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Harish Tandon, J.—1. There has been a bunch of litigations by way of an execution of an award filed before this Court for recovery of sum below the pecuniary jurisdiction of this Court. A preliminary objection is raised whether the High Court in its Original Side can execute such award because of the definition of the Court enshrined under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996. Some of the execution cases are filed by adding the interest in terms of an award on a principal sum below 10 lacs for the purpose of jurisdiction. In some of the cases the entire cause of action arose outside the territorial jurisdiction of the Original Side of the High Court but the execution is levied either the decree holder or the judgment debtors are within the jurisdiction. Some cases have been filed invoking the provisions of Section 42 of the Act as in earlier point of time, an application under Section 9 of the said Act was filed before this Court.
The points which arose in the bundle of the execution cases under consideration are firstly, whether the Original Side of the High Court confirms to the definition of "Court" as defined under Section 2(1)(e) of the Act if the sum awarded by the arbitrator is below Rs. 10 lacs. Secondly, whether the award can be enforced by the High Court in its Original Side had the dispute been the subject matter if the suit, is a subject matter of the arbitral proceeding. thirdly, if an approach is made to the High Court in its Original Side at an earlier point of time all subsequent application including an application for enforcement of the award is required to be filed before the same Court in view of Section 42 of the Act. Fourthly, if the claim is awarded for a sum less than Rs. 10 lacs, whether such award can be enforced by the High Court in its Original Side as the quantum of interest if added to the original sum would exceed Rs. 10 lacs.
Before proceeding to deal with the aforesaid points it would be profitable to quote relevant provisions of the said Act which are as under:--
"Section 2(1) (e): "Court" means 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;"
"Section 36: Enforcement: Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, 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."
"Section 42: Jurisdiction: Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."
The definition clause under Section 2(1) of the Act starts with expression "in this part, unless the context otherwise requires" and therefore there is no ambiguity to say that wherever the word "Court" appearing in Part 1 of the said Act it should be assigned the same meaning unless there is an express or by necessary implication the context otherwise requires. The Arbitration and Conciliation Act is a complete code on the matter pertaining to arbitration and consolidates and amends the law relating to arbitration to bring it in harmony with UNCITRAL Model. It is distinct from its predecessor and there also appears to be an apparent difference between the definition of the Court assigned in an earlier Act and in this Act. In this regard, the reference can be made to a judgment of the Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in , 2011(8) SCC 333 wherein it is held:--
"89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it "a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded.
We, thus, arrive at the conclusion regarding the exclusion of a letters patent appeal in two different ways; one, so to say, on a micro basis by examining the scheme devised by Sections 49 and 50 of the 1996 Act and the radical change that it brings about in the earlier provision of appeal under Section 6 of the 1961 Act and the other on a macro basis by taking into account the nature and character of the 1996 Act as a self-contained and exhaustive code in itself."
By virtue of Section 36 of the Act the award partakes a character of a decree and is enforceable as such under the Code of Civil Procedure. The point which assumes importance in the present case is that which would be the Court where such award can be enforced. Will it be a Court of the lowest grade or will it be the Court defined under Section 2(1)(e) of the Act or in case of an earlier application having filed before a Court in view of provisions of Section 42 the said Court shall be the executing Court for the purpose of enforcement of award. The answer can be traced by harmonizing the different provisions contained in the Act. Section 36 is somewhat dependant upon Section 34 as the award is not capable of being enforced unless the time fixed for making an application to set aside the award under Section 34 has expired. Section 34 contains an exhausting provisions to challenge an award before the Court. It is somewhat settled that the definition assigned for the word in the special statute should be given the same meaning wherever such word is appearing therein. Therefore, the word "Court" wherever appears in Part 1 of the Act has to be given and/or assigned the same meaning that of a Court under Section 2(1)(e) of the Act. The Court under the said Act competent to deal the matter relating to arbitration is a principal Civil Court of Original Jurisdiction in a district and includes the High Court in exercise of its Ordinary Original Civil Jurisdiction provided the questions forming the subject matter of arbitration if it had been the subject matter of a suit but does not include any Civil Court inferior in grade of such principal Civil Court or the Court of Small Causes. By virtue whereof though the award is enforceable under the Code of Civil Procedure but its enforceability is restricted to a principal Civil Court of Original Jurisdiction in a district or the High Court exercising Ordinary Original Civil Jurisdiction and not the Court of first grade under Section 15 of the Code of Civil Procedure. The determinant factor in my view for the purpose of ascertaining the competence of the Court for enforcing the award cannot be a Civil Court inferior to the District Court or the High Court in exercise of its Ordinary Original Civil Jurisdiction. The inclusive definition gives a wider meaning to the word ''Court''. There is no difficulty in understanding the definition of the Court in relation to the matter coming under Part 1 of the Act. The definition given under Section 2(1)(e) of the Act overrides the provision of Section 15 of the Code and no reliance can be placed thereupon. The competence of the Court to enforce the award under the Code of Civil Procedure is relatable to the definition given under Section 2(1)(e) of the Act.
