Jharkhand High Court
M/S Golden Ceramic Works (P) Ltd Through … vs M/S Simplex Casting Limited Through … on 16 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:19786
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
C.M.P. No. 586 of 2024
—-
M/s Golden Ceramic Works (P) Ltd through its Principal Officer Mr. Babul
Kumar aged about 51 years son of late Ram Chandra Prasad resident of
Laxmi Niwas, Nehru Road, P.O. Chirkunda, P.S. Nirsa, District Dhanbad
…… …. Decree Holder/Petitioner(s)
— Versus —
1.M/s Simplex Casting Limited through Chairman, having its registered
office at 601/602 A, Fairlink Centre, Off Andheri Link Road, P.O. and P.S.
Andheri (West), Mumbai, Maharashtra
2.Mr. Ketan Moolchand Shah, Chairman of M/s Simplex Casting Limited,
resident at 601/602 A, Fairlink Centre, Off Andheri Link Road, PO and PS
Andheri (West) Mumbai, Maharashtra
3.Mrs. Sangeeta Ketan Shah, Managing Director of M/s Simplex Casting
Limited, resident at 601/602 A, Fairlink Centre, Off Andheri Link Road, P.O.
and P.S. Andheri (West) Mumbai, Maharashtra
….. Judgment Debtors/ Respondents
—-
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
—
For the Petitioner(s) : Mr. Kumar Harsh, Advocate
Mr. Raj Nandan Chatterjee, Advocate
Mr. Tejasma Mohanta, Advocate
For the Opposite Party(s) No.1-3 : Mr. Vishal Shrivastava, Advocate
—-
08/16.07.2025 Heard Mr. Kumar Harsh, the learned counsel appearing on behalf of the
petitioner as well as Mr. Vishal Srivastava, the learned counsel appearing on
behalf of the Opposite Party nos.1 to 3.
2. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 12.03.2024 whereby Execution Case filed by
— 1 — C.M.P. No. 586 of 2024
2025:JHHC:19786
the petitioner herein being Execution Case No.189 of 2022 has been dismissed
by the learned Civil Judge, Senior Division-I, Dhanbad on the ground of
jurisdiction saying that the Dhanbad Court has got no jurisdiction.
3. Mr. Kumar Harsh, the learned counsel for the petitioner submits that the
dispute between the parties has arisen with regard to outstanding amount of
Rs.59,45,475/- plus accrued interest against purchase order F-PUR-03/SC-
II/R25/ID-705/01787 dated 08.02.2018 towards supply of refractory bricks and
mortars. He submits that the agreement is reached between the petitioner and
the Opposite parties to the effect that the said refractory bricks will be supplied
by the petitioner to the Opposite parties from their Dhanbad refractory to the
State of Chhatisgarh where the requirement of the said bricks were thereof
O.P.Nos.1 to 3. He submits that since it was a commercial dispute between the
petitioner and the Opposite parties in light of provisions made under the Micro,
Small and Medium Enterprises Development Act, 2006 a reference was raised in
light of Section 18 of the said Act before the Micro and Small Enterprises
Facilitation Council and after hearing both the sides the said Council has passed
the arbitral award in terms of section 36 of the said Act and made award dated
13.8.2021 in favour of the petitioner signed on 12.11.2021 passed by the said
Council. He submits that by the arbitral award, the learned Arbitrator has been
pleased to direct the judgment debtor /Opposite parties to pay the degree
holder/ petitioner an amount to the tune of Rs.59,45,475/- being balance
principal outstanding amount and interest within 30 days from the date of
receipt of the award failing which, the claimant was made entitled to realize the
amount through the process of law. He submits that the Chartered Accountant
of the petitioner has calculated the amount along with interest to the tune of
Rs.87,79,542/- and thereafter a copy was also sent to the judgment
debtor/Opposite parties. He submits that the payment in terms of the award
was not made, however, an amount of Rs.16 lacs (Sixteen Lacs) out of the said
— 2 — C.M.P. No. 586 of 2024
2025:JHHC:19786
amount has been paid and the remaining amount has not been paid and in
view of that the petitioner herein has filed the Execution Case No.189 of 2022
under section 36 of the Arbitration and Conciliation Act, 1996 before the learned
court at Dhanbad. He submits that in light of the provisions made in the Micro,
Small and Medium Enterprises Development Act, 2006, the order passed by the
said Facilitation Council are said to be Award in light of Sub section 4 of Section
18 of the said Act. In view of that, the Arbitration and Conciliation Act, 1996 is
applied to said proceeding. He further submits that, however, the learned court
by order dated 12.03.2024 has held that the said court is not having the
jurisdiction and that has been said interpreting the judgment of Hon’ble
