SUNDARAM FINANCE LIMITEDversusABDUL SAMAD & ANR.

                        [2018] 10 S.C.R. 451                             451


                SUNDARAM FINANCE LIMITED                                 A
                                  v.
                     ABDUL SAMAD & ANR.
                   (Civil Appeal No. 1650 of 2018)
                       FEBRUARY 15, 2018                                 B
  [J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]
      Arbitration and Conciliation Act, 1996 – ss.36, 32, 42 and
2(e) – Whether an award under the Act is required to be first filed in
the court having jurisdiction over the arbitration proceedings for
                                                                         C
execution and then to obtain transfer of the decree or whether the
award can be straightway filed and executed in the Court where
the assets are located – Held: s.36 of the Act shows that an award is
to be enforced in accordance with the provisions of the Code of
Civil Procedure in the same manner as if it were a decree – The
enforcement of an award through its execution can be filed anywhere      D
in the country where such decree can be executed and there is no
requirement for obtaining a transfer of the decree from the Court,
which would have jurisdiction over the arbitral proceedings – Code
of Civil Procedure, 1908 – ss.38,39,46 and Or.XXI, rr.6, 11(2).
      Allowing the appeal, the Court                                     E
      HELD: 1. The section 36 states that an award is to be
enforced in accordance with the provisions of the Code of Civil
Procedure in the same manner as if it were a decree. It is, thus,
the enforcement mechanism, which is akin to the enforcement of
a decree but the award itself is not a decree of the civil court as      F
no decree whatsoever is passed by the civil court. It is the arbitral
tribunal, which renders an award and the tribunal does not have
the power of execution of a decree. For the purposes of execution
of a decree the award is to be enforced in the same manner as if
it was a decree under the said Code. [Para 15] [462-D-E]
                                                                         G
      2. The enforcement of an award through its execution can
be filed anywhere in the country where such decree can be
executed and there is no requirement for obtaining a transfer of
the decree from the Court, which would have jurisdiction over
the arbitral proceedings. [Para 22] [464-G]
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                                   451
452           SUPREME COURT REPORTS                       [2018] 10 S.C.R.


A          Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd.
           2009 159 DLT 579; Maharashtra Apex Corporation
           Limited v. V. Balaji G. & Anr. 2011 (4) KLJ 408; Kotak
           Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (2011)
           4 LW 745; Kotak Mahindra Bank Ltd. v. Ram Sharan
           Gurjar & Anr. (2012) 1 RLW 960; GE Money Financial
B
           Services Ltd. v. Mohd. Azaz & Anr. 2013 SCC OnLine
           All 13365 = (2013) 100 ALR 766; Indusind Bank Ltd.
           v. Bhullar Transport Company MANU/PH/2896/2012;
           Sri Chandrashekhar v. Tata Motor finance Ltd. & Ors.
           (2015) 1 AIR Kant R 261 – approved.
C          Computer Sciences Corporation India Pvt. Ltd. v.
           Harishchandra Lodwal & Anr. AIR 2006 Madhya
           Pradesh 34; Jasvinder Kaur & Anr. v. Tata Motor
           Finance Limited CMPMO No. 56/2013 decided on
           17.9.2013 – disapproved.
D          Swastik Gases Private Limited v. Indian Oil Corporation
           Limited JT 2013 (10) SC 35; I.C.D.S. Ltd. v. Mangala
           Builders Pvt. Ltd. & Ors. AIR 2001 Karnataka 364 –
           referred to.
                            Case Law Reference
E
      AIR 2006 Madhya Pradesh 34            disapproved      Para 5
      JT 2013 (10) SC 35                    referred to      Para 5
      AIR 2001 Karnataka 364                referred to      Para 5
      2009 159 DLT 579                      approved         Para 5
F
      2011 (4) KLJ 408                      approved         Para 5
      (2011) 4 LW 745                       approved         Para 5
      (2012) 1 RLW 960                      approved         Para 5

