[Cites 11, Cited by 0]
Bombay High Court
Council Of Scientific And Industrial ... vs Divinet Access Technologies Ltd. on 22 December, 2025
2025:BHC-AS:56952
1-WP-5643-2022.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5643 OF 2022
Council of Scientific and ... Petitioner
Industrial Research
Vs.
Divinet Access Technologies Ltd. ... Respondent
Mr. K. P. Anil Kumar a/w. Ms. Priyanka Kumar for the
Petitioner.
Mr. Nitin Padmakar Deshpande a/w. Ms. Rachana Harpale
and Mr. Santosh Kurade for the Respondent.
CORAM : GAURI GODSE, J.
DATE : 22nd DECEMBER 2025
ORDER :
1. By consent, this petition is taken up for final disposal.
2. This petition is filed by the original claimant in an
arbitration proceeding to challenge the order passed by the
civil court, returning the execution petition for presentation
before the proper court at New Delhi.
3. Learned counsel for the petitioner submits that the
award in the arbitration proceedings was passed in favour of
the petitioner on 31st May 2013 at New Delhi. As the
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
13:37:05
+0530
1-WP-5643-2022.docx
respondent's property is situated within the jurisdiction of the
Pune court, the execution petition to recover the amount was
filed before the Pune court. However, the executing court has
returned the execution petition on the ground of lack of
territorial jurisdiction.
4. Learned counsel for the petitioner submits that the
issue regarding the execution of the award and the
jurisdiction of the civil court is settled by the Apex Court in the
case of Sundaram Finance Limited vs Abdul Samad and
Anr1. He relies upon the legal principles settled by the Apex
Court in paragraph 19 of the judgment holding that while an
award passed by the Arbitral Tribunal is deemed to be a
decree under Section 36 of the said Act, there was no
deeming fiction anywhere to hold that the court within whose
jurisdiction the arbitral award was passed should be taken to
be the court, which passed the decree. He submits that the
Apex Court further concluded that an award may be enforced
by execution anywhere in the country where such a decree
can be executed, and there is no requirement to obtain a
transfer of the decree from the court that would have
jurisdiction over the arbitral proceedings.
1 (2018) 3 SCC 622
1-WP-5643-2022.docx
5. Learned counsel for the petitioner, therefore, submits
that even if the arbitral award was passed by the Arbitral
Tribunal that conducted the proceedings in Delhi, the award
can be executed by the civil court at Pune, within whose
jurisdiction the property of the respondent is situated. He
further submits that the legal principles settled by the Apex
Court were not brought to the notice of the learned executing
court. The executing court has relied on the decision of this
Court in L & T Finance Ltd. v. Kajal Kumar Das and Anr 2. In
the said decision, it was held that as the application for
interim relief under Section 9 of the Arbitration Act was filed
in another court, all other proceedings must follow there.
Hence, the decree/award was transferred to the competent
court in Kolkata. Learned counsel for the petitioner, however,
submits that in view of the well-settled legal principles by the
Apex Court, the impugned order would warrant interference
by this Court.
6. Learned counsel for the respondent submits that the
objection to the territorial jurisdiction was raised in view of
Section 42 of the Arbitration Act and the decision of this
Court in the case of L & T Finance Ltd. He, therefore,
2 (2014) SCC OnLine Bom 1797
1-WP-5643-2022.docx
submits that based on the decisions relied upon by the
parties, the executing court has correctly returned the
execution petition for presenting it before the appropriate
court at Delhi.
7. I have perused the papers of the petition. The initial
facts, as pointed out by the learned counsel for the petitioner,
are not disputed. The executing court has refused to proceed
with execution solely on the ground of territorial jurisdiction,
holding that the award was made outside the court's
territorial limits. There is no dispute that the award is sought
to be executed, as the respondent's properties are situated
within the jurisdiction of the civil court at Pune.