After the promulgation of the City Civil Court Act, 1956, the High Court in its Ordinary Original Civil Jurisdiction can entertain a suit where the value of the subject matter is above 10 lacs otherwise the City Civil Court is competent to determine and decide the dispute falling below such pecuniary value. The power to be exercised under the said Act by the Court depends upon the value of the subject matter and in the event it falls below Rs. 10 lacs, the City Civil Court shall be the Court within the meaning thereof for the purpose of enforcing the award. What is important in this regard is the value of the subject matter and not the awarded sum for the purpose of jurisdiction?
The word ''sum'' appearing in Section 31(7) of the Act came up for consideration before the Supreme Court in case of Hyder Consulting (UK) Ltd. - Vs- State of Orissa reported in , 2015(2)SCC 189 wherein the distinction is drawn between the principle amount and sum in the following:--
"4. Clause (a) of sub-section (7) provides that where an award is made for the payment of money, the Arbitral Tribunal may include interest in the sum for which the award is made. In plain terms, this provision confers a power upon the Arbitral Tribunal while making an award for payment of money, to include interest in the sum for which the award is made on either the whole or any part of the money and for the whole or any part of the period for the entire pre-award period between the date on which the cause of action arose and the date on which the award is made. To put it differently, sub-section (7)(a) contemplates that an award, inclusive of interest for the pre-award period on the entire amount directed to be paid or part thereof, may be passed. The "sum" awarded may be the principal amount and such interest as the Arbitral Tribunal deems fit. If no interest is awarded, the "sum" comprises only the principal. The significant words occurring in clause (a) of sub-section (7) of Section 31 of the Act are "the sum for which the award is made". On a plain reading, this expression refers to the total amount or sum for the payment for which the award is made. Parliament has not added a qualification like "principal" to the word "sum", and therefore, the word "sum" here simply means "a particular amount of money". In Section 31(7), this particular amount of money may include interest from the date of cause of action to the date of the award."
The point arose in the said report was whether the arbitrator is competent to award the interest pendente lite and such sum can be brought within the inclusive definition of sum. The further point that arose was whether the Court can award an interest upon an interest. It is held that the sum imbibed within itself the interest pendente lite under Section 31(7)(a) and Clause (b) does not put any fetter in awarding further interest on the said sum. The aforesaid judgment has some relevance to the question where the arbitrator passed an award of a sum which includes principle amount as well as the pendente lite interest and become enforceable through Court if the subject matter would have been the subject matter of a suit. For the purpose of Section 36 of the Act the sum awarded by the arbitrator is not the determinant factor but what is relevant is the question forming the subject matter of arbitration had it been a subject matter of a suit. To illustrate with a hypothetical example where "A" has claimed a sum of Rs. 50 lacs against "B" in an arbitral proceeding. "B" took a defence that he has already paid a sum of Rs. 45 lacs and claimed a set off. The arbitrator passed an award for Rs. 5 lacs together with an interest. In such eventuality will it be the High Court in its Ordinary Original Jurisdiction or the City Civil Court is the Court to enforce such award. The definition of the Court gives complete answer to such eventuality as the award is capable of being enforced by the High Court in its exercise of Ordinary Original Civil Jurisdiction since the subject matter of an arbitration if it would have been a subject matter of the suit was competent to be filed before such Court. If the suit cannot be filed before the City Civil Court it is irrelevant that the award contains a sum below the pecuniary jurisdiction of the High Court in its Ordinary Original Civil Jurisdiction. Any other interpretation would be opposed to the definition assigned to the Court under Section 2(1)(e) of the Act. The reference in this Court can be made to a judgment of the Calcutta High Court in case of Bidyadhar Bachar & Ors. v. Manindra Nath Das & Ors. reported in , AIR 1925 CAL 1076. In the said report, the reference was made to full court because of the difference in opinion. In the said report the suit for recovery of possession and mesne profit was instituted before the Court of Munsiff which culminated into the decree. Subsequently, an enquiry as to the mesne profit was made under Order 20 Rule 12 of the Code and was assessed over Rs. 1,000/-. The Munsiff returned the execution case as it has a pecuniary jurisdiction up to Rs. 1,000/- and therefore felt that it is incompetent to execute the said decree. It is held that if the Munsiff was competent to entertain the suit and to pass the decree it is immaterial that after making investigation as to the mesne profit the amount exceeds pecuniary jurisdiction.
