Mahesh B. Shah Vs. Joseph

Mahesh B. Shah vs Joseph

Disposition Petition dismissed Court Kerala Decided Jul 29, 2005

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Citation: sooperkanoon.com/727014
Court: Kerala High Court
Judge: S. Sankarasubban, J.
Decided On: Jul 29, 2005
Case Number: C.R.P. No. 330 of 2004
Subject: Arbitration
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- LABOUR & SERVICES Appointment: [V.K. Bali, CH, P.R. Raman & S. Siri Jagan, JJ] Post of Pharmacist in Homeopathy Subordinate Service - Special Rules for Kerala Homeopathy Subordinate Service Rules, 1999 introducing new qualifications Vacancy arising subsequent to coming into force of the said special rules Hel...

Key legal issue: Arbitration
Outcome / disposition: Petition dismissed
Acts & sections: Arbitration and Conciliation Act, 1996 - Sections 2, 34 and 36; Code of Civil Procedure (CPC) , 1908 - Sections 38

Parties & Advocates

Appellant / Petitioner

Mahesh B. Shah

Advocate Joy Thattil Ittoop, Adv.

Respondent

Joseph

Advocate Joby Cyriac, Adv.

Legal References

Acts: Arbitration and Conciliation Act, 1996 - Sections 2, 34 and 36; Code of Civil Procedure (CPC) , 1908 - Sections 38
Reported In: AIR2005Ker290; 2005(3)ARBLR483(Kerala); 2005(3)KLT787

Excerpt

- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors......a decree of the court'. under section 36, the award is enforced as a decree of the court. the section is not clear as to decree of which court. the court is defined under section 2(e) of the arbitration and conciliation act, which is as follows:'court' means the principal civil court of original jurisdiction in a district, and includes the high court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal civil court, or any court of small causes'.question is whether that definition is to be applied to section 36. a decree of a civil court is executed as per section 38 of the code of civil procedure. it states as follows: 'a decree may be executed either by the court which passed it, or by the court to which it is sent for execution'. here the court does not pass a decree. the award is passed by the arbitration committee which has got the force of the decree. the award is to be challenged in the court as defined under the above act. according to me, the court mentioned in section 36 also to be interpreted according to section 2(e). if that be so, the award is to be executed in the district court. hence, the court below is correct in holding that the munsiff's court has no jurisdiction.civil revision petition is dismissed.

Full Judgment

ORDER

S. Sankarasubban, J.

1. This Civil Revision Petition is filed against the order passed by the Additional Munsiff's Court Cherthala in E.P. No. 209 of 2000 in Ref: SE/AB/055/98. Decree holder has come in revision. There was a dispute between the decree holder and judgment debtor. That dispute was placed before the Arbitration Committee and the Arbitration Committee passed an award for Rs. 38,544/- together with interest at the rate of 12% per annum from the date of payment, i.e., 31.12.1995 to the revision petitioner within 21 days from the date of receipt of the award. Since the amount was not paid, the decree holder filed the E.P. before the Munsiff's Court, Ernakulam for the enforcement of the award. That E.P. was transferred to Cherthala, since the judgment debtor was staying within the jurisdiction of that Court.

2. Before the Munsiff's Court, Cherthala, the respondent contended that the Munsiff's Court has no jurisdiction. The lower Court held that the Court is defined as Principal Civil Court, which is a District Court and hence, the Munsiff's Court is not having the jurisdiction. It is against the above order that the present revision is filed.

3. Learned counsel for the petitioner submitted that it is true that the Court has been defined under the Arbitration and Conciliation Act, 1996. But according to the petitioner, the definition is subject to the context. According to the petitioner, usually a claim below Rs. 1 lakh is laid in the Munsiff's Court and execution is also laid in the Munsiff' s Court. Hence, learned counsel submitted that the Munsiff's Court has got jurisdiction. The only question to be decided in this case is which is the Court where an award can be enforced. Section 36 of the Arbitration and Conciliation Act states as follows:

'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'. Under Section 36, the award is enforced as a decree of the Court. The Section is not clear as to decree of which Court. The Court is defined under Section 2(e) of the Arbitration and Conciliation Act, which is as follows:'Court' means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such Principal Civil Court, or any Court of Small Causes'.

Question is whether that definition is to be applied to Section 36. A decree of a Civil Court is executed as per Section 38 of the Code of Civil Procedure. It states as follows: 'A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution'. Here the Court does not pass a decree. The award is passed by the Arbitration Committee which has got the force of the decree. The award is to be challenged in the Court as defined under the above Act. According to me, the Court mentioned in Section 36 also to be interpreted according to Section 2(e). If that be so, the award is to be executed in the District Court. Hence, the Court below is correct in holding that the Munsiff's Court has no jurisdiction.

Civil Revision Petition is dismissed.

Same Court & Year Kerala · 2005 Same Parties Mahesh B. Shah vs Joseph Same Subject Arbitration Same Judge S. Sankarasubban, J. Acts & Sections Arbitration and Conciliation Act, 1996 - Sections 2, 34 and 3...

Arbitration