The Supreme Court of India in a landmark judgment titled Sundaram Finance Limited v. Abdul Samad & Anr.has opened the flux that has been created by contradictory judgments of various High Courts on the issue of execution/enforcement of arbitral award in India. Before dissecting this judgment, at the outset I would like to throw some light upon the procedure to enforce an arbitral award in India. The arbitral awards are divided in two types based on the ‘seat of arbitration’. The awards rendered by an Indian seated arbitral tribunal are ‘domestic awards’ which are administered by Part I of the Arbitration & Conciliation Act, 1996 (the Act) while those delivered by foreign seated arbitral tribunal are termed as ‘foreign awards’ and are governed by provisions of Part II of the Act. The manner of enforcement of both types of awards is same.
Earlier the arbitral award was required to be made ‘rule of court’ before execution but such pre-requisite is abolished by the new Act. The member of the arbitral tribunal grants the final award. As per Section 32 of the Act, the arbitral proceedings are deemed to have been terminated after the passing of final award. Section 34 of the Act provides forum to challenge the award in court of law where challenge can be made after three months from the date the party has received the copy of award or any order, if any, passed under Section 33 of the Act making corrections in the award. This period of three months is extendable by a further period of 30 days. Under Section 36 of the Act, after the expiry of the time provided under Section 34 and if any order has been passed under Section 34, award became capable of enforcement as a decree of civil Court in India.
Since the arbitral awards are treated as a decree of a Court, the execution is carried out in the manner prescribed in the Code of Civil Procedure, 1908 (CPC) of India for execution of a decree by a Court read with the relevant provisions of the Act. The application for execution of an arbitral award can be filed within ninety days after the receipt of the award.
The provisions dealing with the jurisdiction of the Court with regard to enforcement of an arbitral award is defined in Section 42 of the Act. Section 42 of the Act inter alia says that if any application is filed in a Court with regard to Part I of the Act (i.e. the domestic award), then that Court will have the jurisdiction over “the arbitral proceedings and all subsequent applications arising out of that agreement (the arbitration agreement) and the arbitral proceedings shall be made in that court and in no other court”. To get the clear view, one must also know that the term ‘Court’ under the Act is defined in two ways. One definition of Court is that it is “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”. Whereas for the enforcement of foreign awards, the Court is defined under Section 47(2) of the Act as “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 over the subject-matter of the award 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”.
The difference in the definitions of ‘Court’ under Section 2(2) and Section 47 of the Act is that the former extends the jurisdiction of the Court over the subject matter of the arbitration whereas the latter extends the jurisdiction of the Court in case of enforcement of a foreign award over the subject matter of the arbitral award. Thus, it can be inferred that the definition of Court under Section 2(2) is wide and provides jurisdiction to such Courts on all the applications related to the ongoing subject matters related with arbitrations such as interim reliefs etc., whereas the definition of Court under Section 47 of the Act is restrictive due to the use of word ‘award’ which means that since the award has already been passed, its final and such Court do not have the jurisdiction over the award. To simplify it further, it means that an application seeking interim relief can be filed under a Court defined under Section 2(2) of the Act in domestic arbitrations but such application cannot be filed in case of foreign award before the Court defined in Section 47 of the Act since it presumes that a final arbitral award has already been passed and it does not provide such Courts to have jurisdiction over the subject matter of the foreign arbitration.
In 2017, the Bombay High Court in the case of Trammo DMCC v. Nagarjuna Fertilizers and Chemicals Limited dealt with this issue and concluded
‘that applying the definition of “Court” as provided in Section 2(1)(e)(ii) of the Act, to a post award scenario (in the above example the application seeking interim relief) in a foreign seated arbitration, would create an incongruity in enforcing the provisions of Section 9 of the Act in as much as a party would be prevented from seeking interim reliefs, while enforcing a money award, as the monies may be lying beyond the jurisdiction of the court, being the court as per Section 2(1)(e)(ii) of the Act’ i.e. the Indian Courts.
The Bombay High Court further held that since Section 2 of the Act begins with “[i]n this Part, unless the context otherwise requires”, by applying the principles of contextual interpretation, in the context where a party is holding a foreign award and where the monies/assets of the award debtor is available/located in the jurisdiction of a particular Court in India, it is inferred that in view of the definition of ‘Court’ under Section 47, that that Court would be the appropriate Court (i.e. the Indian Court) for purposes of seeking interim relief under Section 9 of the Act.