The ratio laid down in AIR 1925 CALCUTTA is accepted and reiterated in a Co-ordinate Bench decision in case of Arup Kumar Mukherjee v. Regional Institute of Printing Technology & Anr. reported in , AIR 2003 CAL 40 in the following:--
"3. After having considered the submissions made by the learned Advocates for the parties and the materials on record, I am inclined to apply the ratio decided in the case of Bidyadhar Bachar (, AIR 1925 CAL 1076) (supra) as referred to by the learned counsel for the petitioner. The facts of that case squarely fit with the facts of the instant case before me. In the instant case also the decree was passed for damage and when the said decree was put into execution it appeared that the amount of such damage is much more than the pecuniary jurisdiction of the learned Munsif. But the quantum of the amount in execution is not the matter to be reckoned with for the purpose of execution of the decree, for, in the instant case the suit was for damage and thus having applied the ratio decided in the case of Bidyadhar Bachar (, AIR 1925 CAL 1076) (supra) the order impugned passed by the learned executing Court appears to be not in conformity with the position of law thus it is candid that the learned executing Court in passing the order impugned had not exercised the jurisdiction vested upon it. And this has promoted me to distinguish the ratio decided in the case of Nibaran Chandra (, AIR 1963 SC 1895) (supra) as referred to by the learned Advocate for the O.P/defendant. With this observation I am inclined to hold that the present revisional application under Art. 227 of the Constitution of India is liable to be allowed."
The Rajasthan High Court in case of Gordhanlal v. CP Industries Pvt. Ltd. reported in , AIR 1971 RAJ 254 held that the Court which passed a decree is competent to execute such decree even if the sum in terms of the decree at the time of execution exceeds pecuniary jurisdiction. It is apt to quote Paragraph 9 of the said report which runs thus:--
"9. Under Section 38, the primary Court which is competent to execute a decree is the Court which passed it. That Court remains competent to execute the decree even if the amount of the decree at he time of execution goes up beyond the limits of pecuniary jurisdiction. The same principle should in my opinion apply in considering what Court is competent to execute a decree."
The importance of pecuniary jurisdiction looses under Section 2(1)(e) of the Act as the Court inferior in grade of a District Court or the High Court exercising Ordinary Original Civil Jurisdiction is not competent to execute the award under the said Act. It is only the District Court which has jurisdiction or the High Court in its Ordinary Original Civil Jurisdiction.
An argument is advanced at the Bar that since there is no Court of first instance the award which is enforceable as decree has its independent footing and therefore the sum awarded therein shall be the sole factor for the purpose of pecuniary jurisdiction. I am unable to accept the above contention for the reason that the executability of an award is dependant upon the definition of a Court given in the said Act and it is to be seen whether the subject matter of an arbitration if would have been the subject matter of a suit which Court was competent to determine such suit.
The judgment rendered in Panaji Girdharlal v. Ratanchand Hajarimal Marwadi reported in , AIR 1933 BOMBAY 364 does not seem to be of any assistance to the decree holder. The aforesaid judgment is cited for the proposition that the Money Decree should be executed for recovery of the entire claim and must include not only the principle sum but also the interest and cost awarded by the Court. The point, which arose therein was whether a decree can be executed in piecemeal. It appears that the claim in the suit was Rs. 1359/- and a decree was passed for the said sum along with an interest at the rate of 6% together with cost. An execution application was filed for recovery of the principle amount and the cost as the decree holder omitted to include the interest therein. Subsequently, execution application was filed for recovery of the interest and the point arose whether the execution can be levied in piecemeal. In the above backdrop, it is held:--
"if piecemeal execution is permissible in India, it seems to me that the party executing must show, not that that right is forbidden by the Code, but that it is conferred by the Code. There is nothing in the code which expressly authorizes piecemeal execution, and a good many of the provisions of O. 21, which deals with execution, seems to me opposed to the idea that there can be more than one execution of a money decree. For example, R.10, O.21 provides for the execution of the decree, and not of a portion of the decree R.11 (2) (g) provides that in the particulars to be stated in the application for execution the amount, with interest if any due upon the decree, must be stated and there is no express provision for stating the amount for which the execution creditor desires to levy execution."
The judgment in Hyder Consulting (UK) Ltd. (supra) may further be noticed for the point which fell for consideration on the authority of the arbitral tribunal to award interest on interests and the interpretation of the word "sum" appearing in Section 31 (7) of the Act. It is held that the word "sum" used in clause (a) of Sub-section 7 of Section 31 of the Act is used as noun to simply mean an amount of money and may include principle and interest or one of the two. It is clear therefrom that the asserted amount of sum in the award whether it includes the principle or the interest may carry a further interest at the prescribed rate from the date of an award till the payment in terms of clause (b) of the aforesaid provision. Observations made in paragraph 14 of the said report may be conveniently quoted as under:
"14. In fact this is a case where the language of sub-section (7) clauses (a) and (b) is so plain and unambiguous that no question of construction of a statutory provision arises. The language itself provides that in the sum for which an award is made, interest may be included for the pre-award period and that for the post-award period interest up to the rate of eighteen percent per annum may be awarded on such sum directed to be paid by the arbitral award."