G     (2015) 1 AIR Kant R 261               approved         Para 5
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1650
      of 2018
            From the Judgment and Order dated 20.03.2014 of the District
      Judge, Morena, Madhya Pradesh in Execution Case No. 108/2011/13
H
 SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                              453


      Balaji Srinivasan, Ms. Pratiksha Mishra, Mayank Khirsagar,             A
Vaishnavi Subrahmanyam, Abhishek Bharti, Advs. for the Appellant.
     Prashant Shukla, Pashupathi Nath Razdan, Osama Ahmad Abbasi,
Ms. Anushree Mishra, Advs. for the Respondents.
      The Judgment of the Court was delivered by
                                                                             B
       SANJAY KISHAN KAUL, J. 1. The divergence of legal opinion
of different High Courts on the question as to whether an award under
the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the
‘said Act’) is required to be first filed in the court having jurisdiction
over the arbitration proceedings for execution and then to obtain transfer
of the decree or whether the award can be straightway filed and executed     C
in the Court where the assets are located is required to be settled in the
present appeal.
      Facts:
       2. The appellant claims that the first respondent approached the      D
appellant for grant of a loan for purchase of a Tata Lorry-HCV 2005
model, which loan was granted by the appellant on the terms & conditions
specified in the Loan Agreement dated 18.8.2005. Respondent No.2 is
stated to have stood guarantee for the repayment of the loan by executing
a separate guarantee letter of the same date. The loan had to be repaid
in installments commencing 3.9.2005 to 3.1.2009.                             E
       3. The appellant alleges that respondent No.1 committed default
in payment from the 20th installment onwards. The repossession, however,
of the vehicle could not take place and in order to recover the loan,
arbitration proceedings were initiated in terms of the arbitration clause
contained in the Loan Agreement. Mr. S. Santhanakrishnan, Advocate           F
was appointed as the sole arbitrator on 3.5.2011 and the claim statement
was filed before the arbitrator but the respondents remained unserved.
Notice was served through publication but since none appeared for the
respondents, an ex parte arbitration award was made on 22.10.2011 for
a sum of Rs.12.69,420 with interest at 18 per cent per annum from
                                                                             G
4.4.2011 till realization and costs.
      4. The case of the appellant is that the award being enforceable
as a decree under Section 36 of the said Act, execution proceedings
were filed in the jurisdiction of the courts at Morena, Madhya Pradesh
under Section 47 read with Section 151 and Order 21 Rule 27 of the
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454               SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A     Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said
      Code’). The respondents sought to contest the proceedings inter alia
      on the ground that the vehicle against which the loan was obtained was
      stolen. It is not necessary to go into further details of the proceedings
      but suffice to say that the trial court vide order dated 20.3.2014 return
      the execution application on account of lack of jurisdiction to be presented
B
      to the court of competent jurisdiction. The effect of the judgment was
      that the appellant was required to file the execution proceedings first
      before the court of competent jurisdiction in Tamil Nadu, obtain a transfer
      of the decree and then only could the proceedings be filed in the trial
      court at Morena. This view adopted by the trial court was in turn based
C     on the judgment of the Madhya Pradesh High Court and the opinion of
      the Karnataka High Court while it is pleaded that the view of the Rajasthan
      High Court and the Delhi High Court were to the contrary. The petitioner
      did not approach the High Court against the said order of the trial court
      but straightway approached this Court by filing the Special Leave Petition
      on the ground that no useful purpose would be served by approaching
D
      the Madhya Pradesh High Court in light of the view already expressed
      by that Court in conflict with the opinions of some other High Courts.
               The Conflicting Views:
               A. The transfer of decree should first be obtained before filing
E              the execution petition before the Court where the assets are
               located:
            5. The aforesaid view has been adopted by the Madhya Pradesh
      and the Himachal Pradesh High Courts:
                  i. Computer Sciences Corporation India Pvt. Ltd. v.
F                 Harishchandra Lodwal & Anr.1– The learned single Judge
                  of the Madhya Pradesh High Court took recourse to the
                  provisions of Section 42 of the said Act, dealing with the issue
                  of jurisdiction in respect of an arbitration agreement read with
                  Section 2(e) of the said Act which defines the ‘Court’. In the
G                 context of Section 36 of the said Act dealing with the
                  enforcement of an award prescribing that “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 was
                  observed that the same principle would apply as for enforcing
      1
          AIR 2006 Madhya Pradesh 34
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    SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                             455
               [SANJAY KISHAN KAUL, J.]