Going by this judgement, it could be inferred that even in a foreign seated arbitration, an Indian Court will have the jurisdiction to pass an interim relief. Then what is the purpose of having a foreign arbitration at all, if a domestic Court can pass an interim relief even when a final award has already been passed by a foreign seated arbitration tribunal? One can find a contrary view expressed by Madras High Court in Kotak Mahindra Bank Ltd v. Sivakama Sundari S Narayana which I have dealt in later part of this note. There the Court observed that
‘Take for instance a case where an arbitration takes place outside the country, in terms of Part II of the 1996 Act. Is it possible for an award holder to seek a Court in London to transfer the award for execution to a Court in India?’
With all due respect, I am not in concurrence with the view of the Bombay High Court in the given case since I believe that following this dictum will create severe anomalies in the legal environment of foreign arbitrations in India. Moreover, the legislature would not have intended to give different Court different jurisdictions for different stages of arbitration. Not following the express language of the Act for the reasons stated in the dictum created an even more complex situation for already much criticized role of Indian Courts in the world of international commercial arbitration.
But the question is if the ‘Court’ is already defined in the Act, then what is the relevance of Section 36of the Act which throws the ball in to the ‘Court’ defined in Section 38 of CPC for the purpose of enforcement of an arbitral award? Section 38 of CPC inter alia states that a decree can be either executed by the ‘Court which passed a decree’ it or in alternate it can be executed by the Court to which it is transferred. Even the term ‘Court which passed a decree’ has been defined in Section 37 of CPC which could be either the Court of first instance and if the Court of first instance ceases to hold the jurisdiction then in that case the Court where the original suit was filed in order to get this degree would be relevant Court for these purposes.
Further, if the assets against whom the decree (the award) has been passed are outside the jurisdiction of the Court defined in Section 38 of CPC, then such Court can take recourse of Section 39 of the CPC in order to transfer such decree to the Court within whose jurisdiction such assets are located.
The Respondent defaulted in repaying the loan to the Appellant. Therefore, a dispute arose and in order to recover the loan money arbitration was triggered. Due to non-appearance from Respondent, an ex parte arbitration award was passed by the arbitrator. The Appellant then filed execution proceedings in the Court of Morena, (district) Madhya Pradesh since they believed that an arbitral award is akin to a decree of a Court for the purposes of enforcement. The Morena Court returned the execution application stating lack of jurisdiction and further instructed to file such proceedings in an appropriate forum. The Morana Court relied on the dictum of Madhya Pradesh High Court which inter alia held that in such cases, the executioner have to first file execution proceedings in the jurisdiction of a competent court and then seek a transfer decree for such court which needs to be filed in Morana Court for execution of arbitral award in the jurisdiction of Morana Court.
Summary and Analysis of the Judgement
Based on the legal literature mentioned above, the judges of different High Courts in India were divided in two lines of opinion which are as follows:
“The transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located.”
“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 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 located.”
Which amongst the following is the relevant Court to file execution proceedings with regard to execution of an arbitral award –?
- The Court having jurisdiction over the arbitration proceedings for execution; or
- The Court where the assets of the award-debtor are located?
- If the Court having jurisdiction over the arbitration proceedings for the execution then is it a pre-requisite to seek a transfer decree from such Court to the Court in whose jurisdiction the assets of the award-debtor are located?
Let me now shed some light on different views of the different High Courts of India on the above issue as discussed by Supreme Court of India in the instant case.
The Madhya Pradesh High Court opined that since Section 37 of CPC has its own definition of ‘Court which passes the decree’ and a procedure has already been laid down under Section 39 of CPC for transfer of decree, therefore, a decree of transfer is a pre-requisite for execution of an arbitral award.