Supreme Court in the case of Sundaram Finance Limited, Represented by
J. Thilak, Senior Manager (Legal) v. Abdul Samad and Another reported
in (2018) 3 SCC 622. He then submits that the learned court has not
interpreted the judgment of the Hon’ble Supreme Court in the case of
Sundaram Finance Limited, Represented by J. Thilak, Senior Manager
(Legal) v. Abdul Samad and Another(supra) in its right perspective. He
draws the attention of the Court to the said judgment and submits that the two
issues decided by the Hon’ble Supreme Court in that case and different High
Courts were having different views and the Hon’ble Supreme Court has clarified
that aspect of the matter that execution can be filed before any Court and the
law laid down by the Madhya Pradesh High Court and Himachal Pradesh High
Court was said to be not a good law and the view of the Delhi High Court,
Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High
Court, Punjab & Haryana High Court and Karnataka High Court was found to be
a good law by the Hon’ble Supreme Court. He submits that the Award is also
questioned by the Opposite parties herein under section 34 of the Arbitration
and Conciliation Act and before the learned court at Ranchi. He further submits
that the said Sundaram Finance Limited, Represented by J. Thilak,
— 3 — C.M.P. No. 586 of 2024
2025:JHHC:19786
Senior Manager (Legal) v. Abdul Samad and Another(supra) was further
considered by the Hon’ble Supreme Court in the Case of Cheran Properties
Limited v. Kasturi and Sons Limited and Others, reported in (2018) 16
SCC 413 and refers to paragraph no.40 of the said judgment which is as
under:
“40. More recently in Sundaram Finance Ltd. v. Abdul
Samad [Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622 : (2018)
2 SCC (Civ) 593 : (2018) 2 Scale 467] , this Court considered the divergence
of legal opinion in the High Courts on the question as to whether an
award under the 1996 Act is required to be first filed in the court having
jurisdiction over the arbitral proceedings for execution, to be followed by
a transfer of the decree or whether the award could be filed and executed
straightaway in the court where the assets are located. Dealing with the
provisions of Section 36, Sanjay Kishan Kaul, J. observed thus : (SCC p. 632,
para 14)
“14. … The aforesaid provision would show that an award is to be
enforced in accordance with the provisions of the said code in the same
manner as if it were a decree. It is, thus, the enforcement mechanism,
which is akin to the enforcement of a decree but the award itself is not a
decree of the civil court as no decree whatsoever is passed by the civil
court. It is the Arbitral Tribunal, which 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.”
Explaining the provisions of Section 42 the Court held that : (SCC pp. 632-
33, paras 16-17)
“16. … The aforesaid provision, however, applies with respect to an
application being filed in court under Part I. The jurisdiction is over the
arbitral proceedings. The subsequent application arising from that
agreement and the arbitral proceedings are to be made in that court
alone.
17. However, what has been lost sight of is Section 32 of the said Act,
which reads as under:
’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.
(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.'”
The aforesaid provision provides for arbitral proceedings to be terminated
by the final arbitral award. Thus, when an award is already made, of
— 4 — C.M.P. No. 586 of 2024
2025:JHHC:19786which execution is sought, the arbitral proceedings already stand
terminated on the making of the final award. Thus, it is not appreciated
how Section 42 of the said Act, which deals with the jurisdiction issue in
respect of arbitral proceedings, would have any relevance. …”
Consequently, in the view of the Court, the enforcement of an award
through its execution can be initiated anywhere in the country where the
decree can be executed and there is no requirement of obtaining a
transfer of the decree from the court which would have jurisdiction over
the arbitral proceedings.”
4. Placing the above judgment, he submits that it has been held that
the execution can be initiated anywhere in the country and that has been held
in that case and in view of that he submits that view taken by the learned court
about the jurisdiction is not in accordance withy law.
5. On the other hand, Mr. Srivastava, the learned counsel appearing
on behalf of the Opposite party nos.1 to 3 submits that the learned court has
rightly passed the order on the ground of jurisdiction and there is no error in it.
