TMI Blog2005 (12) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... rd can be enforced by this Court. 3. Under the foreign award dated 10.11.2003 the Judgment Debtor/Respondent is liable to pay to the petitioner/decree holder (1) U.S. $ 36,584.74 plus 4% interest with effect from 1.11.1999 till date of payment; and (2) 14,484.70 plus U.S. $ 21,000 plus 4% interest on both the sums from 10.11.2003 (date of award) till date of full payment. 4. The respondent has raised three preliminary objections to the maintainability of the present petition. Firstly, the respondent contends that the present petition is not maintainable inasmuch as a similar petition being Ex. No. 19/2004 is pending before the Court of the learned Additional District Judge, Delhi. Secondly, this Court does not have the jurisdiction to entertain the present petition inasmuch as the award amount is less than ₹ 20,00,000/. Thirdly, the respondent/judgment debtor has already filed objections to the said Award in the District Court at Tiruchirapalli. Therefore, in view of Section 42 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'said Act'), this Court would not have jurisdiction to entertain the present petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, this Court has no power to transfer the execution proceedings before another court in which objections are pending adjudication as the other court falls in the territory of State of Tamil Nadu. Since the objections are stated to have been filed prior to filing of the execution thus as per provisions of the Arbitration Act the objections filed against the award are to be first disposed of. Therefore the present execution is adjourned sine-die till the objections filed by the judgment debtor are decided. It can be revived on the application moved by either of the parties to the execution. In view of the above observations, the application is disposed of. From the aforesaid narration of facts, it becomes clear that the respondent had taken the objection with regard to the applicability of Section 42 in E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitration agreement and the arbitral proceedings would have to be made in that Court and in no other Court. The application which has supposedly been filed by the defendant/judgment debtor in the District Court at Tiruchirapalli has been filed under Section 34 of the said Act for setting aside the foreign award. The question that arises is whether a foreign award can at all be challenged under Section 34 of the said Act. It is clear that part II is different from part Part I of the Act. Part I relates to arbitration in general and to domestic awards. Part II pertains to 'enforcement of certain foreign awards'. Chapter I thereof pertains to the New York Convention Awards and Chapter II pertains to the Geneva Convention Awards. In this case we are concerned with Chapter I of Part II of the said Act. Clearly, Section 42 falls in Part I and so does Section 34. But in the case of a foreign award as defined in Section 44 of the said Act, there is no provision for moving an application for setting aside a foreign award. On the contrary, Section 48provides for conditions for enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;enforcement of certain foreign awards'. Section 36 falling in Chapter VIII of part I deals with enforcement and prescribes that where the time for making the application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforceable under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court. It, therefore, becomes clear that prior to enforcement of an arbitral award under Part I, it has to be seen as to whether any application under Section 34 has been made or not. If it has not been so made during the period prescribed then the award becomes enforceable as a decree of the Court. If an application has been made and it has been rejected then, also, the award becomes enforceable as if it were a decree of the Court. 7. Insofar as a foreign award is concerned, Section 49 deals with the enforcement of such awards. It provides that where the court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that court. It is relevant to note that while in Section 36, which deals with enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the filing of a Section 34 application by the respondent at Tirichirapalli would be of no consequence. And, for this reason also, the respondent cannot set up the bar of Section 42 as an impediment to this petition. Does this Court has the pecuniary jurisdiction? It was argued by the petitioner/decree holder that this Court had pecuniary jurisdiction inasmuch as the award amount was in excess of ₹ 20,00,000/-. What is interesting to note is that this very petitioner/decree holder did not object to the Execution Petition when the matter was before the learned Additional District Judge on the ground that that Court did not have pecuniary jurisdiction. On the contrary, the petitioner argued that the Additional District Judge had the jurisdiction as the award amount was less than ₹ 20,00,000/-. In fact, in paragraph 8 of the reply by the petitioner to the Respondent's Section 42 application before the Additional District Judge, the petitioner averred as under: That para 8 of the application is wrong and denied. It is wrong and denied that even otherwise this Hon'ble Court does not have the jurisdiction to entertain the present Execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction has not been issued and sent by one transferee court to the original executing court, a fresh application for execution seeking its transfer to another court would not lie. Repelling these objections, the Court held that no provision of Civil Procedure Code had been brought to its notice which would expressly prohibit simultaneous execution of a decree before two Courts. With reference to Section 39 of the CPC it was observed that the said provision is permissive in nature inasmuch as it provided for execution of a decree either by the Court which passed it or by the Court to which it is sent for execution. The Court held that the law does not prevent simultaneous execution of a decree in more courts than one, although the Court transferring the decree may in its discretion refuse such transfers as it would enable the decree holder to maintain concurrent executions before more courts than one. Ultimately, it concluded that simultaneous transfer of a decree for execution to two courts and 'simultaneous execution proceedings are neither illegal nor without jurisdiction.' Reference was also made to the Supreme Court Judgment in Prem Lata Agarwal v. Lakshman Prasad Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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