In case of ICDS v. Mangala Builders Pvt. Ltd. reported in , AIR 2001 Karnataka 364, the execution application for enforcement of the award was filed before the Additional Civil Judge (Senior Division), Mangalore as the properties of the judgment-debtors were situated within the territorial jurisdiction of the said court. A preliminary objection was raised over the jurisdiction of the court to entertain an application for execution in view of the definition of the court under Section 21 (e) of the Act. It is held that the principal District Judge can entertain any application arising from the said Act, and no other Court either inferior in grade of the said Court or otherwise including the Court of Small Causes is competent to entertain such application. There is no quarrel to the proposition of law laid down therein. It is manifest from the definition clause that it is only the principal Civil Court in a District or the High Court in exercise of its Ordinary Original Civil Jurisdiction can entertain any proceeding flowing from or arising out of the said Act. The similar observations are made in case of Mahesh B. Shah v. CV Joseph reported in AIR 2012 KERALA 290.
The judgment of the Andhra Pradesh High Court in case of Ankati Satyamaiah v. Sallangula Lalaiah and Anr. reported in , 2003(2) Arbitration Law Report 431(AP) can be looked into for limited purposes on maintainability of the execution proceeding in a Court inferior in grade of the principal Civil Court in the district. In the said report the award was passed at Hyderabad when the parties were the residents of Miryalaguda, Hyderabad and Nalgonda and an execution petition was filed in the Court of Civil Judge (Senior Division), Miryalaguda. The execution petition was returned to be presented before the appropriate Court holding that the Court has no jurisdiction to entertain the same. It is held that the expressions "the principal Civil Court of Original Jurisdiction in a district" is to be construed and interpreted in the light of the definition of a district engrafted under Section 2(4) of the Code of Civil Procedure and the definition of "District Judge" envisaged in Section 3(17) of the General Clauses Act. The inevitable conclusion arrived therein was that the Civil Judge (Senior Division) being the Court of inferior grade is incompetent to execute an award which is a deemed decree under Section 36 of the Act. Incidentally, it may be noticed that the Hon''ble Judge held that the enforceability before the Court which is a principal Civil Court of Original Jurisdiction in the district is dependant upon the residuary provision of Section 20 of the Code of Civil Procedure and if the suit were to be filed for the subject matter of dispute before the arbitrator, it is that Court which has a jurisdiction to enforce the award.
The judgement rendered in case of Eskay Engineers v. Bharat Sanchar Nigam Limited, Raigad Telecom Division reported in , 2009(4) Arbitration Law Report 369 (Bombay) may be noticed for the purpose of the jurisdiction of the Court to enforce the award when an earlier application under Section 34 of the Act was taken out before the Delhi High Court exercising Ordinary Original Civil Jurisdiction. In the said report the award for money was passed by the arbitrator the situs whereof was Khamgaon in the district of Buldana for a sum of Rs. 76 lacs & odd, and the refund of Rs. 21 lacs & odd to the judgment debtor together with the cost of the proceeding. The judgment debtor i.e. BSNL challenged the award under Section 34 of the Act before the Delhi High Court and the order of dismissal was carried to the Division Bench. The Division Bench affirms the order of the Single Bench and such order was further challenged before the Supreme Court in Special Leave Petition. The BSNL could not succeed before the Supreme Court as well and thereafter an application for execution was filed before the Original Side of Delhi High Court. The preliminary objection was raised as to the jurisdiction of the Court to execute such award in view of the definition of the Court enshrined under Section 2(1)(e) vis-�-vis Section 36 of the Act. It is held that Section 36 is somewhat dependant upon Section 34 of the Act as former provision can only be activated when time to challenge the award provided under Section 34 has expired. It is further held that Section 36 speaks of enforceability and Section 42 of jurisdiction. In view of the specific language used in Section 42 the legislative intent can be gathered and therefore all further application arising out of arbitral proceeding including an application for execution shall lie to a Court if an approach has been made earlier by either of the parties to the Court.
The judgment of the Kerala High Court in case of Metro Silks and Sarees v. Darpan Traders reported in 2001(1) R.A.J 646 relied upon in this case though not relevant for the purpose of deciding the points involved herein but it is deduced therefrom that the Section 2(1)(e) controls Section 34 and 36 of the Act but subject to Section 42 thereof.