He submits that the property of the Opposite party nos.1 to 3 are situated in
the State of Chhatisgarh at Bhilai and in view of that only Bhilai court is having
the jurisdiction of execution of the said Award. He further submits that,
however, out of the calculation of Rs.87 lacs and odd, Rs.16 lacs has already
been paid. He relied in the case of Continental Engineering Corporation v.
Sugesan Transport Pvt. Ltd. decided by the learned Single Judge of Delhi
High Court by order dated 10.01.2022. Relying on the above judgment, he
submits that only where the assets of the judgment debtor are there, only at
that place the execution can be instituted. He submits that the learned
executing court has rightly interpreted the judgment of the Hon’ble Supreme
Court in the case of Sundaram Finance Limited, Represented by J.
Thilak, Senior Manager (Legal) v. Abdul Samad and Another(supra).
On these grounds, he submits that this petition is fit to be dismissed.
6. It is an admitted position that the petitioner herein is doing
business in the State of Jharkhand and he is having refractory bricks factory in
— 5 — C.M.P. No. 586 of 2024
2025:JHHC:19786
Dhanbad. From Dhanbad, as per the agreement between the petitioner and the
Opposite party nos.1 to 3, petitioner has supplied the bricks to the Opposite
party nos.1 to 3 in the State of Chhatisgarh. Admittedly, for the dispute in
question the provision of Micro, Small and Medium Enterprises Development
Act, 2006 has been invoked at Ranchi and pursuant to that, the Award dated
13.08.2021 has been passed. Section 34 objection has also been filed by the
Opposite parties herein before the learned court having the jurisdiction at
Ranchi.
7. In the case of Sundaram Finance Limited, Represented by J.
Thilak, Senior Manager (Legal) v. Abdul Samad and Another(supra), in
paragraph no.1 of the said judgment, it has been noted as under:
“1.The divergence of legal opinion of different High Courts on the
question as to whether an award under the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as “the said Act”) is required to be first
filed in the court having jurisdiction over the arbitration proceedings for
execution and then to obtain transfer of the decree or whether the award
can be straightaway filed and executed in the Court where the assets are
located is required to be settled in the present appeal.”
8. The Conflicting views
A.The transfer of decree should first be obtained before filing the execution
petition before the Court where the assets are located.
5. The aforesaid view has been adopted by the Madhya Pradesh and the
Himachal Pradesh High Courts.
5.1.Computer Sciences Corpn. India (P) Ltd. v. Harishchandra
Lodwal [Computer Sciences Corpn. India (P) Ltd. v. Harishchandra Lodwal, 2005
SCC OnLine MP 338 : AIR 2006 MP 34] — The learned Single Judge of the
Madhya Pradesh High Court took recourse to the provisions of Section 42 of the
said Act, dealing with the issue of jurisdiction in respect of an arbitration
agreement read with Section 2(e) of the said Act which defines the “court”. In
the context of Section 36 of the said Act dealing with the enforcement of an
award prescribing that
“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”,
it was observed that the same principle would apply as for enforcing of a
decree. Since Section 37 of the Code defines the court which passes the decree
and Section 39 lays down the procedure for transfer of decree, it was opined
that for execution of an award a transfer of the decree was mandatory.
5.2.Jasvinder Kaur v. Tata Motors Finance Ltd. [Jasvinder Kaur v. Tata Motors
Finance Ltd., 2013 SCC OnLine HP 3904] of the High Court of Himachal Pradesh,
Shimla — The learned Single Judge took note of the fact that the arbitration
proceedings were to be settled in Mumbai in accordance with the said Act and
the award had been made in Mumbai. Thereafter the learned Single Judge
— 6 — C.M.P. No. 586 of 2024
2025:JHHC:19786
copiously extracted from the judgment of this Court in Swastik Gases (P)
Ltd. v. Indian Oil Corpn. Ltd. [Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd.,
(2013) 9 SCC 32 : (2013) 4 SCC (Civ) 157] The learned Judge then proceeded to,
once again, copiously extract from the then prevailing view of the Karnataka
High Court where a learned Single Judge in ICDS Ltd. v. Mangala Builders (P)
Ltd. [ICDS Ltd. v. Mangala Builders (P) Ltd., 2001 SCC OnLine Kar 153 : AIR 2001
Kar 364] had opined in favour of the aforesaid view.
