Samapti Chatterjee, J. - (1.) The petitioner/claimant/award holder filed the present revisional application assailing order No. 28 dated 29th September, 2015 passed by the Learned Civil Judge (Senior Division) 2nd Court at Barasat in Miscellaneous Case No. 81 of 2015 arising out of Arbitration Execution Case No. 63 of 2013.
(2.) The key issue involved in this revisional application is whether the Executing Court can entertain an application under Sec. 47 of the Code of Civil Procedure raising objection as to the execution, discharge and satisfaction of an award in the nature of a decree? Further issue involved in the present revisional application is whether such a decree is non -est or in other words is a nullity and whether the Executing Court is empowered to make a declaration to that effect ? FACT OF THE CASE
(3.) The brief case of the claimant/award holder/petitioner is that the petitioner being a Private Limited Company entered into an agreement with the opposite party on 26th September, 2003 whereby the petitioner was provided with a commercial space with super built -up area of 2900 sq.ft along with two car parking spaces and all other facilities at Block -EP and GP, Salt Lake, Sector -V, Kolkata -91. In the said agreement there was an arbitration clause. Since some disputes and differences arose between the parties the petitioner as per the arbitration clause contained in Clause 16 of the said agreement on 26th September, 2003 sent a letter under registered post to the opposite party on 18th September, 2007 thereby invoking the arbitration clause by nominating the Arbitrator and requiring him to enter upon the reference. The sole arbitrator issued notices to both the petitioner and the opposite party requesting them to be present on 18th December, 2007 at the venue mentioned therein for taking steps for arbitral proceeding. The petitioner entered appearance and made their submission before the Learned Arbitrator but none appeared on behalf of the opposite party despite receipt of the notice issued by the Arbitrator. The petitioner filed their statement of claim and served copy of the statement of claim upon the opposite party but opposite party neither filed statement of defence nor attended the arbitration proceeding. Since the opposite party failed and neglected to enter appearance in the reference despite notice and contested the claim the Learned Arbitrator proceeded with the arbitration proceedings. Ultimately Learned Arbitrator after considering all aspects of matter and materials on record on 21st March, 2013 passed an award directing the opposite party to pay a total sum of Rs. 4,91,09,700/ - to the claimant/petitioner within a period of 30 days from the date of receipt of the copy of the award and in default the opposite party was to pay interest at the rate of 18 per cent per annum till recovery by holding that the claimant/petitioner suffered loss and damages to the extent of Rs. 4 crores and is entitled to an interest of Rs. 85,00000/ -. It was also held by the Learned Arbitrator that the claimant/petitioner is further entitled to legal expenses and the cost of arbitration proceedings for 38 sittings assessed at Rs. 3,09,700/ - and Rs. 3,00000/ - for incidental expenses. The said award was duly communicated to the opposite party on 5th April, 2013 but the opposite party failed to comply with the award passed by the Learned Arbitrator. Therefore, due to non -payment of the awarded amount the petitioner filed an application on 12th September, 2013 for execution of the arbitration award under Sec. 36 of the Arbitration & Conciliation Act, 1996 following the procedure prescribed in Order 21 Rule 11 of the Code of Civil Procedure, 1908 before the Learned Civil Judge (Senior Division) 2nd Court, Barasat which was registered as Arbitration Execution Case No. 63 of 2013. The petitioner also moved an application under Article 227 of the Constitution of India praying for expeditious disposal of the said Arbitration Execution Case and this Hon'ble Court by Order dated 2nd April, 2015 was pleased to dispose of the said revisional application directing the Learned Court below to dispose of the Arbitration Execution Case within one month. Pursuant to the said direction the Learned Court below took up the hearing of the Arbitration Execution case and vide order dated 10th July, 2015 issued order of attachment of movable and immovable property of the opposite party. Subsequently by order dated 24th July, 2015 Learned Court below issued two warrants, one for attachment of movable property and another for attachment of immovable property of the opposite party. On 21st July, 2015 the opposite party filed a Misc. Case being No. 67 of 2015 under Sec. 47 read with Sec. 151 of the Code of Civil Procedure, 1908 before the Learned Civil Judge (Senior Division) 2nd Court at Barasat questioning the jurisdiction of the sole Arbitrator to pass the award and validity or the legality of the such award and prayed for dismissal of the Execution case and/or rejection of the execution application. The opposite party also prayed for recalling the orders of attachment. Learned Court below by order dated 17th August, 2015 rejected the said application. The opposite party filed another application under Sec. 47 of the Code of Civil Procedure, 1908 praying for declaration that arbitral award dated 21st March, 2013 is non -est and the arbitration execution proceeding arising out of such arbitral award is also invalid and also prayed for vacating all interlocutory orders including the orders of attachments of movable and immovable property of the opposite party. The petitioner/award holder/claimant filed a written objection inter alia contending that once the arbitration award was passed and attained finality in the absence of any challenge to the said award the Learned Trial Court has got no jurisdiction to go behind the decree vis a vis the award. It was also contended that the arbitration proceedings was duly instituted and continued with due compliance of the provisions of the Act with notice duly served upon the opposite party who chose not to contest the claim and the proceeding, therefore, when Execution Case was being proceeded with and the order of attachment have been passed, the Executing Court has no jurisdiction to entertain and decide the question of invalidity and illegality of the award. The Learned Court below by order dated 29th September, 2015 allowed the second application under Sec. 47 of the Code of Civil Procedure, 1908 and vacated all interlocutory orders and the writ of attachment issued by the said Learned Court below was also recalled. Learned Court below also held that the said order does not attract the principle of res judicata even after dismissal of 1st application on merit being Misc. Case No. 67 of 2015. It was also held by the Learned Court below that the arbitral award suffers from inherent lack of jurisdiction and therefore, it was void ab initio, a nullity and non -est and thus the said award dated 21st March, 2013 was also held to be not executable and/or not enforceable in the law. Thus virtually the Learned Court acted as the appellate authority of its own order dated 17th August, 2015. SUBMISSIONS OF THE LEARNED ADVOCATES;