8. By the award under execution, the respondent is
directed to pay an amount of Rs.1877.50 lakhs. The copy of
the execution application annexed to the petition shows that
the execution is filed on the ground that the respondent's
properties are situated within the jurisdiction of the civil court
at Pune.
9. The Hon'ble Apex Court in Sundaram Finance Limited
(supra.) held that an award under the Arbitration Act is
deemed to be a decree as per Section 36 of the Arbitration
1-WP-5643-2022.docx
Act. The Apex Court, in paragraph 14 of the judgment, held
that the provisions of Section 36 of the Arbitration Act show
that an award is to be enforced in accordance with the
provisions of the Code of Civil Procedure, in the same
manner as if it were a decree of the court. It is thus held that
the enforcement mechanism is akin to the enforcement of a
decree, but the award itself is not a decree of the civil court,
as the civil court passes no decree whatsoever. However, it
is the Arbitral Tribunal that renders an award, and the tribunal
does not have the power of execution. Hence, for the
purpose 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. With reference to the issue of jurisdiction, the
Apex Court referred to the decision of the Madras High Court
in Kotak Mahindra Bank Ltd. vs. Sivakama Sundari 3 and
held in paragraph 19 as under
"19. The Madras High Court in Kotak Mahindra
Bank Ltd. Vs. Sivakama Sundari referred to
Section 46 of the said Code, which spoke of
precepts but stopped at that. In the context of
the Code, thus, the view adopted is that the
decree of a civil court is liable to be executed
3 2011 SCC OnLine Mad 1290
1-WP-5643-2022.docx
primarily by the court, which passes the decree
where an execution application has to be filed
at the first instance. An award under Section 36
of the said Act, is equated to a decree of the
court for the purposes of execution and only for
that purpose. Thus, it was rightly observed that
while an award passed by the Arbitral Tribunal
is deemed to be a decree under Section 36 of
the said Act, there was no deeming fiction
anywhere to hold that the court within whose
jurisdiction the arbitral award was passed
should be taken to be the court, which passed
the decree. The said Act actually transcends all
territorial barriers."
10. Thus, considering the issue of jurisdiction and the
enforcement of an award as contemplated under Section 36
of the Arbitration Act, the Apex Court concluded 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. Hence, in view of the legal principles
settled by the Apex Court, the view taken by the executing
court, by relying upon the decisions of the Delhi High Court
and the decision of this Court, would not be sustainable.
1-WP-5643-2022.docx
11. Therefore, in light of the legal principles settled by the
Apex Court in Sundaram Finance Limited (supra.), the
impugned order warrants interference in the exercise of
powers under Article 227 of the Constitution of India.
12. In any case, the executing court could not have
returned the execution petition for presentation to the proper
court in view of Section 39 of the Code of Civil Procedure,
1908 ("CPC"). If the executing court found that the decree is
necessary to be executed by another court of competent
jurisdiction, the executing court can transfer the decree in
view of Section 39 of the CPC. Hence, there was no reason
for the executing court to return the execution petition for
presentation before the court in New Delhi.
13. In view of the settled principles by the Apex Court in the
case of Sundram Finance Limited the execution petition filed
before the civil court at Pune would be maintainable before
that court as the civil court at Pune will have jurisdiction to
proceed with the execution. Hence, this is a fit case to
exercise power under Article 227 of the Constitution of India
to interfere with the impugned order.
14. For the reasons recorded above, the writ petition is
1-WP-5643-2022.docx
allowed by passing the following order :
(i) The impugned order dated 24 th February 2021
passed by the learned District Judge I, Pune, in
Darkhast No. 1556 of 2014 is quashed and set aside.
(ii) Darkhast No. 1556 of 2014 is restored to the file
of the District Judge I, Pune, for deciding it on merits.
(iii) The Arbitration Award under execution is dated
31st May 2013. Hence, the executing court shall
endeavour to decide the execution petition as early as
possible.
(iv) Parties shall co-operate for early disposal of the
execution petition and shall not seek any unnecessary
adjournment.
[GAURI GODSE, J.]