The High Court of Himachal Pradesh went one step further and in addition to relying on the proposition 1, the Court also relied on dicta of the Supreme Court of India in M/s Swastik Gases P. Ltd. v. Indian Oil Corpn. Ltd. In this case, the issue of territoriality was discussed in great details. As per the jurisdiction clause of the disputing parties in the impugned judgment, “[t]he Agreement shall be subject to jurisdiction of the courts at Kolkata.” The appellant in these case were contending that mere mention of the Courts of Kolkata in the jurisdiction clause does not puts an embargo upon the jurisdiction of other Courts to hear the present case. In appellant’s view, since part of ‘cause of action’ regarding the contract between the parties occurred in the jurisdiction of Jaipur Court, the said has the jurisdiction to entertain the application to appoint an arbitrator under Section 11 of the Act. It has also been contended that the said clause cannot be termed as ‘ouster of jurisdiction’ clause in absence of express usage of words like, ‘alone’, ‘only’ ‘exclusive’ and ‘exclusive jurisdiction’. The Supreme Court of India while deliberating upon legal maxim of the expression unius est exclusion alterius inter alia held that that expression of one submitting to the jurisdiction of one Court is the an implied exclusion of jurisdiction of another Court.
The facts of Swastik Gases P. Ltd.can be differentiated from Sundaram Finance.In Swastik Gases P. Ltd. the application was under Section 11 of the Act for the appointment of an Arbitrator. It means that the process of arbitration was yet to start whereas in the case Sundaram Finance the arbitration proceedings have already been commenced and the final award was at the stage of execution. The Court considered Section 32 of the Act which has been neglected by the Madhya Pradesh High and the High Court of Himachal. Section 32 deals with the termination of arbitration proceedings.
The Supreme Court made an observation that the provisions of the Act and CPC have been confused. As per Section 32, as soon the as the final arbitral award has been made, ‘the arbitration proceedings’ stands terminated. So Section 42 of the Act won’t come into picture since the said section is based on the footing of active ‘arbitral proceedings’ and all applications arising out of the arbitration agreement.
But what about a situation where an award is challenged by an application to set aside under Section 34 of the Act? Will it be appropriate to call such award as final and thus enforceable in India?
It would be fruitful to mention a recent judgement rendered by the National Company Law Tribunal of India (the NCLT) in M/s Ksheeraabd Constructions Private Limited v. M/s Vijay Nirman Company Private Limited which answers the above question. In this case, it was contended by the appellants that if an arbitral award is challenged under section 34 of the Act then it cannot be termed as a ‘decree’, till it is enforceable before it is final.
Further, an arbitral award can only be made enforceable as a decree of the Court after the prescribed time to make an application to set aside the award under Section 34 has been lapsed. Meaning thereby it is safe to presume that the appellant in this case inter alia contended that an arbitral award is not final pending an application to set aside an award and hence it cannot be enforced as a decree of a Court.
The NCLT held that
‘….it is true that under Section 36 of the Arbitration and Conciliation Act, 1996, an Arbitral Award is executable as a decree. It can be enforced only after the time for filing the application under Section 34 (which is an application to set aside an award) has expired and/or, if no application is made or such application having been made has been rejected. Therefore, for the purpose of Arbitration and Conciliation Act, 1996, an Arbitral Award reaches its finality after expiry of enforcement time or if the application under Section 34 is filed and rejected.’
The Delhi High Court came up with a very interesting reasoning. It relied on another Supreme Court ruling of Rodemadan India Ltd v. International Trade Expo Centre Limited. In this case, the Court relied on purposive interpretation of the Act while applying the definition of ‘Court’. The issue was regarding the appointment of an arbitrator under Section 11 of the Act which is a pre-award application. Section 11 empowers ‘the Chief Justice or the person or institution designated by him’ to appoint an arbitrator in case the party fails to appoint an arbitrator or the two appointed arbitrator fails to appoint a third arbitrator. The Court relied on another landmark judgement on commercial arbitration in India which held as under
‘The framers of the statute must certainly be taken to have been conscious of the definition of “court” in the Act. It is easily possible to contemplate that they did not want the power under Section 11 to be conferred on the District Court or the High Court exercising original jurisdiction. The intention apparently was to confer the power on the highest judicial authority in the State and in the country, on the Chief Justices of the High Courts and on the Chief Justice of India.”
Thus, the Delhi High Court concluded that the words “…all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court” in Section 42 of the Act would not include application to execute an arbitral award. In other words, the execution proceedings cannot be termed as ‘arbitral proceedings’ within the meaning of Section 42 of the Act. The Rajasthan High Court and Punjab & Haryana High Court followed this dictum of Delhi High Court in Kotak Mahindra Bank Ltd. v. Ram Sharan Gurjar & Anr and Indusind Bank Ltd. v. Bhullar Transport Company respectively.
