BLA Projects Pvt. Ltd vs Asansol Durgapur Development Authority

Sabyasachi Bhattacharyya, J

The award-holder in an arbitral proceeding under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the 1996 Actâ€) 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.

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.

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, 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.

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.

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 Procedure to the enforcement of an award, which ingredient is entirely absent in Section 34.

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.

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.

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.

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.

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.

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.

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 DevelopmentCorporation 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.

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 Actâ€), learned counsel submits that the Additional District Judges (referred to in the

Act as “Additional Judgesâ€) 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.

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 (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.

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 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.

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.

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 under the provisions thereinbefore contained to another court,

then to such court or to the proper officer thereof.

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.

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.

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 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.

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.

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.

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 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.

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.

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.

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.

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 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.

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 agreementâ€. 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.

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.

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.

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). “Courtâ€​ means â€

(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;

(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.â€" (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 whereâ€

(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.

--- --- ---

S. 36. Enforcement.â€"(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

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.â€"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.â€​

“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.

--- --- ---

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.â€​

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 agreementâ€​, no line of distinction can be drawn between pre and post-termination proceedings. This view, in fact, is

endorsed in Associated Contractors (supra).

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.

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.

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.

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, 1908â€, 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.

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 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.

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.

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 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.

The Supreme Court, in its conclusive paragraph (paragraph 25) took into consideration applications under Sections 9 and 34 of the 1996 Act.

However, it is notable to mention that Section 36 of the 1996 Act did not find place in the said consideration.

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.

Nowhere in Associated Contractors (supra) did the Supreme Court consider the context of Section 36 of the 1996 Act.

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.

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.

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.

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.

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.

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.

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.

Associated Contractors (supra) contemplated only ‘applications’ under part I to be governed by Section 42.

In view of the discussion above, an application for enforcement of an arbitral award is not covered by Section 42 of the 1996 Act.

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.

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.

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.

Section 37(1)(a) is from an independent court proceeding, having no connection with the arbitral tribunal in the context of the present analogy.

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 in the context of sub-section (1)(b), the court has to be treated to be a superior forum than the arbitral tribunal.

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.

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.

Taking such view in conjunction with the ratio laid down in Sundaram Finance, even excluding the portion thereof which is contrary to Associated

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.

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.

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.

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.

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 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).

Strictly speaking, such a transfer was the prerogative of the District Judge and could not have been exercised by the Additional District Judge.

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.

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).

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.

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.

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.

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

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.

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.

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.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.