THE GAUHATI HIGH COURT v. INDRIKA LANGTHASA @ INDIRA LANGTHASA

MAHINDRA and MAHINDRA FINANCIAL SERVICES LTD. A COMPANY IN CORPORATE UNDER THE COMPANIES ACT, 1956, REGIONAL OFFICE AT KUSHAN PLAZA, 3RD FLOOR, GANESHGURI, GHY- 5, REPRESENTED BY ITS ASSOCIATE MANAGER, LEGAL SRI BHOLA NATH SARMA Advocate for the Petitioner : MR.C BARUAH Advocate for the Respondent : MR. M SARMA BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Date : 21.06.2022 ORDER Heard Mr. B. Baruah, the learned counsel for the Petitioner and Mr. M. Sarma, the learned counsel appearing on behalf of the Respondent. The challenge in the instant petition is to an order dated 06.11.2017 Page No.# 2/4 whereby the Court of the Additional District Judge No.3, Kamrup (M) at Guwahati in Money Execution Case No.105/2014, held that the Court at Guwahati has the territorial jurisdiction to entertain the execution application. The stand of the Petitioner before this Court is that, as the award was passed in Mumbai, it is only the Courts in Mumbai which shall have the jurisdiction and the decree holder in the said award is required to file an application before the Courts of Mumbai and thereafter transfer it to Guwahati. On the other hand, Mr. M. Sarma, the learned counsel for the Respondent submitted that the matter has already been settled by a judgment of the Supreme Court in the case of Sundaram Finance Ltd. Vs. Abdul Samad and Another reported in (2018) 3 SCC 622. A perusal of the said judgment would show that the question before the Supreme Court was as to whether the transfer of a decree should be first obtained before filing the execution petition before the Court where the assets are located. The Supreme Court after taking into consideration the conflicting views of the High Courts had observed that, an award under Section 36 of the Arbitration and Conciliation Act, 1996 (for short “the Act of 1996”) is deemed to be a decree of the Court for the purpose of execution and only for that purpose and as such by approving the judgment of Madras High Court in Kotak Mahindra Bank Ltd. Vs. Sivakama Sundari reported in (2011) SCC Online MAD 1290 observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the Act of 1996, there is no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be that Court which passed the decree. The Act of 1996 actually transcends all territorial barriers. On the basis of that, the Supreme Court 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. Paragraph No.19 of the 20 being relevant is quoted hereinbelow. Page No.# 3/4 “19. While the award passed by an arbitral tribunal is deemed to be a decree of a civil court under section 36 of the 1996 Act, there is 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. Therefore, the whole procedure of filing an execution petition before the court within whose jurisdiction the arbitral award was passed, as though it is the court which passed the decree, is pathetically misconceived.

20. In Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. [decided by a learned Judge of the Delhi High Court on 13.3.2009 -E.A. No. 105 of 2009 in Ex. No. 242 of 2008], an objection was raised to the territorial jurisdiction of the Delhi High Court to entertain an execution petition. The objection was on the basis that the arbitration proceedings were held and order pronounced at Calcutta and that the award was challenged successfully before a District Court in Assam. However, the High Court of Guwahati set aside the judgment of the District Court and partly upheld the award. The Supreme Court partly modified the judgment of the High Court. Therefore, it was contended by the award debtor that the Delhi High Court had no jurisdiction. It was also contended that the decree had to be transmitted. Repelling the said contention, the learned Judge of the Delhi High Court held that in the absence of applicability of the mandate of Section 38, CPC, the Court within whose jurisdiction the property of the judgment debtor is situate, would have jurisdiction to entertain the execution. For coming to the said conclusion, the learned Judge of the Delhi High Court also held that even Section 42 of the 1996 Act would not stand in the way. The Court also drew inspiration from the fact that some of the orders of the Company Law Board were also intended to be enforced through a Court, without orders for their transmission.” Taking into consideration of the above quoted paragraphs, this Court is of the view that the respondents have rightly filed the application for execution of Page No.# 4/4 the arbitral award at Guwahati; and the order dated 06.11.2017 passed by the Court of the Additional District Judge, F.T.C. No.3, Kamrup (M), Guwahati in Money Execution Case No.105/2014 calls for no interference. Consequently, the instant petition being devoid of any merits is dismissed. The interim order dated 16.12.2017 is vacated and the parties are directed to appear before the Executing Court on 20.07.2022. Taking into consideration that the said execution proceedings have been pending for the last 8 (eight) years, the said Executing Court is directed to dispose of the said execution proceedings as expeditiously as possible and preferably within 3 (three) months from the date of appearance of the parties. Comparing Assistant JUDGE