B. An award is to be enforced in accordance with the provisions of the said
Code in the same manner as if it were a decree of the court as per Section 36 of the
said Act does not imply that the award is a decree of a particular court and it is only a
fiction. Thus, the award can be filed for execution before the court where the assets
of the judgment-debtor are located
5.3.Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. [Daelim Industrial
Co. Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009) 159 DLT
579] (Delhi High Court) — The learned Single Judge of the Delhi High Court
repelled the contention that the jurisdictional Section 42 of the said Act
requiring an application under Section 34 of the said Act to be filed in that
Court would not extend to the execution of a decree. The execution application
was not “arbitral proceedings”. Section 38 of the said Code applies to a decree
passed by the court prescribing that the decree may be executed by the court
which passed it, or by the court to which it was sent for execution. In case of an
award no court passes the decree. The learned Single Judge went into the
discussion of the effect of the provisions of Section 635(4) of the Companies
Act, 1956 providing for the order of the Company Law Board to be enforced by
the court in certain circumstances to draw an analogy therefrom.
5.4.Maharashtra Apex Corpn. Ltd. v. Balaji G. [Maharashtra Apex Corpn.
Ltd. v. Balaji G., 2011 SCC OnLine Ker 4039 : (2011) 4 KLJ 408] (Kerala High
Court) — The learned Single Judge expressed the view that the court cannot
insist for a decree to receive an execution application on its file and, thus, there
was no question of transfer of a decree. The execution court was to accept the
execution petition with a certified copy of the award wherever it was filed.
5.5.Kotak Mahindra Bank Ltd. v. Sivakama Sundari [Kotak Mahindra Bank
Ltd. v. Sivakama Sundari, 2011 SCC OnLine Mad 1290 : (2011) 4 LW 745]
(Madras High Court) — Section 39 of the Code enables the Court which passed
the decree to transfer it to any subordinate court even of its own motion
without application by the decree-holder. The learned Single Judge of the
Madras High Court examined the provisions of the said Act and the said Code
and in the process, a reference was made to Section 41 of the said Code
imposing an obligation upon the executing court to inform the court which
passed the decree about the completion of execution or about the failure to
execute the decree along with attending circumstances. A passing reference
was made to Section 46 of the said Act which speaks of precepts. In a nutshell,
the conclusion made was that every decree of a civil court was liable to be
executed primarily by the court which passed the decree. On the other hand, in
case of an award, the same is liable to be enforced under Section 36 of the said
Act in the same manner as if it were a decree of the court and thus the award
passed is equated to a decree of the court, only for purposes of execution. The
execution of the award does not require a seal of approval by the civil court as
distinct from the provisions under the Arbitration Act, 1940. The award cannot
be executed through the Arbitral Tribunal which passed the award and, thus,
there is no situation envisaged for the Arbitral Tribunal which passed the decree
(or award) to transfer the decree to any other court for its execution. There was
also no provision either in the Code or anywhere else to treat a court within
whose jurisdiction the arbitral proceedings took place as the court which
— 7 — C.M.P. No. 586 of 2024
2025:JHHC:19786
passed the decree. It was, thus, opined that: (Sivakama Sundari case [Kotak
Mahindra Bank Ltd. v. Sivakama Sundari, 2011 SCC OnLine Mad 1290 : (2011) 4
LW 745] , SCC OnLine Mad paras 19 & 21)
“19. While the award passed by an Arbitral Tribunal is deemed to be a decree of
a civil court under Section 36 of the 1996 Act, there is no deeming fiction
anywhere to hold that the court within whose jurisdiction the arbitral award
was passed, should be taken to be the court which passed the decree.
Therefore, the whole procedure of filing an execution petition before the court
within whose jurisdiction the arbitral award was passed, as though it is the
court which passed the decree, is pathetically misconceived.
***
21. Therefore, it is clear that no court to which an application for execution of
an award is presented, can insist on the filing of the execution petition first
before some other court and to have it transmitted to it later. It appears that
the High Court of Bombay has also adopted the same view, though not by a
very elaborate order.”
In another perspective it was observed that in view of Section 21 of the said Act
parties could determine the place of arbitration and thus, the Act transcends all
territorial barriers.
5.6.Kotak Mahindra Bank Ltd. v. Ram Sharan Gurjar [Kotak Mahindra Bank
Ltd. v. Ram Sharan Gurjar, 2011 SCC OnLine Raj 2748 : (2012) 1 RLW 960]
(Rajasthan High Court) — The learned Single Judge of the Rajasthan High Court
agreed with the view adopted by the Delhi High Court.
