- (1.) In this writ petition the petitioner has challenged the certificate of public demand under Sections 4 and 6 of the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as "1913 Act") in connection with Revenue Recovery Certificate Case No. 01/OP/10-11 and the notice under Section 6 of the Revenue Recovery Act, 1890 ('1890 Act' for short) both dated 12th July, 2011 issued by the Collector, South 24-Parganas, the respondent No.3, seeking to enforce an arbitral award passed under the Arbitration and Conciliation Act, 1996 (for short "1996 Act") on the ground that as Section 36 of the 1996 Act provides for execution of an award through civil process as enumerated in the Code of Civil Procedure, 1908, initiation of proceedings under 1913 Act and 1890 Act are without jurisdiction and illegal.
(2.) Before dealing with the issue, it is necessary to deal with the facts in brief. It has been stated that the petitioner was successful in a tender floated by the Rail Coach Factory, Kapurthala and consequently the General Manager and the Controller of Stores, the respondent Nos. 1 and 2 of the said factory issued a purchase order. As there was hike in the excise duty, the petitioner requested for enhancement of the quoted price. However, it was not acceded to by the respondent Nos.1 and 2 and purchase order was cancelled. Statement is in view of the contract entered into in writing between the petitioner and the respondent No.2 under the 1996 Act, the petitioner had invoked the arbitration clause claiming a sum of Rs. 9,92,125/-. Thereafter, arbitration proceedings were initiated and on 27th September, 1999 an arbitral award was passed by the Chief Engineer (Sole-Arbitrator), Rail Coach Factory, Kapurthala directing award for recovery of risk- purchase which was limited to 3,25,000/- to be paid by 31 st December, 1999 failing which it was directed that the award would carry an interest at the rate of 1% per month or part of month till payments were made. Aggrieved and dissatisfied with the arbitral award which was received at Kolkata, the petitioner preferred an application praying for setting aside the said award under Section 34 of the 1996 Act. The said application was registered as Misc. Case No. 9515 of 1999 in the Court of the learned Judge, 12th Bench, City Civil Court at Calcutta. By an order dated 6th August, 2002 the said application was dismissed. Aggrieved the petitioner preferred statutory appeal under Section 37 of the 1996 Act before the High Court at Calcutta being F.A.T. No. 3480 of 2002, which is still pending. Thereafter, the petitioners received the certificate of public demand under the 1913 Act as well as notice under Section 6 of the 1890 Act both dated 12th July, 2011 issued by the respondent No.3. On 25th July, 2011 the petitioner entered appearance before the Certificate Officer and filed objection under Section 9 of the 1913 Act denying liability and prayed for setting aside the said matter. According to the petitioner, as respondent Nos. 1 and 2 have submitted themselves to the jurisdiction under the 1996 Act pursuant to an agreement in writing, the said respondents cannot resort to recovery of arbitral award by invoking the provisions under the 1890 Act. The matter was taken up for hearing on 14th November, 2011 when after hearing the parties directions for filing of affidavits were issued and an interim order in terms of prayer "e" was passed. However, the respondents have not filed affidavits. The issue is whether the Collector, 24-Parganas (South), the respondent No.3, has the authority to initiate certificate proceedings under the 1890 Act and under the 1913 Act for enforcement of an arbitral award in view of Section 36 of the 1996 Act.
(3.) In order to decide the issue it is necessary to refer Section 36 of the 1996 Act which is as under:- "36. Enforcement.-Where the time for making an 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 enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court." It appears from a reading of Section 36 that statute specifically provides for enforcement of an arbitral award under the Code of Civil Procedure, 1908 as if it were a decree of the Court. However, an arbitral award can be put into execution after time for making an application to set aside the same under Section 34 had expired or such application having been made has been refused. Perusing Section 36 of the Act it is clear that the use of the word "shall" makes it mandatory to resort to the provisions of the Code for enforcement of an award treating it to a decree of the Court. The language of Section 36 is clear and unambiguous. Thus, when statute provides for enforcement of an award in a particular manner, it has to be resorted to. In the instant case, it is evident from facts that the General Manager, Rail Coach Factory, Kapurthala and the Controller of Stores, the respondent Nos. 1 and 2 pursuant to an agreement in writing had submitted to the jurisdiction under the 1996 Act. Having submitted to the said jurisdiction, the said respondents cannot now invoke the provisions of 1890 Act. Consequently, the assumption of jurisdiction by the respondent No.3 by issuing the impugned notices by invoking the provisions of 1890 Act and 1913 Act are also without jurisdiction and illegal. Therefore, the impugned notices issued by the Collector, South 24-Parganas, the respondent No.3, appearing at pages 29 and 30 of the writ petition are set aside and quashed. Interim order is confirmed. The writ petition is allowed. No order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.;