Execution of Final Arbitral Award / Deemed Decree

The enforcement of 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.

In Kotak Mahindra Bank Ltd., (2011) 4 LW 745 (Mad HC) it was, thus, opined that:

“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.

Therefore, it is clear that no Court to which an application for execution of an Award is presented, can insist on the filing of the execution petition first before some other Court and to have it transmitted to it later.”

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 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. The said Act actually transcends all territorial barriers.

Section 42[1] applies with respect to an application being filed in Court under Part I. The jurisdiction is over the Arbitral Proceedings. The subsequent application arising from that agreement and the Arbitral Proceedings are to be made in that Court alone. However, what has been lost sight of is Section 32 of the said Act. The aforesaid provision provides for Arbitral Proceedings to be terminated by the Final Arbitral Award. Thus, when an Award is already made, of which execution is sought, the Arbitral Proceedings already stand terminated on the making of the Final Award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of Arbitral Proceedings, would have any relevance.”

Hon’ble Justice Sanjay Kishan Kaul, Sundaram Finance v. Abdul Samad, [Civil Appeal No. 1650 of 2018].

 

[1] “42. Jurisdiction. – 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.”

 

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