5.7.GE Money Financial Services Ltd. v. Mohd. Azaz [GE Money Financial
Services Ltd. v. Mohd. Azaz, 2013 SCC OnLine All 13365 : (2013) 100 ALR 766]
(Allahabad High Court, Lucknow Bench) — The learned Single Judge observed
that the arbitrator cannot be treated as a court although the award made by
him will be executed as a decree. Thus, Sections 38 and 39 of the said Code
would have no application and the award can, thus, be filed for execution as a
decree of civil court wherever the judgment-debtor resides or carries on
business or has properties within the jurisdiction of the said court.
5.8.IndusInd Bank Ltd. v. Bhullar Transport Co. [IndusInd Bank Ltd. v. Bhullar
Transport Co., 2012 SCC OnLine P&H 21674 : (2013) 2 RCR (Civil) 550] (Punjab &
Haryana High Court) — The view of the Delhi High Court referred to aforesaid
was adopted.
5.9.Chandrashekhar v. Tata Motor Finance Ltd. [Chandrashekhar v. Tata
Motor Finance Ltd., 2014 SCC OnLine Kar 12146 : (2015) 1 AIR Kant R 261]
(Karnataka High Court) — The learned Single Judge of the Karnataka High Court
opined that the question of filing an execution petition before the court which
passed the decree and then seeking a transfer of the decree to the court where
the assets are located would not arise, as an award is not a decree passed by
the court.”
9. In this regard, the view was expressed by the Hon’ble Supreme
Court in the said judgment at paragraph no.6, 7, 8, 9, 11, 11(2), 12, 13, 14 and
17, it has been held as under:
“6. In order to appreciate the controversy, we would first like to
deal with the provisions of the said Code and the said Act.
7. Part II of the said Code deals with execution proceedings.
Section 37 of the said Code defines the “court”, which passed the decree.
Section 38 of the said Code provides as to by which court the decree
— 8 — C.M.P. No. 586 of 2024
2025:JHHC:19786would be executed and reads as under:
“38. Court by which decree may be executed.–A decree may be
executed either by the court which passed it, or by the court to which it is
sent for execution.”
8. Section 39 of the said Code provides for transfer of decree and
reads as under:
“39. Transfer of decree.–(1) The court which passed a decree
may, on the application of the decree-holder, send it for execution
to another court of competent jurisdiction–
(a) if the person against whom the decree is passed actually and
voluntarily resides or carries on business, or personally works for
gain, within the local limits of the jurisdiction of such other court,
or
(b) if such person has not property within the local limits of the
jurisdiction of the court which passed the decree sufficient to
satisfy such decree and has property within the local limits of the
jurisdiction of such other court, or
(c) if the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the court which
passed it, or
(d) if the court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should be
executed by such other court.
(2) The court which passed a decree may of its own motion send it
for execution to any subordinate court of competent jurisdiction.
(3) For the purposes of this section, a court shall be deemed to be
a court of competent jurisdiction if, at the time of making the
application for the transfer of decree to it, such court would have
jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this section shall be deemed to authorise the court
which passed a decree to execute such decree against any person
or property outside the local limits of its jurisdiction.”
9. One of the relevant provisions, the effect of which has not
been really discussed in any of the judgments referred to aforesaid
is Section 46 of the said Code which defines “precepts” as under:
“46. Precepts.–(1) Upon the application of the decree-
holder the court which passed the decree may, whenever it
thinks fit, issue a precept to any other court which would
be competent to execute such decree to attach any
property belonging to the judgment-debtor and specified in
the precept.
(2) The court to which a precept is sent shall proceed to
attach the property in the manner prescribed in regard to
the attachment of property in execution of a decree:
Provided that no attachment under a precept shall
continue for more than two months unless the period of
attachment is extended by an order of the court which
passed the decree or unless before the determination of
such attachment the decree has been transferred to the
court by which the attachment has been made and the
decree-holder has applied for an order for the sale of such
property.”
