Executive Engineer Provincial Division v. M/S Shanti Construction

Hon'ble Saral Srivastava,J.

Heard learned counsel for the applicant and learned counsel for the respondent/opp. party.

The present transfer application has been filed by the applicant seeking transfer of proceeding of Arbitration Execution Case No.118 of 2023 pending in the Commercial Court, Jhansi to the Commercial Court, Lucknow.

It is submitted by the learned counsel for the applicant that the arbitration proceeding took place at Lucknow and the award passed by the Arbitrator has been challenged by the applicant before the Commercial Court, Lucknow, which is pending. It is submitted that now the execution application for execution of the award has been filed before the Commercial Court, Jhansi which Court does not have territorial jurisdiction to entertain the execution application in respect of an arbitration award passed at Lucknow. Accordingly, it is contended that the execution application may be transferred from Commercial Court Jhansi to the Commercial Court, Lucknow.

Per contra, learned counsel for the respondent would contend that the execution application for executing the award can be filed anywhere, therefore, the execution application of respondents before the Commercial Court, Jhansi is maintainable and Commercial Court, Jhansi has territorial jurisdiction to hear and decide the execution case.

Be that as it may, the objection which has been raised by the applicant that the Commercial Court, Jhansi has no territorial jurisdiction to entertain the execution application inasmuch as the award has been passed by the Arbitrator at Lucknow, and the applicant has also preferred objection under Section 34 of the Arbitration and Conciliation Act, 1996 before the Commercial Court, Lucknow, therefore, the Commercial Court, Jhansi has no territorial jurisdiction to entertain the execution application, this objection can be raised by the applicant against the execution application and Executing Court is expected to decide the same, and in case, the said application is not decided by the Executing Court and it passes an order against the applicant, the applicant has further remedy to challenge the order of Executing Court in appropriate proceeding before the Higher Court.

This Court in a transfer application cannot determine whether the Commercial Court had territorial jurisdiction to entertain the execution application or not, and it is the domain of the Commercial Court to decide the question of jurisdiction. In such view of the fact, the grounds on which the transfer is sought is misconceived.