          of a decree. Since Section 37 of the Code defines the Court          A
          which passes the decree and Section 39 lays down the
          procedure for transfer of decree, it was opined that for
          execution of an award a transfer of the decree was mandatory.
          ii. Jasvinder Kaur & Anr. v. Tata Motor Finance Limited2
          of the High Court of Himachal Pradesh, Shimla – the learned          B
          single Judge took note of the fact that the arbitration
          proceedings were to be settled in Mumbai in accordance with
          the said Act and the award had been made in Mumbai.
          Thereafter the learned single Judge copiously extracted from
          the judgment of this Court in Swastik Gases Private Limited
          v. Indian Oil Corporation Limited3. The learned Judge then           C
          proceeded to, once again, copiously extract from the then
          prevailing view of the Karnataka High Court where a learned
          single Judge in I.C.D.S. Ltd. v. Mangala Builders Pvt. Ltd.
          & Ors.4 had opined in favour of the aforesaid view.
       B. An award is to be enforced in accordance with the                    D
       provisions of the said Code in the same manner as if it were a
       decree of the Court as per Section 36 of the said Act does not
       imply that the award is a decree of a particular court and it is
       only a fiction. Thus, the award can be filed for execution
       before the court where the assets of the judgment debtor are            E
       located:
          i. Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. 5
          (Delhi High Court) – The learned single Judge of the Delhi
          High Court repelled the contention that the jurisdictional Section
          42 of the said Act requiring an application under Section 34 of      F
          the said Act to be filed in that Court would not extend to the
          execution of a decree. The execution application was not
          ‘arbitral proceedings’. Section 38 of the said Code applies to a
          decree passed by the Court prescribing that the decree may
          be executed by the Court which passed it, or by the Court to
          which it was sent for execution. In case of an award no court        G
          passes the decree.
2
  CMPMO No.56/2013 decided on 17.9.2013
3
  JT 2013 (10) SC 35
4
  AIR 2001 Karnataka 364
5
  2009 159 DLT 579                                                             H
456               SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A                     The learned single Judge went into the discussion of the
                   effect of the provisions of Section 635(4) of the Companies
                   Act, 1956 providing for the order of the Company Law Board
                   to be enforced by the Court in certain circumstances to draw
                   an analogy therefrom.
B                  ii. Maharashtra Apex Corporation Limited v. V. Balaji G.
                   & Anr.6 (Kerala High Court) – The learned single Judge
                   expressed the view that the Court cannot insist for a decree to
                   receive an execution application on its file and, thus, there was
                   no question of transfer of a decree. The execution court was
                   to accept the execution petition with a certified copy of the
C                  award wherever it was filed.
                   iii. Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors.7
                   (Madras High Court) – Section 39 of the Code enables the
                   Court which passed the decree to transfer it to any subordinate
                   court even of its own motion without application by the decree
D                  holder. The learned single Judge of the Madras High Court
                   examined the provisions of the said Act and the said Code and
                   in the process, a reference was made to Section 41 of the said
                   Code imposing an obligation upon the executing court to inform
                   the court which passed the decree about the completion of
E                  execution or about the failure to execute the decree along with
                   attending circumstances. A passing reference was made to
                   Section 46 of the said Act which speaks of precepts. In a
                   nutshell the conclusion made was that every decree of a civil
                   court was liable to be executed primarily by the court which
                   passed the decree. On the other hand, in case of an award, the
F                  same is liable to be enforced under Section 36 of the said Act
                   in the same manner as if it were a decree of the court and thus
                   the award passed is equated to a decree of the court, only for
                   purposes of execution. The execution of the award does not
                   require a seal of approval by the civil court as distinct from the
G                  provisions under the Arbitration Act, 1940. The award cannot
                   be executed through the arbitral tribunal which passed the
                   award and, thus, there is no situation envisaged for the arbitral
                   tribunal which passed the decree (or award) to transfer the
      6
          2011 (4) KLJ 408
      7
          (2011) 4 LW 745
H
    SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                                457
               [SANJAY KISHAN KAUL, J.]

