Under Section 36 of the said Act, the award is enforceable as if it were a decree of the court. The manner of enforcement is provided in the Code of Civil Procedure, 1908. The legal fiction that is created is for treating an arbitral award for all intents and purposes as a decree of the court.
11. Order 21 Rule 10 of the Code of Civil Procedure, 1908 provides that where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or if the decree has been sent to another court, then to such court for execution. In the present case, two of the parties against whom the award was given challenged the award under Section 34 of the said Act in this court. Respondent also participated in those proceedings and never objected to the jurisdiction of this court. As noted earlier, the validity of the award was decided all the way up to the Division Bench of this court. Thereupon the arbitral award become enforceable as if it were a decree of the court under Section 36. The expression "Court" cannot for the purpose of Section 36 be read at variance with the meaning of the expression under Section 34. Section 42 of the said Act provides, 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 effect of Section 42 is that where an application has been made under Part I in a court with respect to an arbitration agreement, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings. The legislature has affirmatively stated that such a court alone would have jurisdiction and has placed the matter beyond doubt by stipulating that no other court would have jurisdiction. I find support from the judgment of this court in the matter of Eskay Engineers vs. Bharat Sanchar Nigam Limited MANU/MH/0771/2009 : 2009 (4) Arb. LR 369 (Bombay) relied upon by Mr. Sen.
12. In this case, as stated above, when the arbitration proceedings commenced, respondent was within the jurisdiction of this court. The arbitration proceedings were held within the jurisdiction of this court. The award was published within the jurisdiction of this court. The challenge to the award by some of the parties was made in this court, in which respondents participated and never raised objection of jurisdiction. Therefore, as provided in Section 42 of the said Act, this is the court which alone will have jurisdiction over these proceedings. Just because respondent has shifted office outside the jurisdiction of this court after the arbitral award was given and before lodging of this execution application does not mean this court will not have jurisdiction.
IN THE HIGH COURT OF BOMBAY
Chamber Summons No. 1132 of 2014 in Execution Application No. 156 of 2015
Decided On: 07.06.2017
Shree Harivansh Securities Pvt. Ltd. Vs. Nikko Stock Broker Pvt. Ltd. and Ors.
K.R. Shriram, J.
Citation: 2018(1) MHLJ374