It would be relevant to notice the recent judgment of the Division Bench of this Court in case of Sushanta Malik v. SREI Equipment Finance Limited & Anr. reported in , 2015(6) Arbitration Law Report 485 (Cal) wherein the point arose that in the event the subject matter of the arbitral proceeding having pecuniary value less than Rs. 10 lacs whether the High Court in exercise of Ordinary Original Civil Jurisdiction or the City Civil Court is the Court within the meaning of Section 2(1)(e) of the Act. An argument was advanced before the Division Bench that the City Civil Court being the Court subordinate to or inferior in grade of the High Court it is the High Court in its Original Side a principal Civil Court of Original Jurisdiction in the district and competent to entertain any application arising under or flowing from the agreement and the arbitral proceeding. The Co-ordinate Bench was of the view that in view of the inclusive definition of the Court it is one Court which can be termed as a principal Civil Court in the district and therefore in case the subject matter falls within the territorial jurisdiction of the High Court exercising Ordinary Original Civil Jurisdiction it is that Court which will have the jurisdiction alone irrespective of its pecuniary value. The other Co-ordinate Bench could not agree and conquer with the said view and refer the matter to the larger bench. The Division Bench held:--
"51. In construing ''court'' under Section 2(1)(e) of the 1996 Act, we cannot overlook the phrase "having jurisdiction to decide the question forming the subject matter of the arbitration, if the same can be the subject matter of a suit". As held by the Full Bench of this Court in Hirday Nath Roy and affirmed by the Supreme Court in Official Trustees, West Bengal v. Sachindra Nath Chatterjee (supra), jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The classification of jurisdiction into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter is of a fundamental character.
In construing the phrase "having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit" in the definition of "court" in Section 2(1)(e) of the 1996 Act, there is no reason why the expression ''jurisdiction'' should only be read as territorial jurisdiction, to the exclusion of pecuniary jurisdiction. Such a construction would amount to substitution of the words having jurisdiction in Section 2(1)(e) with the words having territorial jurisdiction or alternatively reading into the definition, the words ''excluding territorial jurisdiction'', which is not permissible.
The 1996 Act being a comprehensive special statute, exhaustively dealing with matters relating to arbitration, an application under the said Act would have to be filed before the highest civil court in the district, including the High Court, exercising original civil jurisdiction, and having jurisdiction to decide the subject matter of the arbitration as if the same had been the subject matter of a suit, notwithstanding Section 15 of the Civil Procedure Code, which requires a suit to be filed in the lowest court having pecuniary jurisdiction. However, where the court lacks pecuniary jurisdiction it would not be court within the meaning of Section 2(1)(e) of the 1996 Act.
It is true that there is a difference between the definition of court in Section 2(1)(e) of the 1996 Act and the definition of court in Section 2(c) of the Arbitration Act, 1940. Under the Arbitration Act, 1940, an application could be filed in any civil court having jurisdiction over the subject matter of the arbitration, if the same had been the subject matter of a suit. However, under the 1996 Act, it is the principal court having jurisdiction to decide the questions forming the subject matter of arbitration, if the same had been the subject matter of a suit. Jurisdiction to adjudicate the subject matter of a suit includes, territorial jurisdiction, pecuniary jurisdiction and jurisdiction in respect of the subject matter. Where the highest court has jurisdiction, territorial, pecuniary and in respect of the subject matter, it is that court alone which is competent to decide matters under the 1996 Act."
The judgment of the Orissa High Court in case of Matrumal v. Madanlal Gourishankar reported in , AIR 1957 ORISSA 177 cannot be of any help to the questions agitated in this case. In the said report it is held that the pecuniary jurisdiction to entertain the suit would be the criteria for determining the jurisdiction for executing the decree passed thereon. At the first blush, such proposition appears to have some relevance but after noticing the distinction between the definition clause appearing in 1940 Act and 1996 Act, it is no longer res-integra that the pecuniary aspect looses its efficacy as it is a principal Civil Court in a district or the High Court exercising Ordinary Original Civil Jurisdiction is a court competent to entertain an application under the later Act. There is an express embargo in the definition clause that the Court inferior in grade of the said Court is not competent to entertain any application including an application for execution. It is in that sense, the pecuniary value of the subject matter is of no relevance. It is, thus, the District Judge who is the principal Civil Court in a district is the only Court to entertain such applications and no Court of the grade inferior to that Court. The pecuniary value may only assume significance if it falls within the periphery of the case involved in Sushanta Malik (supra).
