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2016 DIGILAW 774 (MP)

Mohammad Hasan v. Ram Finance Company Ltd.

2016-09-02

SHEEL NAGU

body2016
ORDER 1. The power of Superintendence is invoked under section 227 of the Constitution of India to assail the interlocutory order passed on 21.8.2015 by which objection in regard to territorial jurisdiction of the executing Court for proceeding with the execution case under section 36 of the Arbitration and Conciliation Act, 1996 has been rejected after relying upon decision of the Single Bench of this Court in the case of Magma Fincorp Ltd v. Rajbhan Singh, reported in 2015 (2) MPLJ page 706. 2. Learned counsel for the petitioner primarily relied upon decision of the apex Court in the case of Mohit Bhargava v. Bharat Bhushan Bhargav and others, reported in 2007(2) JLJ 383 =2007(3) MPLJ 419, to contend that the mandate in section 38 and 39 r/w Order 21 rule 3 CPC which is made applicable to execution proceedings by virtue of section 36 of Act of 1996 is to the effect that execution case shall be filed in the same Court where decree sought to be executed was passed. 3. Perusal of the finding recorded in the impugned order elicits that the Court below has relied upon decision in the case of Magma (supra), which has upheld execution proceedings in respect of an Arbitral Award instituted in the Court where the property of Judgment Debtor was situated. The Single Bench in the said case was persuaded to the view that since an Arbitral Tribunal is not a Court and also due to inapplicability of section 38 CPC to an award passed by Arbitral Tribunal. In Magma case the earlier decision of Single Bench of this Court in the case of Computer Sciences Corporation India Pvt. Ltd v. Harishchandra Lodwal and another, reported in 2005 (4) MPLJ 164 = AIR 2006 MP 34 , has been distinguished on facts by holding that the case of Computer Science (supra), dealt with the issue of return of transfer of decree. 4. 4. Learned counsel for the petitioner submits that since the Arbitral Award in the case at hand was passed at Nagpur there is no option available to the respondent decree holder but to initiate the execution proceedings at the Court at Nagpur and if necessary thereafter seek transfer under section 39 CPC of those execution proceedings to the Shivpuri Court in M.P. For this purpose learned counsel in support of his contention has placed reliance on the mandate of section 37 and 38 of CPC. 5. In the instance case, the execution proceedings of the Arbitral Award passed on 12.12. 2012 at Nagpur, have been initiated at the Court of Shivpuri where prima facie the judgement debtor is domiciled. 6. This Court is of the considered view that the decision of Magma (supra), is squarely applicable to the facts attending the present case. 7. Another aspect which deserves to be dealt with is the applicability of the apex Court decision in the case of Mohit Bhargav (supra). Close Scrutiny of the law laid down by apex Court in this case reveals that the same did not deal with the fact situation where Arbitral Award was sought to be executed but was attended with fact situation where a decree passed under the Code of Civil Procedure was being executed. Thus the fact situation attending the decision in the case of Mohit Bhargav (supra), of the apex Court is different than the fact situation attended herein where the territorial jurisdiction of the Court entertaining the execution of Arbitral Award is in question. 8. In view of the above, the decision of the Court below rejecting the objection regarding territorial jurisdiction of the Shivpuri Court entertaining the execution proceeding of the Arbitral Award dated 12.12. 12 passed by Arbitration Tribunal at Nagpur cannot be found fault with as it suffers neither from any illegality nor want of jurisdiction. 9. Before parting, this Court deems it appropriate to record another reason in support of the instant order. If the course canvased by the petitioner is accepted then it would lead to avoidable delay, multiplicity of litigation and excessive involvement of Courts in the field of Arbitration. 9. Before parting, this Court deems it appropriate to record another reason in support of the instant order. If the course canvased by the petitioner is accepted then it would lead to avoidable delay, multiplicity of litigation and excessive involvement of Courts in the field of Arbitration. The Arbitration and Conciliation Act 1996 is founded upon the concept of minimizing interference of Courts in arbitral proceedings and to allow the parties to resolve their dispute as far as possible amongst themselves without judicial aid or interference, expediently. The impugned order is passed by keeping these salutary object behind the Act of 1996, in mind. The decisions of the apex Court in the case of P. Anand Gajapathi Raju and others v. PVG Raju (Dead) and others, reported in (2000) 4 SCC 539 , can profitably be referred to for this purpose. Relevant para of the said decision is reproduced herein below for convenience and ready reference :- 4. Part I of the new Act deals with domestic arbitration. Section 5 which is contained in Part I of the new Act, defines the extent of judicial intervention in Arbitration proceedings. It says that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part-I, no judicial authority shall intervene except where so provided in that Part. Section 5 brings out clearly the object of the new Act, namely, that of encouraging resolution of disputes expeditiously and less expensively and when there is an arbitration agreement, the Court's intervention should be minimal. 10. Accordingly, present petition having no force is dismissed. 11. No order as to costs. R. K. Soni for petitioner; Mohammad Arshad for respondents.