RK Textiles Mumbai Vs Sulabh Textiles Pvt Ltd
In the instant case, an execution application for enforcement of an arbitral award was filed. The issue that arose was whether the executing court could enter into an investigation of facts relating to existence of arbitration agreement.
It was held that the executing court is not expected nor warranted to enter into an investigation of the facts whether there is absence of arbitration agreement or not; and if not, whether the alleged incorporation of the term in the bills amount to a valid arbitration agreement or not, etc. These questions clearly fall out of the jurisdiction of the executing court which need not and cannot record its findings on these factual aspects.
If the executing court goes beyond its limits and takes upon itself to examine the validity of the decree or factual details, then it ceases to be an executing court and usurps the jurisdiction or assumes the role of an Appellate Court. Therefore, the plea that there was not arbitration agreement or that it was not within the ambit of Section 7 cannot be entertained in the execution proceedings.
M.Banerjee and Sons, Shillong Vs M.N. Bhagabati
The application for execution of award filed by the petitioner was dismissed by the District Judge on the ground that no decree had been filed and enclosed with the execution petition.
It was held that the District Judge had wrongly dismissed the execution petition as the decree need not be filed and enclosed with the execution application. As per section 36, an arbitral award may be enforced in the same manner as if it were a decree of the court. Hence, for the purpose of execution, an award is to be treated as a decree of the Court.
Ramaswamy Vs Principal Subordinate Judge
The petitioner had filed an execution petition with a certified copy of the award. The execution petition was returned by the court directing the petitioner to file a decree.
It was held that section 17 of the old Arbitration Act 1940 provided for a decree to be drawn by the court concerned. But section 36 of the New Act of 1996 provides that the award shall be considered as a decree and shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court. In such case, the court cannot insist for a decree to receive the execution application it its file. U/s 36, the executing court is duty bound to accept the execution petition with a certified copy of the award.
Union of India Vs Punjab Communications Ltd
In the instant case, the arbitrator gave directions that the impugned award be implemented within 60 days from the date on which it was made.
It was held that the objector has a right to prefer objection against the award within 3 months of making of the award and even within one more extended month if he showed sufficient cause for doing so. Further, as per section 36, an award can be enforced only after the time for making an application for setting aside the award u/s 34 has expired. Thus in view of sections 34 & 36, the directions given by the arbitrator to implement the award within 2 months of making of the award is contrary to the provisions of law and thus illegal and liable to be set aside.
However, this breach of law is not of the nature on the basis of which the award as a whole can be set aside.
Vindhya Telelinks Limited Vs Bharat Sanchar Nigam Ltd
In the instant case, the respondent had filed an application u/s 33 for interpretation of the award and for an additional award, which was pending before the arbitrator. In the meanwhile, the petitioner filed an execution application.
It was held that the execution application was premature. The time for filing objections to the award expires after 3 months from the date of disposal of an application u/s 33. Therefore in this case, the period of 3 months within which the respondent could file objections for setting aside the award cannot be said to have expired until a period of 3 months from the date of communication by the arbitrator after direction of this court rejecting the application u/s 33. Since the award can be enforced only after expiry of the time for making application to set aside the award, the execution proceedings are premature and not maintainable.
S. Kumar Vs Delhi Development Authority
This case clarified the point as to what is the proper time to enforce an award. It was held that in terms of the provisions of section 36, the award becomes enforceable in two eventualities; firstly where the time for making an application to set aside the award u/s 34 has expired and secondly if such application having been made, is refused.
Uttar Pradesh Co-operative Sugar Factories Federation Ltd, Lucknow Vs PS Misra
In the instant case, the petition u/s 34 was dismissed on ground of jurisdiction. The question that arose was whether an appeal was maintainable.
It was held that Section 37(1)(b) specifically makes such an order appealable, which either set aside or refused to set aside the award u/s 34. The rejection of the appellant's application u/s 34 would fall within the aforesaid clause and it would be immaterial as to whether the application u/s 34 has been rejected for want of jurisdiction or otherwise on merit. The said provision does not clarify anywhere that if an application u/s 34 is rejected on grounds of merit alone, only then the appeal would lie. The grounds of rejection may be multifarious but it is only the rejection of application which would give a right to the appellant to file an appeal.
ITI Ltd Vs Siemens Public Communications Network Ltd
The arbitration proceedings had started in 2001 and the parties instead of getting the arbitration concluded, had been litigating on interim applications till date. The question was whether a direct appeal to Supreme Court (SC) was maintainable.
It was held that a direct appeal to SC was maintainable in an appropriate case however, SC should not encourage litigants to reach SC directly either for reason that the remedy from this court would be more efficacious or quick.
In this case, the parties carried on with litigation instead of preferring to conclude the arbitration. If indeed urgency was there, then the party requiring or needing the quick disposal should have concentrated more on completing the arbitral proceedings rather than spending its time in court chasing various interlocutory applications in High Court. Thus, this court feels that there was no real urgency to approach SC.
Narayan Prasad Lohia Vs Nikunj Kumar Lohia
An award was held void and unenforceable by the single judge on various grounds. The Division Bench, while affirming the findings of the single judge, considered only two of the grounds on which the award was set aside by the single judge. Apart from these two grounds, there were other grounds also on which the single judge had held the award as void and ineffective.
It was held that the Division Bench should have also considered the other grounds on which the single judge set aside the award. Since there are more grounds available to the respondents to challenge the award apart from the two grounds on which the appellate Bench disposed of the appeals before it, it is only appropriate that the Division Bench should consider the other grounds also on which the award has been set aside by the single judge. This is necessary, in the event the court holds in favour of the appellant on the 2nd ground, the court will be deprived of the view of the High Court on other grounds on which the award was invalidated by the single judge.
Accordingly the HC Division Bench is directed to consider the other grounds on which the single judge had set aside the award.
Jabalpur Cable Network Pvt Ltd Vs ESPN Software India Pvt Ltd
In this particular case, the court below had expressed its opinion for not granting ex parte injunction. It was an order indicating the reason for not exercising the jurisdiction. Therefore it was a formal expression of an adjudication.
It was further held that it cannot be disputed that u/s 9 the court has the power to grant interim injunction or to take such other interim measure of protection as may appeal to the court to be just and convenient. Section 9(ii)(d) would cover the case of the appellant and in case does not cover the case by the clause (d), the width and amplitude of clause (e) gave the court below sufficiently wide power to issue an ex parte mandatory injunction to the respondents to provide star sports services to the appellants.
In view of this matter, if the conclusion of this court is correct then an order passed u/s 9 would be appealable u/s 37 (1)(a).
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