In case of The Akola Janata Commercial Cooperative Bank Ltd. v. Raju Natthuji Badhe & Ors., an unreported judgment (Letters Patent Appeal No. 229 of 2010 decided on 23rd December, 2010) the Division Bench of the Bombay High Court also held that in view of clear unambiguous and express definition of ''Court'' under Section 2(1)(e) of the Act, it is only the District Court who is competent to execute the decree and not the Court inferior in grade.
In case of Mahesh Chandra & Anr. v. Tara Chand Modi reported in , AIR 1958 Allahabad 374, the Full Bench was confronted with the question pertaining to the interpretation of the expression ''in accordance with'' appearing in Section 47A(1) of UP Municipalities Act and held that it would mean ''in conformity'' or ''as provided for'' and therefore one has to look to the procedure and not to the form. I am afraid whether the said observations has any connection in the instant case. Section 36 of the Act by legal fiction treat the award as a deemed decree and its enforceability as such under the Code of Civil Procedure. It is, thus, the procedural aspect which gets attracted but the jurisdiction and/or competence of the Court to enforce such deemed decree is guided, regulated and controlled by the other provisions of the Act. The award can be enforced as deemed decree and provisions relating to execution so far as the procedure to be adopted by the Court concerned gets attracted but the jurisdiction and competence of the Court to entertain an execution application is derived from Section 2(1)(e) and somewhat controlled by Section 42 of the said Act.
The Three Bench decision in case of Kumbha Mawji v. Dominion of India reported in AIR 1953 SCC 313 can be noticed for the limited purposes of the legislative intent in incorporating Section 42 of the Act in the following:--
"Thus it will be seen on a comprehensive view of S. 31 that while the first subsection determines the jurisdiction of the Court in which an award can be filed, sub-ss. (2), (3) and (4) are intended to make that jurisdiction effective in three different ways, (1) by vesting in one Court the authority to deal with all questions regarding the validity, effect or existence of an award or an arbitration agreement, (2) by casting on the persons concerned the obligation to file all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings in one Court, and (3) by vesting exclusive jurisdiction in the Court in which the first application relating to the matter is filed. The context therefore, of sub-s. (4) would seem to indicate that the sub-section was not meant to be confined to applications made during the pendency of an arbitration. The necessity for clothing a single Court with effective and exclusive jurisdiction, and to bring about by the combined operation of these three provisions the avoidance of conflict and scramble is equally essential whether the question arises during the pendency of the arbitration or after the arbitration is completed or before the arbitration is commenced. There is no conceivable reason why the Legislature should have intended to confine the operation of sub-s. (4) only to applications made during the pendency of an arbitration, if as is contended, the phrase "in any reference" is to be taken as meaning "in the course of a reference."
In a recent decision rendered by Three Judges Bench in case of State of West Bengal & Ors. v. Associated Contractors reported in , 2015(1) SCC 32, the reference which fell for consideration because of the difference in opinion by the Division Bench as to which Court will have jurisdiction to entertain and decide an application for setting aside the award under Section 34 of the Act read with Section 2(1)(e) of the Act and other provisions including Section 42 thereof. The Larger Bench succinctly interpreted the definition of ''Court'' appearing in Section 2(1)(e) of the 1996 Act to that under Section 2(c) of the 1940 Act and held:--
"20. As noted above, the definition of "court" in Section 2(1)(e) is materially different from its predecessor contained in Section 2(c) of the 1940 Act. There are a variety of reasons as to why the Supreme Court cannot possibly be considered to be "court" within the meaning of Section 2(1)(e) even if it retains seisin over the arbitral proceedings. Firstly, as noted above, the definition is exhaustive and recognizes only one of two possible courts that could be "court" for the purpose of Section 2(1)(e). Secondly, under the 1940 Act, the expression "civil court" has been held to be wide enough to include an appellate court and, therefore would include the Supreme Court as was held in the two judgments aforementioned under the 1940 Act. Even though this proposition itself is open to doubt, as the Supreme Court exercising jurisdiction under Article 136 is not an ordinary appellate court, suffice it to say that even this reason does not obtain under the present definition, which speaks of either the Principal Civil Court or the High Court exercising original jurisdiction. Thirdly, if an application would have to be preferred to the Supreme Court directly, the appeal that is available so far as applications under Sections 9 and 34 are concerned, provided for under Section 37 of the Act, would not be available. Any further appeal to the Supreme Court under Article 136 would also not be available. The only other argument that could possibly be made is that all definition sections are subject to context to the contrary. The context of Section 42 does not in any manner lead to a conclusion that the word "court" in Section 42 should be construed otherwise than as defined. The context of Section 42 is merely to see that one court alone shall have jurisdiction over all applications with respect to arbitration agreements which context does not in any manner enable the Supreme Court to become a "court" within the meaning of Section 42. It has aptly been stated that the rule of forum conveniens is expressly excluded by Section 42 see JSW Steel Ltd. v. Jindal Praxair Oxygen Co. Ltd., SCC at p. 542, para 59). Section 42 is also markedly different from Section 31(4) of the 1940 Act in that the expression "has been made in a court competent to entertain it" does not find place in Section 42. This is for the reason that, under Section 2(1)(e), the competent court is fixed as the Principal Civil Court exercising original jurisdiction or a High Court exercising original civil jurisdiction, and no other court. For all these reasons, we hold that the decisions under the 1940 Act would not obtain under the 1996 Act, and the Supreme Court cannot be "court" for the purposes of Section 42."