             decree to any other court for its execution. There was also no       A
             provision either in the Code or anywhere else to treat a court
             within whose jurisdiction the arbitral proceedings took place
             as the court which passed the decree.
                It was, thus, opined that:
             “19. While the award passed by an arbitral tribunal is deemed        B
             to be a decree of a civil court under section 36 of the 1996 Act,
             there is no deeming fiction anywhere to hold that the court
             within whose jurisdiction the arbitral award was passed, should
             be taken to be the court which passed the decree. Therefore,
             the whole procedure of filing an execution petition before the       C
             court within whose jurisdiction the arbitral award was passed,
             as though it is the court which passed the decree, is pathetically
             misconceived.”
             xxxx       xxxx         xxxx            xxxx        xxxx
             “21. Therefore, it is clear that no Court to which an application    D
             for execution of an award is presented, can insist on the filing
             of the execution petition first before some other Court and to
             have it transmitted to it later. It appears that the High Court of
             Bombay has also adopted the same view, though not by a very
             elaborate order.”                                                    E
             In another perspective it was observed that in view of Section
             21 of the said Act parties could determine the place of
             arbitration and thus, the Act transcends all territorial barriers.
             iv. Kotak Mahindra Bank Ltd. v. Ram Sharan Gurjar &
             Anr.8 (Rajasthan High Court) – The learned single Judge of           F
             the Rajasthan High Court agreed with the view adopted by the
             Delhi High Court.
             v. GE Money Financial Services Ltd. v. Mohd. Azaz & Anr.9
             (Allahabad High Court, Lucknow Bench) – The learned single
             Judge observed that the arbitrator cannot be treated as a court      G
             although the award made by him will be executed as a decree.
             Thus, Sections, 38 & 39 of the said Code would have no
             application and the award can, thus, be filed for execution as a
8
    (2012) 1 RLW 960
9
    2013 SCC OnLine All 13365 = (2013) 100 ALR 766                                H
458                SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A                  decree of civil court wherever the judgment debtor resides or
                   carries on business or has properties within the jurisdiction of
                   the said court.
                   vi. Indusind Bank Ltd. v. Bhullar Transport Company10
                   (Punjab & Haryana High Court) – The view of the Delhi High
B                  Court referred to aforesaid was adopted.
                   vii. Sri Chandrashekhar v. Tata Motor finance Ltd. & Ors.11
                   (Karnataka High Court) – The learned single Judge of the
                   Karnataka High Court opined that the question of filing an
                   execution petition before the court which passed the decree
C                  and then seeking a transfer of the decree to the court where
                   the assets are located would not arise, as an award is not a
                   decree passed by the court.
                Our View:
            6. In order to appreciate the controversy, we would first like to
D     deal with the provisions of the said Code and the said Act.
            7. Part II of the said Code deals with execution proceedings.
      Section 37 of the said Code defines the ‘Court’, which passed the decree.
      Section 38 of the said Code provides as to by which court the decree
      would be executed and reads as under:
E
                “38. Court by which decree may be executed. – Adecree
                may be executed either by the Court which passed it, or by the
                Court to which it is sent for execution.”
            8. Section 39 of the said Code provides for transfer of decree and
      reads as under:
F
                “39. Transfer of decree. – (1)The Court which passed a decree
                may, on the application of the decree-holder, send it for execution
                to another Court [of competent jurisdiction],-
                (a) if the person against whom the decree is passed actually and
G               voluntarily resides or carries on business, or personally works for
                gain, within the local limits of the jurisdiction of such other Court,
                or

      10
           MANU/PH/2896/2012
      11
           (2015) 1 AIR Kant R 261
H
 SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                                 459
            [SANJAY KISHAN KAUL, J.]