11. Now turning to the provisions of Order 21 of the said Code,
which deals with execution of decrees and orders. In case a court desires
— 9 — C.M.P. No. 586 of 2024
2025:JHHC:19786
that its own decree is to be executed by another court, the manner for
doing so is provided by Rule 6, which reads as under:
“21. — Execution of Decrees and Orders
***
11.(2) Written application.–Save as otherwise provided by sub-
rule (1), every application for the execution of a decree shall be in
writing, signed and verified by the applicant or by some other person
proved to the satisfaction of the court to be acquainted with the facts of
the case, and shall contain in a tabular form the following particulars,
namely–
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the
matter in controversy has been made between the parties subsequently
to the decree;
(f) whether any, and (if any) what, previous applications have been made
for the execution of the decree, the dates of such applications and their
results;
(g) the amount with interest (if any) due upon the decree, or other relief
granted thereby, together with particulars of any cross-decree, whether
passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree is
sought; and
(j) the mode in which the assistance of the court is required, whether–
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by the sale
without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
6. Procedure where court desires that its own decree shall be
executed by another court.–The court sending a decree for
execution shall send–
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not
been obtained by execution within the jurisdiction of the court by
which it was passed, or, where the decree has been executed in
part, the extent to which satisfaction has been obtained and what
part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no
such order has been made, a certificate to that effect.”
12. The manner of presentation of an application is contained in
Rule 11(2) of Order 21, which reads as under:
“21. — Execution of Decrees and Orders
***
(v) otherwise as the nature of the relief granted may require.”
13. A perusal of the aforesaid shows that what is sought to be
disclosed is that the details like the number of suits, appeal against the
decree, etc. find a place, which really does not have a relevance to the
fiction of an award to be treated as a decree of the court for purposes of
execution.
— 10 — C.M.P. No. 586 of 2024
2025:JHHC:19786
14. We would now like to refer to the provisions of the said Act,
more specifically Section 36(1), which deals with the enforcement of the
award:
“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 to 1908), in the same manner as if it were a
decree of the court.”
The aforesaid provision would show that an award is to be
enforced in accordance with the provisions of the said Code in the
same manner as if it were a decree. It is, thus, the enforcement
mechanism, which is akin to the enforcement of a decree but the
award itself is not a decree of the civil court as no decree
whatsoever is passed by the civil court. It is the Arbitral Tribunal,
which 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.
17. However, what has been lost sight of is Section 32 of the said
Act, which reads as under:
“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.
(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.”
The aforesaid provision provides for arbitral proceedings to be
terminated by the final arbitral award. Thus, when an award is
already made, of which execution is sought, the arbitral
proceedings already stand terminated on the making of the final
award. Thus, it is not appreciated how Section 42 of the said Act,
which deals with the jurisdiction issue in respect of arbitral
proceedings, would have any relevance. It does appear that the
provisions of the said Code and the said Act have been mixed up.
10. It has been held in the said judgment that the view adopted by
the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery
Ltd. reported in 2009 SCC OnLine Del 511 records that Section 42 of the
Arbitration and Conciliation Act, 1996 would not apply to an execution
— 11 — C.M.P. No. 586 of 2024
2025:JHHC:19786
application which is not an arbitral proceeding and that section 38 of the Civil
Procedure Code [CPC] would apply to a decree passed by the learned court
while in the case of an Award, no court has passed the decree and in light of
above, the conclusion was made by the Hon’ble Supreme Court in the case of
Sundaram Finance Limited, Represented by J. Thilak, Senior Manager
(Legal) v. Abdul Samad and Another(supra) at paragraph nos.20, 21 and
22 of the said judgment, which is as under:
“20. We are, thus, unhesitatingly of the view 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.
21. The effect of the aforesaid is that the view taken by the
Madhya Pradesh High Court [Computer Sciences Corpn. India (P)
Ltd. v. Harishchandra Lodwal, 2005 SCC OnLine MP 338 : AIR 2006 MP
34] and the Himachal Pradesh High Court [Jasvinder Kaur v. Tata Motors
Finance Ltd., 2013 SCC OnLine HP 3904] is held to be not good in law
while the views of the Delhi High Court [Daelim Industrial Co.
Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009) 159
DLT 579] , Kerala High Court [Maharashtra Apex Corpn. Ltd. v. Balaji G.,
2011 SCC OnLine Ker 4039 : (2011) 4 KLJ 408] , Madras High Court
[Kotak Mahindra Bank Ltd. v. Sivakama Sundari, 2011 SCC OnLine Mad
1290 : (2011) 4 LW 745] , Rajasthan High Court [Kotak Mahindra Bank
Ltd. v. Ram Sharan Gurjar, 2011 SCC OnLine Raj 2748 : (2012) 1 RLW
960] , Allahabad High Court [GE Money Financial Services Ltd. v. Mohd.