It was further noticed in the said report the impact of Section 42 vis-�-vis the definition of the Court under Section 2(1)(e) and it is summarized:--
"25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of Original Jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part I of the Arbitration Act, 1996.
(b) The expression "with respect to an arbitration agreement" makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an award is pronounced under Part I of the 1996 Act.
(c) However, Section 42 only applies to applications made under Part I if they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.
(e) In no circumstances can the Supreme Court be "court" for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil Court having original jurisdiction in the district, as the case may be.
(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part I.
(g) If a first application is made to a court which is neither a Principal Court of Original Jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject-matter jurisdiction would be outside Section 42.
The reference is answered accordingly."
The sole object and purpose for enacting 1996 Act is to consolidate, amend and enact in tune with UNCITRAL Model and to bring uniformity both in the sense of procedure and substantive rights of the parties under the agreement. The definition of ''Court'' in Section 2(1)(e) of the Act is distinct from the definition assigned in its predecessor provision i.e. Section 2(c) of 1940 Act. It is a principal Civil Court in a district and includes the High Court in its Ordinary Original Civil Jurisdiction to be a Court for the purpose of the said Act and any Court inferior in grade including the Court to Small Causes have been purposedly excluded. The only exception to be carved out in case the City Civil Court exercises the same jurisdiction as that of a High Court in Original Jurisdiction. In this regard, it is to be borne in mind that in the event both the Courts exercising concurrent jurisdiction in relation to pecuniary value it is the High Court, which shall alone exercise such jurisdiction. Any other interpretation in this regard shall frustrate the legislative intent and shall further be opposed to the expression ''means and includes'' appearing in the said definition clause. In the event the exclusive jurisdiction is conferred on the pecuniary value to both the City Civil Court and the High Court exercising Ordinary Original Civil Jurisdiction, the application under the Act can only be made to such Courts depending upon the pecuniary value of the subject matter. Section 42 has a unique feature in the sense that if in an earlier occasion the approach is made to a Court, confirming the definition clause, all subsequent applications including an application for execution can only be made to that Court. As pointed out in Associated Contractors (supra) the invocation of Sections 8 and 11 of the Act are distinct and different from the other applications filed before the Court. such distinction is evident as an application under Section 8 of the Act is to be filed before the judicial authority and an application under Section 11 is before the Chief Justice of the High Court.
It is further pointed out in the said report that Section 42 shall not stand in the way even in a case where the applications in other provisions were filed before the Court lacking inherent jurisdiction. The aforesaid principle can be simply verified with illustrative example that if an approach is made to a Court say under Section 9 or Section 34 to a Court and an objection was raised as to the jurisdiction and was upheld whether the said Court should be approached taking aid of Section 42 of the Act. The answer is clearly "NO". Section 42 of the Act comes into play only when on an earlier occasion an application was made and decided on merit upholding the jurisdiction.
From the discussions as above it emerges:--
"(i) The execution application under Section 36 can be filed to a District Court or the High Court in exercise of ordinary Original Civil Jurisdiction if the claim of the arbitration, had it been the claim in the suit can be filed in any of such Court. It is immaterial that the arbitrator awarded the sum less than the claim;
(ii) If the Court is competent to adjudicate the dispute being the subject matter of arbitrator which could have been the subject matter of the suit awarding the interest pendente lite or future interest is not the determinant factor;
(iii) The interest pendente lite awarded by the arbitrator cannot be a factor for the purpose of the jurisdiction if the original claim falls within the jurisdiction of a District Court;
(iv) The pecuniary jurisdiction cannot be created by adding interest in an execution application (tabular statement);
(v) Section 36 is dependent upon Section 42 of the Act and if an application in an earlier occasion is filed before a Court, the further application can only be entertained by the same Court.
(vi) If the entire cause of action is beyond the territorial jurisdiction of the Court the execution application cannot be filed to a Court where the defendant voluntary resides or carries on business or the property is situated. Such execution case shall be filed before the Court where entire cause of arose and the decree can be transferred to a Court where the property is situated."
