the
petitioners filed an application under Section 47 of the CPC,
thereby questioning the execution of the said decree. But the Ld.
Executing Court vide its impugned order dismissed the
application preferred by the petitioners on the ground that there
was no scope for the executing Court to go beyond the decree.
Hence, the interference of this Court is sought for.
Argument Advanced:-
4. Mr. Subhasis Sarkar, Ld. Counsel appearing on behalf of the
petitioners/award debtors assailed the order impugned in this
revision application by submitting inter alia that the title
execution was filed before a court having no jurisdiction. It has
been further submitted that the withdrawal of an execution
application without obtaining proper leave amounts to complete
disposal of legal proceedings. It is further submitted that
consequence of defective filing is knowledge and is of no
consequence and the petitioner is not entitled to benefit of initial
filing or after curing the defect.
5. In support of his contention, Mr. Sarkar relied on a cases of
Vidya Drolia and others vs. Durga Trading Corporation
(along with SLPS (C ) Nos. 5605-606 of 2019 & SLP (C ) No.
4
111877 of 2020), (2021) 2 SCC & Delhi Development
Authority vs. M/s Durga Construction Co. (unreported)
6. In stark contrast, Mr. Chayan Gupta Ld. Counsel, appearing on
behalf opposite parties / award holders has submitted that the
application under Section 47 of the CPC was filed challenging the
appointment of arbitrator and also executability of the decree.
Mr. Gupta continued his argument by submitting inter alia that
appointment of arbitrator cannot be challenged at the time of
execution of the award without re-coursing the steps under
Section 16 of the Arbitration and conciliation Act, 1996 (for short
Act of 1996). It has been further submitted that judgment debtor
deliberately refrained from challenging the award under Section
34 of the Act of 1996 and therefore the arbitral award attained its
finality within the meaning of Section 35 of the Act of 1996.
7. On the issue of executability of the award is concerned Mr.
Gupta has vehemently contended that award debtor failed to
appear in the execution proceeding and in the month of
September 2018 award holders realized that Ld. Civil Judge,
Senior Division, Alipore has no jurisdiction. Consequently, award
holder withdrew the said proceeding with liberty to file afresh.
Subsequently, arbitration execution case no. 535 of 2018 was
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filed before the Court of Ld. District Judge, Alipore which was, in
turn, transferred to the Court of Ld. Additional District Judge,
15th Court, Alipore and lastly to the Court of Ld. Additional
District Judge, 6th Court, Alipore. In support of his contention,
Mr. Gupta has referred to Section 14 of the Limitation Act and
submitted that the time spent before the Ld. Court without
jurisdiction shall be excluded from the period of limitation which
is executable without losing its enforceability.
8. To bolster his contentious proposition, Mr. Gupta has leaned
heavily upon the following judgements:-
Hindustan Zinc vs. National Research Development
Corporation, 2023 SCC OnLine Del 330
Krishna Kumar Mundhra vs. Narendra Kumar Anchalia,
(2004) 2 Arb LR 469
M/s. Sri Swaminathan Construction vs. Sri.
Thirunavukkarasu Dhanalakshmi, 2008-4-L.W. 956
Birat Chandra Dagara vs. Orissa Manganese & Minerals
Ltd., 2020 SCC OnLine Ori 5
Fuerst Day Lawson Limited vs. Jindal Exports Limited,
(2011) 8 Supreme Court Cases 333.
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Pasl Wind Solutions Private Limited vs. Ge Power
Conversion India Private Limited, (2021) 7 SCC
9. The cases relied on behalf of the opposite parties handed down
the ratio that the arbitration and conciliation act is a complete
code and provision of Section 47 of CPC has no application in
an execution proceeding under the Act of 1996.
Analysis:-
10. As an initial measure, it is judicious to commence by
reproducing the esteemed contentions put forth in the petition,
as enshrined under Section 47 of the CPC, are delineated
hereinafter for due consideration:-
a. The execution of arbitral award dated 22.12.2001 was initiated
in the year 2018 thereby losing its enforceability and becoming
unexecutable.
b. Appointment of arbitrator was not proper.
c. There was no arbitration agreement by and between the
parties.
