Ashish Kumar Sadh vs Smt. Putul Chaubey And 2 Others
2015 Latest Caselaw 5554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. - 58
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7459 of 2015
 

 
Petitioner :- Ashish Kumar Sadh
 
Respondent :- Smt. Putul Chaubey And 2 Others
 
Counsel for Petitioner :- Kapil Tyagi,Anoop Trivedi
 

 
Hon'ble Suneet Kumar,J.

The respondent-claimant filed a claim petition before the sole Arbitrator at Noida, Gautam Budh Nagar, inter alia, claiming (1) a direction to the applicant to vacate the licensed premises and to hand over the possession of the premises to the claimant, (2) to direct the applicant to pay the respondent-claimant four times license fee till the applicant continues to occupy the premises un-authorizedly.

The respondent claims to be the owner of the disputed premises being Unit No. 131-A situated at first floor of commercial Complex, Greater Indian complex Plot No. A-2 Sector 36-A, Noida, District Gautam Budh Nagar.

The applicant appeared and contested the claim petition by filing written statement, inter alia, alleging that there is no signature of the petitioner on the alleged deed, further, the respondent has not signed the said deed. The Arbitrator rendered an award on 9 January 2015 directing the applicant to pay a sum of Rs. 1,12,56,220/ to the respondent-claimant. Aggrieved, applicant preferred an appeal under Section 37 read with Section 34 of Arbitration and Conciliation Act 19961 before this court being F.A.F.O No. 315 of 2015, said appeal is pending and no injunction has been granted.

Upon expiry of statutory period as contemplated under Section 36 of Act 1996, the respondent instituted an execution case being Case No. 278 of 2015 before the District Judge, Gautam Budh Nagar. The applicant on receiving notice of the aforesaid execution case filed objections (11-Ga) both on merit and maintainability of the proceedings before the District Judge. The applicant, thereafter, filed an application (13-Ga) under Order 21 Rule 26 Code of Civil Procedure2 praying that the execution proceedings be kept in abeyance pending decision of the appeal.

The learned District Judge rejected the objections vide order dated 8 December 2015, thereby directing as to why the proceedings for attachment may not be initiated against the applicant.

The applicant is assailing the order dated 8 December 2015, passed by the District Judge in a petition under Article 227 of the Constitution of India.

The submission of the learned counsel for the applicant is that since the award and decree is under challenge in an appeal, therefore, it should not be executed, further, the civil court erred in holding that the appeal filed by the applicant against the award before this Court would not be maintainable, therefore, execution proceedings cannot be stayed by approaching the wrong forum.

The submission of the learned counsel for the applicant falls for consideration.

The only question for determination is as to whether the appeal filed by the applicant against the award before this Court would be an application for setting aside the arbitral award before the competent court. Chapter VII of the Act provides recourse against an arbitral award, sub-clause 1 of Section 34 contemplates that the aggrieved party may take recourse to the "court" against arbitral award by making an application for setting aside of the award in accordance with sub-section (2) and (3).

Section 36 contained in Chapter VIII provides for enforcement of award where the time provided for making an application to set aside the arbitral award under Section 34 has expired or such application having been made, has been refused, the award shall be enforced under CPC in the same manner as if it were a decree of the Court. Section 37 provides for appeal, inter alia, from an order to set aside or refuse to set aside an arbitral award under Section 34. The court competent to hear the appeals would be the court authorized by law to hear the appeals from original decrees of the court passing the order.

The forum of the appellate court necessarily must be determined in reference to the definition of 'court' in section 2(1)(e) of the Act 1996. If the High Court does not exercise original civil jurisdiction, it would not be a "court" within the meaning of said provisions.( Vide Pandey & Co. Builders Pvt. Ltd Vs. State of Bihar, AIR 2007 SC 465).

Section 2(1)(e) would define the 'court' to mean principal civil court of original jurisdiction in a district and includes 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 9 also confers powers upon the 'court' to grant interim measure, section 14 again refers the 'court'. By the expression court used in various provisions of the Act is meant that District Court i.e. principal civil court of original jurisdiction in a district, which would have jurisdiction to decide, if a suit had been brought in regard to subject matter of reference. High Court of Allahabad, does not exercise original civil jurisdiction, therefore, is not court as defined under Section 2(e), hence, application under Section 34 to set aside an award is not entertainable in the High Court of Allahabad. (Vide Deepak Mitra Vs. District Judge, Allahabad; AIR 2000 (Alld) 9).

The application under Section 34 is not to be made to the High Court on the ground that the High Court had appointed the Arbitrator upon application under Section 11 made to it or to the Supreme Court because it had appointed the Arbitrator on the matter reaching that court. (Ref. Bharat Coking Coal Ltd Vs. Annapurna Construction; AIR 2008 SC 2928, Gharwal Mandal Vikas Nigam Vs. M/s Krishna Travel Agency; 2008(6) SCC 741.

Section 35 provides for finality of an award and section 36 for enforcement of award under following situations:

(1) 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 CPC in the same manner as if it were a decree of the Court.

There is, therefore, an automatic stay of the execution of the award once an application under Section 34 to set aside the award is filed before the competent civil court within the time prescribed, the only qualification prescribed for such application is that it should have been filed within time, no other condition can be imposed on such application. Unlike provision of stay under Order 41 Rule 5 CPC, no proceeding for stay has been enacted in section 37 of Act 1996, the purpose of the Act is to avoid procedural delay.

The court which can exercise power under Section 34 is proper court for execution of an arbitral award. This is also implied from the wording of Section 36 itself, Section 37 prescribes forum of appeal, an appeal under this section will lie to the same court in which an appeal lies from the original decree, this section not only confers right of appeal but also fixes the forum to lay down test to the court authorized by law to hear the appeals from the original decrees of the Court passing the order.

Where application under Section 34 made before the learned Single Judge of Jharkhand High Court was dismissed by holding that he was not a 'court' within the meaning of Section 2(1)(e) of the Act, the application, therefore, was not maintainable before him. The Supreme Court held that the order of learned Single Judge was not appealable under Section 37(1)(b), therefore, petition under Section 34 was dismissed on the ground of maintainability and not on the ground of refusing to set aside the award. The Supreme Court remitted the petition under Section 34 to Civil Court competent to hear and decide it as envisaged under Section 2 (1)(e) of the Act. (Vide- Hindustan Copper Ltd Vs. Nicco Corporation Ltd; 2009(6) SCC 69).

As already stated above, this Court not being the principal civil court, therefore, would not entertain an application under Section 34 read with Section 37 of the Act 1996. The principal civil court being court of District Judge, application/appeal, therefore, preferred directly before the appellate forum of this Court under Section 37 would be no application in the eye of law as contemplated under Section 34.

For the reasons and law stated herein above, I do not find any illegality, infirmity or jurisdictional error in the impugned order.

The petition is accordingly dismissed.

No order as to costs.

Date: 18.12.2015

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