Research › Search › Judgment

Orissa High Court · body

2023 DAILYLAW 892 (ORI)

Magma Fincorp Ltd. v. Santosh Kumar Srichandan

2023-03-22

K R Mohapatra

body2023
ORDER : K.R. MOHAPATRA, J. 1. This matter is taken up through hybrid mode. 2. This CMP has been filed assailing the order dated 6 th January, 2015 (Annexure-3) passed by learned District Judge, Khurda at Bhubaneswar whereby it refused to admit Execution Petition No.1076 of 2014 filed by the Petitioner to execute an arbitral award dated 28 th November, 2013 passed by learned Arbitrator at Kolkata. 3. Mr. Mishra, learned counsel for the Petitioner submits that the arbitral award in question was passed on 28 th November, 2013 by learned Arbitrator, Kolkata. Since the properties to satisfy the decree situates within the local limits of learned District Judge, Khurda at Bhubaneswar and the parties to the award also ordinarily reside and carry on their business within the local limits of the principal Civil Court of Khurda, namely, the District Judge, Khurda at Bhubaneswar, an application for execution of the award was filed before that Court, which was registered as Execution Petition No.1076 of 2014. While considering the maintainability of the execution proceeding before the said Court, learned District Judge held that since the arbitral award was passed by learned Arbitrator, Kolkata, the execution was to be filed before the principal Civil Court at Kolkata. He, therefore, directed the Petitioner to file the execution petition before the Principal City Civil Court, Kolkata with a prayer to transfer the award to this Court for execution, if the properties are within the jurisdiction of this Court to satisfy the decree. 4. Mr. Mishra, learned counsel for the Petitioner relied upon the decision in the case of Sundaram Finance Ltd. Represented by J. Thilak Senior Manager (legal) –v- Abdul Samad and another, reported in (2018) 3 SCC 622 , wherein the Hon’ble Supreme has held as under: “ 18. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. [Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009) 159 DLT 579 ] records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the court, while in the case of an award no court has passed the decree. 19 . 19 . The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari [Kotak Mahindra Bank Ltd. v. Sivakama Sundari, 2011 SCC OnLine Mad 1290 : (2011) 4 LW 745 ] referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the court for the purposes of execution and only for that purpose. Thus, 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 was 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 .” 5. It is his submission that after amendment of Section 39 of the Civil Procedure Code, an application for execution of the award of the Arbitrator at Kolkata is also maintainable in the Court of the Principal Civil Court, Khurda at Bhubaneswar, as the parties are ordinarily residing and the properties to satisfy the decree (award) situate within the local limit of the said Court. This aspect was not considered by learned District Judge while adjudicating the matter. Hence, he prays for setting aside the impugned order under Annexure-3 and to remit the matter to learned District Judge, Khurda at Bhubaneswar to entertain the Execution Petition No.1076 of 2014 on merit. 6. Although the Opposite Party is represented through learned counsel, but none appears on his behalf at the time of call. 7. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the case law in Sundaram Finance Ltd. (supra), this Court feels that the matter requires fresh consideration by learned District Judge, Khurda at Bhubaneswar with regard to maintainable of the Execution Petition No.1076 of 2014 before the said Court. 8. 7. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the case law in Sundaram Finance Ltd. (supra), this Court feels that the matter requires fresh consideration by learned District Judge, Khurda at Bhubaneswar with regard to maintainable of the Execution Petition No.1076 of 2014 before the said Court. 8. Accordingly, the impugned order under Annexure-3 is set aside and the matter is remitted to learned District Judge, Khurda at Bhubaneswar to examine the maintainability of the Execution Petition No.1076 of 2014 afresh keeping in mind the case law in Sundaram Finance Ltd. (supra) giving opportunity of hearing to the parties concerned. 9. Learned District Judge, Khurda at Bhubaneswar shall act upon production of certified copy of this order. 10. Accordingly, the CMP is disposed of. Urgent certified copy of this order be granted on proper application.