Azaz, 2013 SCC OnLine All 13365 : (2013) 100 ALR 766] , Punjab and
Haryana High Court [IndusInd Bank Ltd. v. Bhullar Transport Co., 2012
SCC OnLine P&H 21674 : (2013) 2 RCR (Civil) 550] and Karnataka High
Court [Chandrashekhar v. Tata Motor Finance Ltd., 2014 SCC OnLine Kar
12146 : (2015) 1 AIR Kant R 261] reflect the correct legal position, for
the reasons we have recorded aforesaid.
22. The appeal is accordingly allowed and the impugned order
dated 20-3-2014 is set aside restoring the execution application filed by
the appellant before the Morena courts. The parties are left to bear
their own costs.”
11. In view of the above and following the judgment of the Hon’ble
Apex Court, similar view was also taken by the Allahabad High Court in the
matter of Madhyanchan Vidyut Vitran Nigam Limited Through the
Managing Director v. Shashi Cable Through its authorized signatory
[under Article 227 No.3384 of 2023] wherein at paragraph no.12 it has
been held as under:
— 12 — C.M.P. No. 586 of 2024
2025:JHHC:19786
12. From the judgments delivered by the Counsel for the parties
and referred above, the Executing Court having jurisdiction to execute the
award can be any court anywhere in the Country, where the decree can be
executed and thus in view of the law expounded in the case of Cheran
Properties Limited (Supra), I have no hesitation in holding that the
objection of the petitioner that the Court at Lucknow had no jurisdiction
loses its relevance and is worthy of rejection. Thus, on the ground of
jurisdiction, the argument of the Counsel for the petitioner cannot be
sustained as there is no error or infirmity in the order impugned dated
10.03.2023 passed by the Commercial Court, Lucknow and the same is
upheld.
12. Under Article 227 No.2704 of 2023, in the case of Bharat
Petroleum Corporation Limited, Mumbai Through Territorial Manager
Retail Territory Gonda v. Anup Kumar Modi a similar view was taken by
the Allahabad High Court.
13. This Court is of the view that the enforcement of an Award
through its execution can be initiated anywhere in the country where the
decree can be executed and there is no requirement of obtaining the transfer of
the decree from the learned court which would have jurisdiction over the
arbitral proceeding.
14. Now coming to the present case, it is undisputed that the dispute
arises out of the supply of refractory bricks by the petitioner from Dhanbad in
the State of Jharkhand to Bhilai in the State of Chhatisgarh, meaning thereby,
the petitioner is having the factory at Dhanbad and in view of that even if the
office of the Opposite parties herein, registered office thereof is said to be
situated at Mumbai and the corporate office is said to be situated at Bhilai in
the State of Chhatisgarh and the arbitral Award was pronounced at Ranchi, that
would make no difference in filing of the execution proceeding at Dhanbad in
the State of Jharkhand in light of interpretation made by the Hon’ble Apex
Court in the case of Sundaram Finance Limited, Represented by J.
Thilak, Senior Manager (Legal) v. Abdul Samad and Another(supra) as
well as Cheran Properties Limited v. Kasturi and Sons Limited and
— 13 — C.M.P. No. 586 of 2024
2025:JHHC:19786
Others(supra) by the Hon’ble Apex Court and the provision of the Civil
Procedure Code as well as under the Arbitration and Conciliation Act, 1996 and
that is still occupying the field. Therefore, this Court is of the firm view that the
impugned order is not in conformity with the law laid down by the Hon’ble Apex
Court.
15. Now, coming to the another argument of the learned counsel
appearing for the Opposite parties herein with regard to the filing of the
objection under section 34 of the Arbitration and Conciliation Act, 1996 at
Ranchi, further fortifies that against an Award given at Ranchi, the Opposite
parties themselves have preferred an appeal under Section 34 of the Arbitration
and Conciliation Act, 1996, before the learned court at Ranchi, and therefore,
the Opposite parties herein acquiescence their rights and their objection
certainly barred by Section 4 of the Arbitration and Conciliation Act, 1996. The
Opposite parties cannot raise objection at this stage about the jurisdiction.
16. In view of above facts, reasons and analysis, the impugned order
dated 12.03.2024 in Execution Case No.189 of 2022 passed by learned Civil
Judge, Senior Division-I, Dhanbad, is, hereby, set-aside. The said execution
case is hereby restored to the file of the learned court.
17. The learned court will proceed further in accordance with law.
18. This petition is allowed in the above terms and disposed of.
19. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
— 14 — C.M.P. No. 586 of 2024