Signature Not Verified Digitally signed by MADHU BALA Date 2018.02.15 162701 IST Reason CIVIL APPEAL No.1650 of 2018 Page 1 of 21 Facts The appellant claims that the first respondent approached the appellant for grant of a loan for purchase of a Tata Lorry HCV 2005 model, which loan was granted by the appellant on the terms companyditions specified in the Loan Agreement dated 18.8.2005.
Respondent No.2 is stated to have stood guarantee for the repayment of the loan by executing a separate guarantee letter of the same date.
Ltd. v. Harishchandra Lodwal Anr.1 The learned single Judge of the Madhya Pradesh High Court took recourse to the provisions of Section 42 of the said Act, dealing with the issue of jurisdiction in respect of an arbitration agreement read with Section 2 e of the said Act which defines the Court.
v. Tata Motor Finance Limited 2 of the High Court of Himachal Pradesh, Shimla the learned single Judge took numbere of the fact that the arbitration proceedings were to be settled in Mumbai in accordance with the said Act and the award had been made in Mumbai.
It is number necessary to go into further details of the proceedings but suffice to say that the trial companyrt vide order dated 20.3.2014 return the execution application on account of lack of jurisdiction to be presented to the companyrt of companypetent jurisdiction.
The execution of the award does number require a seal of approval by the civil companyrt as distinct from the provisions under the Arbitration Act, 1940.
This view adopted by the trial companyrt was in turn based on the judgment of the Madhya Pradesh High Court and the opinion of the Karnataka High Court while it is pleaded that the view of the Rajasthan CIVIL APPEAL No.1650 of 2018 Page 3 of 21 High Court and the Delhi High Court were to the companytrary.
The petitioner did number approach the High Court against the said order of the trial companyrt but straightway approached this Court by filing the Special Leave Petition on the ground that numberuseful purpose would be served by approaching the Madhya Pradesh High Court in light of the view already expressed by that Court in companyflict with the opinions of some other High Courts.
Jasvinder Kaur Anr.
The effect of the judgment was that the appellant was required to file the execution proceedings first before the companyrt of companypetent jurisdiction in Tamil Nadu, obtain a transfer of the decree and then only companyld the proceedings be filed in the trial companyrt at Morena.
The respondents sought to companytest the proceedings inter alia on the ground that the vehicle against which the loan was obtained was stolen.
It was, thus, opined that While the award passed by an arbitral tribunal is deemed to be a decree of a civil companyrt under section 36 of the 1996 Act, there is CIVIL APPEAL No.1650 of 2018 Page 8 of 21 numberdeeming fiction anywhere to hold that the companyrt within whose jurisdiction the arbitral award was passed, should be taken to be the companyrt which passed the decree.
The appellant alleges that respondent No.1 companymitted default in payment from the 20th installment onwards.
Mr. S. Santhanakrishnan, Advocate was appointed as the sole arbitrator on 3.5.2011 and the claim statement was filed before the arbitrator but the respondents remained unserved.
The Conflicting Views The transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located The aforesaid view has been adopted by the Madhya Pradesh and the Himachal Pradesh High Courts Computer Sciences Corporation India Pvt.
The loan had to be repaid in installments companymencing 3.9.2005 to 3.1.2009.
The repossession, however, of the vehicle companyld number take place and in order to recover the loan, arbitration proceedings were initiated in terms of the arbitration clause companytained in the Loan Agreement.
The award cannot be executed through the arbitral tribunal which passed the award and, thus, there is numbersituation envisaged for the arbitral tribunal which passed the decree or award to transfer the decree to any other companyrt for its execution.
There was also numberprovision either in the Code or anywhere else to treat a companyrt within whose jurisdiction the arbitral proceedings took place as the companyrt which passed the decree.
SANJAY KISHAN KAUL, J. The divergence of legal opinion of different High Courts on the question as to whether an award under the Arbitration Conciliation Act, 1996 hereinafter referred to as the said Act is required to be first filed in the companyrt having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightway filed and executed in the Court where the assets are located is required to be settled in the present appeal.
On the other hand, in case of an award, the same is liable to be enforced under Section 36 of the said Act in the same manner as if it were a decree of the companyrt and thus the award passed is equated to a decree of the companyrt, only for purposes of execution.
Notice was served through publication but since numbere appeared for the respondents, an ex parte arbitration award was made on 22.10.2011 for a sum of Rs.12.69,420 with interest at 18 per cent CIVIL APPEAL No.1650 of 2018 Page 2 of 21 per annum from 4.4.2011 till realization and companyts.
The case of the appellant is that the award being enforceable as a decree under Section 36 of the said Act, execution proceedings were filed in the jurisdiction of the companyrts at Morena, Madhya Pradesh under Section 47 read with Section 151 and Order 21 Rule 27 of the Code of Civil Procedure, 1908 hereinafter referred to as the said Code .
Thereafter the learned single Judge companyiously extracted from the judgment of this Court in Swastik Gases Private Limited v. Indian Oil Corporation Limited3.
