M BENERJEE AND SONS SHILLONG Vs. M N BHAGABATI

JUDGEMENT

(1.) The brief facts relevant for the disposal of this Civil Revision and the Misc. cases are that on 26-7-2000. M/s. M. Banerjee and Sons, filed execution case No. 4(H) 2000 in the Court of the learned Assistant District Judge, Shillong. In the said application, M/s. M. Banerjee and Sons made a prayer to the Court for directing the sole Arbitrator Shri M. N. Bhagawati to file the original award dated 16-2-2000 in the Court and on receipt of the award passed necessary order for proceeding with the execution of the award. But, the learned Assistant District Judge, passed orders on 26-7-2000 that as no decree has been filed and enclosed with the Execution Application, the Application is dismissed. Aggrieved by the said order dated 26-7-2000 passed by the learned Assistant District Judge, Shillong, dismissing (Arb.) Misc. Ex. 4(H) 2000, M/s. M. Banerjee and Sons, have filed a Revision u/S. 115 of the Code of Civil Procedure, 1908 numbered as CR(P) 39(SG) 2000 before this Court. Along with the said CR(P), M/s. M. Banerjee and Sons have also filed Misc. Case No. 163(SH) 2000, for transferring the said (Arb.) Misc. Execution Case No. 4(H) 2000, from the Court of the learned Assistant District Judge, Shillong, to the Court of the District Judge, Shillong.

(2.) On 22-9-2000, the State Bank of India, filed an application u/S. 34 of the Arbitration and Conciliation Act, 1996, in the Court of the learned District Judge, Kamrup, at Guwahati, which was numbered as Misc. (Arbitration) Case No. 474 of 2000. In the said application, the State Bank of India, prayed for setting aside the award passed by Shri M. N. Bhagwati, Sole Arbitrator on 16-2-2000, and pending disposal of the said application, to stay the operation of the award. On 28-9-2000, the learned District Judge, Kamrup, admitted the aforesaid application u/S. 34 of the Arbitration and Conciliation Act, 1996 (for short the Act, 1996) and passed further orders that pending hearing of the application, the operation of the Arbitral Award dated 16-2-2000 passed by the Sole Arbitrator, shall remain stayed. Thereafter, M/s. M. Banerjee and Sons filed Misc. Case No. 168(SH) 2000 before this Court in CR(P) 39(SH) 2000 praying for transfer of Misc. (Arb.) Case No. 474 of 2000 from the Court of the learned District Judge, Kamrup, to this Court and in the interim for stay of the operation of the order dated 28-9-2000 passed by the learned District Judge in the said Misc. (Arb.) Case No. 474 of 2000 and for staying of further proceedings of the said case before the learned District Judge, Kamrup. On 3-11-2000, the Court, issued notice in the said Misc. Case 168(SH) 2000, and passed orders that in the meantime further proceedings of the said case before the learned District Judge, Kamrup, Guwahati, between the State Bank of India and M/s. Banerjee and Sons shall remain suspended. After receipt of the said notice, the State Bank of India, has filed Misc. Case 182(SH) 2000, in this Court contending inter alia that Shillong Bench of this Court had no jurisdiction to pass orders in respect of the case arising at Gauhati, and for setting aside the order passed by this Court in Misc. Case No. 168(SH) 2000 on 3-11-2000 staying further proceedings in Misc. (Arbitration) Case No. 474 of 2000, between the State Bank of India and M/s. M. Banerjee and Sons, in the Court of the learned District Judge, Kamrup.

(3.) Mr. S. R. Sen, learned counsel for the petitioner M/s. M. Banerjee and Sons submitted that u/S. 36 of the Act of 1996, the award of the Arbitrator can be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. Thus the view taken by the learned Assistant District Judge, Shillong in the impugned order dated 26-7-2000, that the award dated 16-2-2000, passed by the Arbitrator can only be executed if it has been made a decree of the Court is erroneous in law. According to Mr. Sen, the learned Assistant District Judge, Shillong, should have exercised jurisdiction and executed the award of the Arbitrator on the application filed by the petitioner and as he has failed to exercise jurisdiction vested in him this Court in exercise of its power u/S. 115 of the Civil Procedure Code, 1908, can set aside the said order dated 26-7-2000, and the learned Assistant District Judge, Shillong, should remit the matter back to the District Judge, Shillong for passing order for execution of the award. He further submitted that Section 42 of the Act, 1996, clearly provides that where with respect to in arbitration agreement any application under the part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent application arising after that agreement and the arbitral proceedings shall be made in that Court and in no other Court.