9911796707
TMI Blog2018 (9) TMI 2128X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, sought arbitration for resolution of such disputes. In such proceedings, the Corporation also raised a counter claim. The total value of the contractor's claim and the counter claim of the Corporation exceeded Rs. 1 Crore. On 15th November 2010, the Arbitrator passed an award in favour of the contractor. In such award, the learned Arbitrator provided as under : "For the reasons aforesaid, the claim of the claimant is partly allowed. [1] The claimant is held entitled to an amount of Rs. 4,67,000/= [Rupees Four Lacs, Sixty Seven Thousand only] per month towards operation and maintenance charges for Gajrawadi Sewage Treatment Plant from 26 October 2004 to 24 October 2007. It is, however, clarified that the respondent-Corporation would deduct the amount which has already been paid to the claimant towards ad hoc charges. [2] The claimant is also entitled to refund of Security Deposit of Rs. 63,000/=. [3] The claimant is held entitled to interest at the rate of 9 per cent per annum on the outstanding amount of operation and maintenance charges as also on Security Deposit with effect from 01 April 2008 till the date of payment of amount by the Corporation. [4] The cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter claim before the Arbitrator was over Rs. 1 Crore. The Commercial Court, therefore, was the correct court having jurisdiction to entertain the application for execution. The learned Judge was doubtful whether the provisions of Order VII Rule 11 CPC would apply to an execution petition. Be that as it may, on merits, the application was rejected. Having heard learned advocate for the petitioner and having perused the documents and statutory provisions applicable, we find no force in the stand of the Corporation. As is well known, once an award is passed by the Arbitral Tribunal, the same can be challenged in terms of Section 34 of the Arbitration Act. Subsection [1] thereof provides for recourse to a Court against an arbitral award that may be made only by an application for setting aside such award in accordance with subsection [2] and subsection [3]. If such an application for setting aside arbitral award is not filed, or if filed and the same is not entertained, the award could be enforced in terms of Section 36 of the Arbitration Act. Section 36 provides that where the time for making an application to set aside the arbitral award under Section 34 has expired, then subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be notified by the Central Government. Section 12 of the Act of 2015 refers to, "determination of specified value". Subsection [1] thereof provides inter alia that the specified value of the subject-matter of the commercial dispute in a suit, appeal or application shall be determined, as per clause [a] where the relief sought in a suit or application is for recovery of money, the money sought to be recovered in the suit or application inclusive of interest; if any, computed upto the date of filing the suit or application, as the case may be, shall be taken into account for determining such Specified Value. Subsection [2] of Section 12 further provides that aggregate value of the claim and counter claim; if any, as set out in the statement of claim and the counterclaim; if any, in an arbitration of a commercial dispute shall be the basis of determining whether such arbitration is subject to the jurisdiction of a Commercial Division, Commercial Appellate Division or Commercial Court; as the case may be. In terms of these provisions and in particular subsection [2] of Section 12 of the Act of 2015, for deciding the specified value of the subject matter of a commercial dispute, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting aside the arbitral award was transferred to the Commercial Court, it was the Commercial Court which was competent to enforce the arbitral award; as if it were a decree of that Court. We, therefore, find no force in the contentions of the Corporation. We may refer to the decision of Division Bench of this Court in case of M/s. OCI Corporation vs. Kandla Export Corporation & Ors., reported in 2017 [1] GLH 383 in which the question as to which Court would be competent to entertain execution petition to enforce award from an international commercial arbitration came up for consideration before the Court. The Court, considering the provisions of the Arbitration Act; as amended by the Arbitration Act, 2015 and the provisions of the Act of 2015 and in particular Section 15 thereof, concluded as under : "11.00. The sum and substance of the above discussion would be, (1) Where the subject matter of an arbitration is a commercial dispute of a specified value and if such arbitration is international commercial arbitration, all the applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 shall be heard, decided and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. We note that SLP against such judgment was dismissed by the Supreme Court on 3rd March 2017. We may also take note of the judgment of the Supreme Court in case of Kandla Export Corporation vs. M/s. OCI Corporation, SCALE 2018 [2] 368 in which the question considered by the Court was whether an appeal not maintainable under Section 50 of the Arbitration Act is nonetheless maintainable under Section 13 [1] of the Act of 2015. This proceeding was a sequel to the earlier dispute of execution of an international arbitration award in which; as noted above, the Division Bench held that the execution petition would lie before the Commercial Division of the High Court. In such proceeding, objections were filed by the judgment-debtor in the High Court. The High Court, dismissed the objections and allowed the execution petition. Against such order of the High Court, an appeal was filed under the Act of 2015 before the Division Bench of the High Court which was dismissed by the High Court holding that the Act of 2015 did not provide any additional right to appeal which was not otherwise available to the appellants under the provisions of the Act. Against such judgment of the High Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