      (b) if such person has no property within the local limits of the         A
      jurisdiction of the Court which passed the decree sufficient to
      satisfy such decree and has property within the local limits of the
      jurisdiction of such other Court, or
      (c) if the decree directs the sale or delivery of immovable property
      situate outside the local limits of the jurisdiction of the Court which   B
      passed it, or
      (d) if the Court which passed the decree considers for any other
      reason, which it shall record in writing, that the decree should be
      executed by such other Court.
      (2) The Court which passed the decree may of its own motion               C
      send it for execution to any subordinate Court of competent
      jurisdiction.
      [(3) For the purposes of this section, a Court shall be deemed to
      be a Court of competent jurisdiction if, at the time of making the
      application for the transfer of decree to it, such Court would have       D
      jurisdiction to try the suit in which such decree was passed.]
      [(4) Nothing in this section shall be deemed to authorise the Court
      which passed a decree to execute such decree against any person
      or property outside the local limits of its jurisdiction.]”
                                                                                E
      9. One of the relevant provisions, the effect of which has not
been really discussed in any of the judgments referred to aforesaid is
Section 46 of the said Code which defines Precepts as under:
      “46. Precepts. – (1)Upon the application of the decree-holder
      the Court which passed the decree may, whenever it thinks fit,
                                                                                F
      issue a precept to any other Court which would be competent to
      execute such decree to attach any property belonging to the
      judgment-debtor and specified in the precept.
      (2) The Court to which a precept is sent shall proceed to attach
      the property in the manner prescribed in regard to the attachment
      of property in execution of a decree:                                     G

      Provided that no attachment under a precept shall continue for
      more than two months unless the period of attachment is extended
      by an order of the Court which passed the decree or unless before
      the determination of such attachment the decree has been
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460             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           transferred to the Court by which the attachment has been made
            and the decree-holder has applied for an order for the sale of
            such property. Questions to be determined by Court executing
            decree”
              10. The relevance of the aforesaid provision is that the application
B     of the decree holder is made to the Court which passed the decree,
      which issues the precepts to any other Court competent to execute the
      said decree. As noticed, the expression “the Court which passed the
      decree” is as per Section 37 of the said Code. We may note at this stage
      itself that in the case of an award there is no decree passed but the
      award itself is executed as a decree by fiction. The provisions of the
C     said Act traverse a different path from the Arbitration Act, 1940, which
      required an award made to be filed in Court and a decree to be passed
      thereon whereupon it would be executable.
              11. Now turning to the provisions of Order XXI of the said Code,
      which deals with execution of decrees and orders. In case a Court desires
D     that its own decree is to be executed by another court, the manner for
      doing so is provided by Rule 6, which reads as under:
            “Order XXI – Execution of Decrees and Orders
            xxxx            xxxx             xxxx           xxxx            xxxx
E           6. Procedure where court desires that its own decree shall
            be executed by another court.- The court sending a decree for
            execution shall send—
            (a) a copy of the decree;
            (b) a certificate setting forth that satisfaction of the decree has
F
            not been obtained by execution within the jurisdiction of the court
            by which it was passed, or, where the decree has been executed
            in part, the extent to which satisfaction has been obtained and
            what part of the decree remains unsatisfied; and
            (c) a copy of any order for the execution of the decree, or, if no
G           such order has been made, a certificate to that effect.”
            12. The manner of presentation of an application is contained in
      Rule 11(2) of Order XXI, which reads as under:
            “Order XXI – Execution of Decrees and Orders
H           xxxx          xxxx            xxxx           xxxx           xxxx
 SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                               461
            [SANJAY KISHAN KAUL, J.]

