Award Holder Has The Choice To File An Execution Petition At The Place Of His Choice: Allahabad High Court Reiterates

The bench of Justice Pankaj Bhatia also held that merely because Section 16 of the Commercial Courts Act which provides for amendment to CPC does not include Order 21 within the amended provisions, it would not mean that the Commercial Court would not have the inherent jurisdiction to execute an arbitral award. It held that words ‘applications’ under Section 10(3) of the Commercial Courts Act would include the application for execution of the arbitral award in terms of Section 36 of the A&C Act.

Facts

The arbitral award arose out of an agreement executed between the parties. Pursuant to the execution of the agreement, a dispute arose between the parties. Accordingly, the parties were relegated to arbitration by the Court and the tribunal passed the award in favour of the respondent, who was the claimant before the tribunal.

Thereafter, the respondent filed an application under Section 36 of the A&C Act before the Commercial Court at Lucknow for the execution of the award. Next, the petitioner filed its objection to the maintainability of the application before the Commercial Court. The ld. Commercial Court rejected the objections raised by the petitioner. Aggrieved thereby, the petitioner challenged the order under Article 227 of the Constitution of India.

Grounds of Challenge

The petitioner challenged the order on the following grounds:

• The Commercial Court at Lucknow lacks inherent jurisdiction and fell in error in entertaining the execution petition as Section 10(3) of the Commercial Courts Act that provides for the jurisdiction of Commercial Courts to decide arbitration disputes does not include execution petition as once the award is delivered, the proceedings stand terminated under Section 32 of the A&C Act and it is only the applications that arise during the arbitration which are included under Section 10(3) of the Commercial Couts Act.
• Further, Section 16 of the Commercial Courts Act which amends the provisions of CPC does not include Order 21 of CPC which is a clear indicator of legislative intent to not include execution petitions within the ambit of commercial courts.
• That the Court also lacked the territorial jurisdiction as the relief granted under the award can only be granted by the Court where the retail outlet of the petitioner is located and not the Court at Lucknow.

Analysis by the Court

The Court rejected both the grounds raised by the petitioner to challenge the finding of the Commercial Court. It held that Commercial Court constituted under The Commercial Courts Act, 2015 can hear and decide the execution proceedings arising out of an award passed under the Arbitration and Conciliation Act, 1996.

The Court held that it is the choice of the award holder to file an execution petition at the place of its choice and it need not necessarily approach the Court where the award was passed.

The Court also held that merely because Section 16 of the Commercial Courts Act which provides for amendment to CPC does not include Order 21 within the amended provisions, it would not mean that the Commercial Court would not have the inherent jurisdiction to execute an arbitral award. It held that words ‘applications’ under Section 10(3) of the Commercial Courts Act would include the application for execution of the arbitral award in terms of Section 36 of the A&C Act.

Accordingly, the Court dismissed the petition.

Case Title: Bharat Petroleum Corporation Ltd v. Anoop Kumar Modi, Matters under Article 227 No. 2704 of 2023

Neutral Citation: 2023:AHC-LKO: 68875

Counsel for the Petitioner: SM Singh Royekwar

Counsel for the Respondent: Girish Chandra Sinha

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