11. Mr. Sarkar has endeavoured to enlighten to this court
regarding limitation for execution of the arbitral award by
referring to the date of arbitral award (22.12.2001) and filing of
the title execution case no. 09 of 2002 that too before the Ld.
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Civil Judge, Senior Division, 4th Court at Alipore. It is further
countered that in the year 2018 the award holder realized that
Civil Judge, Senior Division, Alipore had no jurisdiction over the
matter and consequently withdrew the proceeding and file fresh
execution case being no. 535 of 2018 before the Ld. District
Judge, Alipore, who in turn, transferred the same to the Court of
Additional District Judge, 15th Court and subsequently to the
Court of Additional District Judge, 6th Court.
12. Mr. Sarkar has submitted that at the time of withdrawal
Ld. Civil Judge, Senior Division, Alipore directed for filing the
same execution application before the appropriate forum.
13. Mr. Sarkar has tried to make this Court understand that
award holder filed one fresh arbitration execution case no. 535
of 2018 in violation of liberty given by the Civil Judge, Senior
Division, Alipore. Mr. Sarkar has referred to Delhi
Development Authority (supra) wherein it was observed as
follows:-
“17. The cases of delay in re-filing are different from
cases of delay in filing inasmuch as, in such cases the
party has already evinced its intention to take recourse
to the remedies available in courts and has also taken
steps in this regard. It cannot be, thus, assumed that
the party has given up his rights to avail legal remedies.
However, in certain cases where the petitions or
applications filed by a party are so hopelessly
8inadequate and insufficient or contain defects which are
fundamental to the institution of the proceedings, then in
such cases the filing done by the party would be
considered nonest and of no consequence. In such
cases, the party cannot be given the benefit of the initial
filing and the date on which the defects are cured,
would have to be considered as the date of the initial
filing…”
14. In Delhi Development Authority (supra) the Hon’ble
Division Bench dealt with an defects application under Section
34 of the Act of 1996 and there was dispute of delay in refilling
the objection under Section 34 of the Act of 1996. Therefore,
the dispute dealt with in Delhi Development Authority
(supra) is not at all identical with the facts of our case.
15. In the case at hand, initially title execution case no. 09 of
2002 was filed admittedly before a wrong forum.
Subsequently, arbitration execution no. 535 of 2018 was filed.
Title execution petition cannot be dealt with by a Court in an
execution of arbitral award under the provision of the Act of
1996.
16. In the case in hand the petition for withdrawal dated
07.09.2018 clearly spells out prayer for withdrawal on the
ground of defect of jurisdiction and particularly in paragraph
15 of the application opposite party/ decree holder made a
prayer for withdrawal for filing the same before appropriate
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forum. Therefore, absence of express liberty in the order
cannot, in my opinion, affect the period of limitation while
opposite party/ decree holder specifically made a prayer for
withdrawal of the execution case for filing before the
appropriate forum, for want of jurisdiction. Moreso, prayer for
filing the execution case before the appropriate forum was not
refused by the Learned Judge in the order dated 29.09.2018 in
connection with Title Execution No. 09 of 2002.
17. At this stage, it would be convenient to reproduce the
Section 14 of the Limitation Act 1963 which runs as follows:-
“14. Exclusion of time of proceeding bona fide in
court without jurisdiction. —
(1)In computing the period of limitation for any suit the
time during which the plaintiff has been prosecuting
with due diligence another civil proceeding, whether in a
court of first instance or of appeal or revision, against
the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in
good faith in a court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it.
(2)In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the same
relief shall be excluded, where such proceeding is
prosecuted in good faith in a court which, from defect of
10jurisdiction or other cause of a like nature, is unable to
entertain it.
(3)Notwithstanding anything contained in rule 2 of Order
XXXIII of the Code of Civil Procedure, 1908 (5 of 1908),
the provisions of sub-section (1) shall apply in relation to
a fresh suit instituted on permission granted by the
court under rule 1 of that Order where such permission
is granted on the ground that the first suit must fail by
reason of a defect in the jurisdiction of the court or other
cause of a like nature. Explanation.–For the purposes
of this section,–
(a)in excluding the time during which a former civil
proceeding was pending, the day on which that
proceeding was instituted and the day on which it
ended shall both be counted;
(b)a plaintiff or an applicant resisting an appeal shall be
deemed to be prosecuting a proceeding;
(c)misjoinder of parties or of causes of action shall be
deemed to be a cause of a like nature with defect of
jurisdiction.”
