ORDER
SHEET G.A.No.2222 of 2015 With E.C.No.552 of 2015 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE TATA CAPITAL FINANCIAL SERVICES LTD.Versus SUSANTA KUMAR SAMAL & ANR.
BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date: 11th August, 2015.
Appearance: Mr.Aniruddha Mitra, Adv.Mr.A.K.Upadhyay, Adv.… for the applicants/judgment-debtors Mr.Priyankar Saha, Adv.… for the decree-holder The Court: This application has been filed by the judgment-debtors for recalling of the order dated 18th June, 2015.
By the order dated 18th June, 2015, I have appointed a Receiver to take possession of the asset in question.
This application has been filed by the judgment-debtors for recalling of the said order on the ground that this Court has no jurisdiction to try and determine the execution application.
The argument appears to be that since the decreeholder filed the application under Section 9 of the Arbitration and Conciliation Act before the Bombay High Court, the application for execution can only be filed before the Bombay High Court in view of Section 42 of the Arbitration and Conciliation Act.
It is further submitted that the decree-holder is carrying on business at Mumbai and the judgment-debtors are the residents of Orissa.
Accordingly, this Court does not have jurisdiction to receive this application.
It is further urged that no notice of the award has been served upon the judgmentdebtors in terms of Section 31(5) of the Arbitration and Conciliation Act, inasmuch as, the said award is insufficiently stamped.
Mr.Arinuddha Mitra, learned Counsel for the judgment-debtors argued that under Section 36 of the Arbitration Act, “the award shall be enforced under the Code of Civil Procedure 1908 (5 of 1950) in the same manner as if it were a decree of the court”.
It is further contended that “court” has to mean what is defined in Section 2(e) i.e., the court having jurisdiction to decide the question forming the subject matter of the arbitration if the same had been the subject matter of a suit.
It is further contended that since in the present case the application under Section 9 was filed in the Bombay High Court Section 42 mandates the execution also to be filed in that court only.
The learned counsel has relied upon a single Bench decision as well as the Division Bench judgment of Bombay High Court in the case of L & T Finance Limited versus Mr.Kajal Kumar Das & Anr.
passed in Chamber Summons No.195 of 2011 in Execution Application No.1898 of 2011 in Arbitration No.561 of 2008 decided on December 3, 2014 and in the case of The Akola Janata Commercial Cooperative Bank LTD.versus Raju Natthuji Badhe passed in Letter Patent Appeal No.229 of 2010 decided on 22/23rd December, 2010 and submits that in the said decisions it has been held that for the purpose of considering the application under Section 34 of the Arbitration and Conciliation Act the Court shall taken into consideration as to whether any prior application has been filed in relation to the arbitration proceedings.
Per contra, the learned Counsel appearing on behalf of the decreeholder relies upon two decisions of Delhi High Court in International Breweries PVT.LTD.versus Mohan Meakins LTD.& Anr.
reported at 2008 (3) ARBLR581and in Daelim Industrial Co.LTD.versus Numaligarh Refinery LTD.reported at 2009 (3) ARBLR524and submits that in the said two judgments it has been categorically held that Section 32 of the Arbitration and Conciliation Act has no manner of application in so far as the enforcement of an award is concerned under Section 36 of the Arbitration and Conciliation Act.
There cannot be any dispute that had it been a suit, the Court at Calcutta would have the jurisdiction since the agreement was executed at Kolkata and payments have been received at Kolkata.
The execution application is not “arbitral proceedings” within the meaning of Section 42 of the Act and is not a subsequent application arising out of the agreement and the arbitral proceedings.
In fact the arbitral proceedings come to an end when the time for making an application to set aside the arbitral award expires.
The execution application is an enforcement of the award.
Thus the place of filing of the execution application need not be the place of the filing of the application under Section 34 of the Act for the reason of Section 42 of the Act.
Once, Section 42 is out of the way, the question arises as to whether “Court” in Section 36 is not to take its colour from Section 2(1)(e).If that were to be so then it will have to be seen which was the court which was competent to pass the decree had the subject matter of the arbitration been the subject matter of the suit.
On the basis of the averments made in the petition, prima facie it appears that the Court has jurisdiction.
This view is prima facie subject to hearing the parties after exchange of affidavits.
In so far as non-service of the award is concerned it appears that the award has been sent by registered post by the learned Arbitrator to the last known address of the judgment-debtORS.The address mentioned in the postal receipt annexed by the decree-holder shows that the copy of the award was sent by the learned Arbitrator to the last known address of the judgment-debtORS.The judgmentdebtORS.however, do not dispute the address mentioned on the postal receipt.
It is the settled law that if a letter is sent to the addressee at his last known address through the postal authority, a strong presumption arises that the letter reaches its destination.
The respondent at this stage is unable to dis-lodged such presumption.
It is not in dispute that the judgment-debtors are indebted to the decreeholder and the asset in question is required to be preserved.
The award is not under challenge.
Under such circumstance’s, I am of the view, that the Receiver shall take symbolic possession of the equipment in question after making inventory thereof.
Since it is submitted on behalf of the judgment-debtors that the equipment is not in possession of the judgment-debtORS.I direct the judgment-debtors to disclose the location of the equipment and assist the Receiver in taking symbolic possession of the asset in question after making inventory thereof.
The judgmentdebtors and the persons/entities in possession of the equipment shall not deal with and/or dispose of the equipment, in any manner whatsoever.
The judgmentdebtors shall cooperate with the Receiver in carrying out this order.
The Receiver shall be entitled to take assistance of the Officer-in-Charge of the local police station, in the event any resistance is faced by the Receiver in implementing this order.
The Receiver shall be allowed to enter any area or premises for making inventory of the equipment in question on the strength of this order.
The Receiver shall file a report on the returnable date.
The judgment-debtors shall without prejudice to their rights and contentions file affidavits of asset in Form No.16A Appendix E of the Code of Civil Procedure within a period of three weeks from date.
The affidavit-inopposition in GA No.2222 of 2015 shall be filed within two weeks from date; reply thereto, if any, be filed one week thereafter.
The applicants shall be treated as heard in part.
Let the matter appear four weeks hence.
(SOUMEN SEN, J.) sg2