      11 (2) Written application—Save as otherwise provided by sub-           A
      rule (1), every application for the execution of a decree shall be in
      writing, signed and verified by the applicant or by some other
      person proved to the satisfaction of the court to be acquainted
      with the facts of the case, and shall contain in a tabular form the
      following particulars, namely:—
                                                                              B
      (a) the number of the suit;
      (b) the names of the parties;
      (c) the date of the decree;
      (d) whether any appeal has been preferred from the decree;              C
      (e) whether any, and (if any) what, payment or other adjustment
      of the matter in controversy has been made between the parties
      subsequently to the decree;
      (f) whether any, and (if any) what, previous applications have
      been made for the execution of the decree, the dates of such            D
      applications and their results;
      (g) the amount with interest (if any) due upon the decree, or other
      relief granted thereby, together with particulars of any cross
      decree, whether passed before or after the date of the decree
      sought to be executed;                                                  E
      (h) the amount of the costs (if any) awarded;
      (i) the name of the person against whom execution of the decree
      is sought; and the mode in which the assistance of the court is
      required, whether—
                                                                              F
      (i) by the delivery of any property specifically decreed;
      (ii) by the attachment, or by the attachment and sale, or by the
      sale without attachment, of any property;
      (iii) by the arrest and detention in prison of any person;
                                                                              G
      (iv) by the appointment of a receiver;
      (v) otherwise, as the nature of the relief granted may require.”
      13. A perusal of the aforesaid shows that what is sought to be
disclosed is that the details like the number of suits, appeal against the
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462            SUPREME COURT REPORTS                            [2018] 10 S.C.R.


A     decree, etc. find a place, which really does not have a relevance to the
      fiction of an award to be treated as a decree of the Court for purposes
      of execution.
            14. We would now like to refer to the provisions of the said Act,
      more specifically Section 36(1), which deals with the enforcement of
B     the award:
            “36. Enforcement. – (1) Where the time for making an
            application to set aside the arbitral award under section 34 has
            expired, then, subject to the provisions of sub-section (2), such
            award shall be enforced in accordance with the provisions of the
C           Code of Civil Procedure, 1908 (5 to 1908), in the same manner as
            if it were a decree of the court.”
              15. The aforesaid provision would show that an award is to be
      enforced in accordance with the provisions of the said code in the same
      manner as if it were a decree. It is, thus, the enforcement mechanism,
D     which is akin to the enforcement of a decree but the award itself is not
      a decree of the civil court as no decree whatsoever is passed by the civil
      court. It is the arbitral tribunal, which renders an award and the tribunal
      does not have the power of execution of a decree. For the purposes of
      execution of a decree the award is to be enforced in the same manner
      as if it was a decree under the said Code.
E
            16. Section 2(e) of the said Act defines ‘Court’ as under:
            “2. Definitions. ………
            xxxx         xxxx            xxxx          xxxx             xxxx
            [(e) “Court” means –
F
            (i) in the case of an arbitration other than international commercial
            arbitration, 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
G           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;
            (ii) in the case of international commercial arbitration, the High
            Court in exercise of its ordinary original civil jurisdiction, having
H           jurisdiction to decide the questions forming the subject-matter of
 SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                                  463
            [SANJAY KISHAN KAUL, J.]