In view of the above, the following execution applications are dismissed for want of jurisdiction:
"EC No. 34 of 2015; EC No. 46 of 2015; EC No. 472 of 2015; EC No. 617 of 2015; EC No. 620 of 2015; EC No. 663 of 2015; EC No. 772 of 2015; EC No. 773 of 2015; EC No. 775 of 2015; EC No. 781 of 2015; EC No. 782 of 2015; EC No. 785 of 2015; EC No. 786 of 2015; EC No. 793 of 2015; EC No. 794 of 2015; EC No. 795 of 2015; EC No. 797 of 2015; EC No. 798 of 2015; EC No. 801 of 2015; EC No. 802 of 2015; EC No. 822 of 2015; EC No. 825 of 2015; EC No. 982 of 2015; EC No. 984 of 2015; EC No. 986 of 2015; EC No. 1003 of 2015; EC No. 1005 of 2015; EC No. 1007 of 2015; EC No. 1008 of 2015; EC No. 1009 of 2015; EC No. 1010 of 2015; EC No. 1011 of 2015; EC No. 1012 of 2015; EC No. 1013 of 2015; EC No. 1014 of 2015; EC No. 1063 of 2015; EC No. 1110 of 2015; EC No. 1112 of 2015; EC No. 1119 of 2015; EC No. 1122 of 2015; EC No. 1124 of 2015; EC No. 1125 of 2015."
Re: EC No. 161 of 2015
This execution application does not fall within the parameters as indicated above. This Court is competent to execute the award, which is a deemed decree. The judgement-debtor No. 2 is directed to file affidavit of assets in Form No. 16A of Appendix-E to the Code of Civil Procedure within four weeks from date. The judgement-debtor No. 2 shall disclose the address of the judgment debtor No. 1 to the advocate on record of the decree-holder in course of this week. The decree holder is directed to serve a copy of this execution application (EC No. 161 of 2015) upon the judgment debtor No. 1 by speed post with acknowledgement due and shall file the affidavit of service on the next date. The said judgment debtor No. 1 is also directed to file affidavit of assets in Form No. 16A of Appendix-E to the Code of Civil Procedure within three weeks from the date of receipt of the copy of the execution application. EC No. 161 of 2015 will appear after eight weeks in the supplementary list for examination of judgment debtors.
Re: EC No. 622 of 2015
It would appear from the award that the Arbitrator has held that the entire cause of action arises at Chennai and therefore this Court is not competent to execute the decree. The execution application is therefore dismissed.
Re: EC No. 627 of 2015
In view of the above, this execution application can be proceeded before this Court. The learned Advocate for the decree-holder prays for extension of time to effect service by publication. Such time is extended by 8 weeks from date.
Re: EC No. 735 of 2015
In view of the above, this Court does not find any impediment in proceeding with this execution application. It is submitted by the decree-holder that the receiver has not obtained possession of the vehicle. An accommodation is prayed for in this regard. Let this execution application appear after six weeks.
Re: EC No. 1033 of 2015
In view of the above, there is no impediment in proceeding with this execution application by this Court. The receiver files his report. Let the same be kept on record. The receiver is directed to serve a copy of the report upon the learned Advocate appearing for the decree-holder in course of this week. The execution application shall be listed after two weeks.
Re: EC No. 1098 of 2015
In view of the above, there is no impediment in proceeding with this execution application by this Court. The decree-holder prays for an accommodation. Let this execution application appear on 7th March, 2016.
Re: EC No. 1113 of 2015
In view of the above, this Court does not find any impediment in proceeding with this execution application. It is submitted by the learned Advocate for the decree-holder that the copy of the execution application sent through post could not be served upon the judgement-debtors as the postal article received back shows the postal remark ''addressee moved''. He prays for service by publication. The decree-holder is directed to effect service by publication in two leading newspapers, one in ''The Business Standard'' and the other in ''Sanmarg'', indicating that the judgement-debtor are required to file their respective affidavits of assets in Form No. 16A of Appendix-E to the Code of Civil Procedure within four weeks from the date of the publication. The publication shall be made within two weeks from date. The execution application is made returnable after six weeks for examination of the judgement-debtors.
Re: EC No. 1113 of 2015
In view of the above, this Court does not find any impediment in proceeding with this execution application. Pursuant to the earlier order, service has been effected upon the judgement-debtors. Despite service, the judgement-debtors have not filed their respective affidavits of assets within the time indicated in the order. Let warrants of arrest be issued against the judgement-debtors. The warrants of arrest shall be executed on or before 29th April, 2016. Let this order be communicated to the Deputy Sheriff immediately to act accordingly.
Re: GA No. 3819 of 2015 with EC No. 1005 of 2015
Since the main execution application (EC No. 1005 of 2015) is dismissed, this application i.e. GA No. 3819 of 2015 is accordingly dismissed.