18. Like a protective shield guarding the right, in my humble
opinion, Section 14 of the Limitation Act stands as a sentinel,
carefully preserving the precious period of limitation within its
legislative embrace.
19. Challenging the appointment of an arbitrator for the first
time during execution proceedings is generally not
permissible. The Act of 1996, provides specific timelines and
procedures for challenging an arbitrator’s appointment. The
11
time to challenge an arbitrator is usually during the
arbitration proceedings themselves under the provision of
Section 12 to 16, or at the latest, when challenging the award
itself under Section 34 of the Act of 1996.
20. In Vidya Drolia (supra) Hon’ble Apex Court made an
observation qua the stage of objection regarding non-
arbitrability in paragraph 82 & 83:-
” 82. Issue of non-arbitrability can be raised at three
stages. First, before the court on an application for reference
under Section 11 or for stay of pending judicial proceedings
and reference under Section 8 of the Arbitration
Act; secondly, before the Arbitral Tribunal during the course
of the arbitration proceedings; or thirdly, before the court at
the stage of the challenge to the award or its enforcement.
Therefore, the question — “Who decides non-arbitrability?”
and, in particular, the jurisdiction of the court at the first look
stage, that is, the referral stage.
83. Who decides the question of non-arbitrability? — a
jurisdictional question is a technical legal issue, and requires
clarity when applied to facts to avoid bootstrapping and
confusion. The doubt as to who has the jurisdiction to decide
could hinder, stray, and delay a many arbitration
proceedings. Unfortunately, who decides non-
arbitrability remains a vexed question that does not have a
straightforward universal answer as would be apparent from
opinions in the at-variance Indian case laws on this subject.
To some extent, the answer depends on how much
jurisdiction the enactment gives to the arbitrator to decide
their own jurisdiction as well as the court’s jurisdiction at the
reference stage and in the post-award proceedings. It also
depends upon the jurisdiction bestowed by the enactment viz.
the facet of non-arbitrability in question, the scope of the
arbitration agreement and authority conferred on the
arbitrator.”
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21. In Vidya Drolia (supra) Hon’ble Apex Court suggested
the stages when the question of non-arbitrability can be
raised. But, the grounds for non-executability of the award,
taken in the case at hand have not been dealt with.
Admittedly, one application under Section 47 was filed in the
arbitration execution and that was disposed of by the
Executing Court by assigning reasons. Thereby, judgment
debtor/ petitioner cannot take assistance of the principles
enunciated in Vidya Drolia (supra).
22. Under the Arbitration and Conciliation Act, 1996, the
issue of an arbitration agreement can be raised at various
stages. A party can challenge the existence or validity of the
agreement before the arbitral tribunal (Section 16) or in court
proceedings (Section 8).
23. According to provision of Section 8 of the Act of 1996 the
party raising the question of arbitration agreement can apply
before the appropriate forum at the time of submitting his first
statement on the substance of the dispute. Section 16 (1) (b)
clearly spells out that the said question regarding existence of
arbitration agreement can be raised before the arbitral
tribunal at the stage not later than the submission of the
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statement of defence. Therefore, significant provision of
Section 8 & Section 16 of the Act of 1996 bestowed upon
parties the valuable prerogative to challenge and contest the
validity, scope & enforceability of an arbitration agreement,
thereby establishing a crucial safeguard in arbitral process.
24. In the aforesaid conspectus, I am unable to interfere with
the order impugned invoking Article 227 of the Constitution of
India.
25. Accordingly, the revision application being no. CO 441 of
2023 stands dismissed.
26. Interim Order, if there be any, stands vacated.
27. Connected applications, if there be, also stand disposed
of accordingly.
28. Parties to act on the server copy of this order duly
downloaded from the official website of this Court.
29. Urgent photostat certified copy of this judgment, if
applied for, be supplied to the parties subject to compliance
with all requisite formalities.
[BIBHAS RANJAN DE, J.]
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