      a suit, and in other cases, a High Court having jurisdiction to hear       A
      appeals from decrees of courts subordinate to that High Court;]”
       17. The line of reasoning supporting the award to be filed in a so-
called court of competent jurisdiction and then to obtain a transfer of the
decree is primarily based on the jurisdiction clause found in Section 42,
which reads as under:                                                            B
      “42. Jurisdiction. – Notwithstanding anything contained
      elsewhere in this Part or in any other law for the time being in
      force, where with respect to an arbitration agreement any
      application under this Part has been made in a Court, that Court
      alone shall have jurisdiction over the arbitral proceedings and all        C
      subsequent applications arising out of that agreement and the
      arbitral proceedings shall be made in that Court and in no other
      Court.”
       18. The aforesaid provision, however, applies with respect to an
application being filed in Court under Part I. The jurisdiction is over the      D
arbitral proceedings. The subsequent application arising from that
agreement and the arbitral proceedings are to be made in that court
alone. However, what has been lost sight of is Section 32 of the said
Act, which reads as under:
      “32. Termination of proceedings.—                                          E
      (1) The arbitral proceedings shall be terminated by the final arbitral
      award or by an order of the arbitral tribunal under sub-section
      (2).
      (2) The arbitral tribunal shall issue an order for the termination of
      the arbitral proceedings where—                                            F
      (a) the claimant withdraws his claim, unless the respondent objects
      to the order and the arbitral tribunal recognises a legitimate interest
      on his part in obtaining a final settlement of the dispute,
      (b) the parties agree on the termination of the proceedings, or
                                                                                 G
      (c) the arbitral tribunal finds that the continuation of the proceedings
      has for any other reason become unnecessary or impossible.
      (3) Subject to section 33 and sub-section (4) of section 34, the
      mandate of the arbitral tribunal shall terminate with the termination
      of the arbitral proceedings.”                                              H
464                SUPREME COURT REPORTS                      [2018] 10 S.C.R.


A            19. The aforesaid provision provides for arbitral proceedings to
      be terminated by the final arbitral award. Thus, when an award is already
      made, of which execution is sought, the arbitral proceedings already
      stand terminated on the making of the final award. Thus, it is not
      appreciated how Section 42 of the said Act, which deals with the
      jurisdiction issue in respect of arbitral proceedings, would have any
B
      relevance. It does appear that the provisions of the said Code and the
      said Act have been mixed up.
             20. It is in the aforesaid context that the view adopted by the
      Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh
      Refinery Ltd.12 records that Section 42 of the Act would not apply to an
C     execution application, which is not an arbitral proceeding and that Section
      38 of the Code would apply to a decree passed by the Court, while in the
      case of an award no court has passed the decree.
             21. The Madras High Court in Kotak Mahindra Bank Ltd. v.
      Sivakama Sundari & Ors.13 referred to Section 46 of the said Code,
D     which spoke of precepts but stopped at that. In the context of the Code,
      thus, the view adopted is that the decree of a civil court is liable to be
      executed primarily by the Court, which passes the decree where an
      execution application has to be filed at the first instance. An award under
      Section 36 of the said Act, is equated to a decree of the Court for the
E     purposes of execution and only for that purpose. Thus, it was rightly
      observed that while an award passed by the arbitral tribunal is deemed
      to be a decree under Section 36 of the said Act, there was no deeming
      fiction anywhere to hold that the Court within whose jurisdiction the
      arbitral award was passed should be taken to be the Court, which passed
      the decree. The said Act actually transcends all territorial barriers.
F
               Conclusion:
             22. We are, thus, unhesitatingly of the view that the enforcement
      of an award through its execution can be filed anywhere in the country
      where such decree can be executed and there is no requirement for
G     obtaining a transfer of the decree from the Court, which would have
      jurisdiction over the arbitral proceedings.
            23. The effect of the aforesaid is that the view taken by the Madhya
      Pradesh High Court and the Himachal Pradesh High Court is held to be
      12
           supra
      13
H          supra
 SUNDARAM FINANCE LIMITED v. ABDUL SAMAD & ANR.                                465
            [SANJAY KISHAN KAUL, J.]

not good in law while the views of Delhi High Court, Kerala High Court,        A
Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab
& Haryana High Court and Karnataka High Court reflect the correct
legal position, for the reasons we have recorded aforesaid.
      24. The appeal is accordingly allowed and the impugned order
dated 20.3.2014 is set aside restoring the execution application filed by      B
the appellant before the Morena courts. The parties are left to bear their
own costs.


Ankit Gyan                                                   Appeal allowed.
                                                                               C




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                                                                               H