Execution Case No. 284 of 2021 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.19 of 2023 An application under Articles 226 and 227 of the Constitution of India. Ajit Kumar Agarwalla @ Aj Agrawal . Petitioner Mr. A.P.Bose, Advocate -versus- Shinghal Industries Pvt. Ltd. Agriculture . Opp. Party CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 23.11.2023 | Date of Judgment : 23.11.2023 _____________________________________________________ A.K. Mohapatra, J. : 1. Heard learned counsel for the petitioner, as well as the learned counsel appearing for the Opposite Parties. The present Civil Revision Petition has been filed by the petitioner by invoking the jurisdiction of this Court under Section 115 of Civil Procedure Code by assailing the order dated 31.03.2003, passed by the Senior Civil Judge, Commercial Court, Bhubaneswar, in Execution Case No.284 of 2021. // 2 // 2.
Legal Reasoning
Learned counsel for the petitioner at the outset contended that the Opposite Party (i.e. the DHR) had initially filed Execution Petition No. 284 of 2021 in the Court of District Judge, Khurda, Bhubaneswar, under Section 36 of the Arbitration and Conciliation Act, 1996 read with Order 21, Rule 11 and 30 of the CPC for the execution of the decree/award dated 10.12.2020 passed by the Sole Arbitrator. The aforesaid execution petition was subsequently transferred to the Court of learned Civil Judge, Senior Division, Commercial Court, Bhubaneswar. The Petitioner (i.e. the JDR) appeared before the designated Court and filed his objection under Section 47 of the CPC raising a ground that, since there is no arbitration Clause in the agreement, the very proceeding under said section 47 is not maintainable. 3. The DHR/Opposite Party filed a reply, to the aforesaid objection by the JDR/Petitioner under Section 47, by taking a plea that the entire award has been passed basing upon the terms & condition agreed upon the parties. The learned Court below, upon hearing the learned counsels for the both sides, rejected the objection under Section 47 filed by the JDR vide its order dated 31.03.2023, which is the subject matter of the dispute in the present revision petition. // 3 // 4. In the revision petition, the petitioner/JDR has taken the ground that there is no Arbitration Clause in the Contract between parties. However, an Arbitrator was appointed and he has delivered an award. It has also been contended by the petitioner that, such award was sought to be executed by the decree holder by filing an application under Section 37 of the Arbitration and Conciliation Act, 1996. However, since there is no arbitration clause in the agreement between the parties, the very foundation of the award is fallacious, and the outcome of such proceeding is therefore void. Accordingly, the JDR/petitioner has raised a question regarding the maintainability of the proceeding for execution of the award under Section 36 of the aforesaid Arbitration and Conciliation Act, 1996. 5. The Learned counsel for the petitioner further contended that Section 36 provides that after expiry of a period of hundred and twenty days or after disposal of the petition under section 34 Arbitration and Conciliation Act, 1996, the award becomes a decree by legal fiction and the same is enforceable under Section 36 of Arbitration and Conciliation Act, 1996 read with the provisions of Order 21 of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court. In such view of the matter, the learned counsel for the petitioner submitted that, once the award is to be executed in a manner as if it were a decree under Order 21 of // 4 // the CPC, the petitioner has every right to file an objection under Section 47 of the CPC and the same is very much maintainable. In view of the above contention, the learned counsel for the petitioner submitted that the learned trial Court below has committed an illegality by passing the impugned rejection order, thereby rejecting the objection of the petitioner under Section 47 of the CPC on the ground that same is not maintainable. Per contra, the learned counsel appearing for the Opposite Parties submitted before this Court that, the validity of an arbitration clause or the award can only be questioned by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996, in the manner as has been provided therein for the setting aside of an award. He further contended that the A&C Act, 1996 being a special statute, provides for a distinct procedure to be followed while dealing with validity of an arbitration clause or an award passed by the arbitrator under the A&C Act 1996. He further contended that, the provisions of the CPC have limited application on the execution proceedings under the A&C Act, 1996, furthermore, the provision contained in Section 47 of the CPC is not applicable to the said execution proceedings under Section 36 of the A&C Act, 1996, particularly regarding the objection of the petitioner as to the validity of arbitration clause of the award in the execution proceeding under Section 36 of the Act. // 5 // 6. In support of his contention, the learned counsel for the Opposite Party referred to the judgment of this Court rendered by a coordinate Bench in Birat Chandra Dagara v. Orissa Manganese & Minerals Ltd. reported in 2020 SCC OnLine Ori 5. In Birat Chandra Dagara’s case supra an identical issue was under consideration of a coordinate bench of this Court. The Learned Coordinate bench by referring to a catena of judgments rendered by different High Courts of the country has arrived at a categorical conclusion that, the provision contained in Section 47 of the CPC regarding filing of an objection to the execution proceeding could not be applicable to the proceeding under Section 36 of the Arbitration and Conciliation Act, 1996. In the course of his argument, the learned counsel for the Opposite Party, specifically referring to Para-9 of the judgment in Birat Chandra Dagara’s case, submitted before this Court that, an application under Section 47 of the CPC is covered by the provisions under Section 34 of the Arbitration and Conciliation Act, 1996, and the same is not maintainable independently in an application under section 36 of the A&C Act, 1996. Finally, the learned Coordinate Bench in Para-11 of the judgment has come to a specific conclusion that there is no scope for entertaining an objection under Section 47 in an execution proceeding under Section 36 of the A&C Act, 1996 in the absence // 6 // of a challenge to the said award under Section 34 of the A&C Act, 1996. In view of the aforesaid declaration of law by a Coordinate bench of this Court, this Court has no further jurisdiction to determine the proceeding once again. Moreover, the decision rendered by the coordinate bench is binding on this Court by applying the law of precedence. In view of the aforesaid analysis of the factual, as well as the legal position, this Court is of the considered view that the learned court below has not committed any illegality in passing the impugned order dated 31.03.2023, passed in the Execution Case No. 284 of 2021, and hence the same does not call for any interference by this Court in the exercise of the jurisdiction under Section 115 of the CPC. Accordingly, the revision application filed by the petitioner is dismissed. However there shall
Decision
be no order as to costs. Orissa High Court, Cuttack The 23rd of November, 2023/ Rubi. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 30-Nov-2023 10:56:39