The Kerala High Court dealt with a transfer of decree in execution of an arbitral award. In this case, after the final award has been passed, the arbitration proceedings were transferred from one District Court to another for execution. The transferee Court asked the award creditor to pay an additional stamp duty for enforcement of an award in terms of Kerala Court stamp duty Act. The Kerala High Court upheld the contention of the petitioners that the transferee Court is only an executing court which cannot go beyond the decree and therefore, such court cannot insist for payment of additional stamp duty. The Court was of the view that the transferee 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 Madras High Court deliberating on the issue remarked on this misunderstood practice of transferring the decree to an executing court and observed as under:
‘It appears that the practice of filing execution petitions (arising out of arbitral awards) in one court and seeking their transmission to other courts, has caught up with the community of lawyers, on account of a misconception that the court within whose jurisdiction the Arbitral proceedings took place and the award passed, is the court which passed the decree. If the arbitral proceedings had taken place in Chennai and the judgment debtor resides or carries on business in Bangalore, the execution is laid in the court at Chennai with a request to transmit it to Bangalore, on a misconception that the Chennai court is to be taken to be the court which passed the decree. But there is no basis in law for such a presumption.’
The Madras High Court inter alia held that there is no express provision in the Act which necessitates a Court to pass a decree in order to give effect to an arbitral award since an arbitral award is in itself a deemed decree (except in Section 34 of the Act which is an application to set aside an arbitral award). There is also no provision in the Act which deems Arbitral Tribunal as ‘Court’ which passed the decree (i.e. the arbitral award) neither there exists any provision in the Act which states that the Court within whose jurisdiction an award was passed can be termed as the ‘Court’ which passed the decree. In light of all three of the above observations, the Court in which the execution of an arbitral award is passed cannot demand transfer order from any other Court and neither it can transfer it to any other Court with regard to the execution of an arbitral award.  The Madras High Court further observed that the Act transcends all territorial barriers and therefore it is the party’s autonomy to choose the forum for filing execution proceedings.
One important point which has not been brought up till now by any High Court and the Supreme Court is Section 19 of the Act. The Allahabad High Court noted that
‘Section 19 of the Act provides that the arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (V of 1908) or the Indian Evidence Act, 1872 (1 of 1872) and the parties are free to agree on the procedure.’
Since an arbitrator is not bound by CPC, the Allahabad High Court concluded that an arbitrator is not a ‘Court’ although the arbitral award is a deemed decree. And since an Arbitrator is not a Court, Section 38 and Section 39 of CPC which talks about ‘executing court’ and ‘transfer of decree’ respectively shall have no application on the award passed by an arbitrator. The Allahabad High Court thus concluded that
‘Position thus emerges is that an award can be filed in any court for execution as a decree of civil court where judgment-debtor resides or carries on business or has property within the jurisdiction of the said court. Execution court cannot refuse to entertain the application on the ground that decree holder should first file the application for execution at a place where arbitration award was given and then seek transfer from the said court to any other court.’
The Karnataka High Court while addressing the issue of transfer and execution of an arbitral award held that an arbitral award is not a decree of the Court and hence there is no question of filing execution proceedings before the Court which passed the decree and consequently there is also no question of seeking transfer of such decree to another Court within who’s jurisdiction the assets of the award debtors are located.
The Supreme Court after mentioning Section 37, 38 and 39 of CPC made a remark on Section 46 of CPC which was skipped by all the High Courts above. Section 46 deals with percepts. As per the Law Dictionary, a percept is “[a]n order or direction, emanating from authority, to an officer or body of officers, commanding him or them to do some act within the scope of their powers”. Section 42 deals with a situation where a judgement creditor wants to execute a decree in some another competent Court which is different from the Court which actually passed the decree. In that case, the judgement creditor or the decree holder can file an application ‘in the Court which passed the decree’ to issue a percept to such other competent Court of applicant’s choice. This process usually occurs when the property of a judgement debtor are located in the territorial jurisdiction of another Court and not within the Court which passed the decree. The concept of percepts is somewhat similar to the scheme which has been followed by some of the High Courts mentioned above in mandating the filing of transfer proceedings in order to execute an arbitral awards.
As noted above, such application of percept needs to be made ‘the Court which passed the decree’ whereas in the case of arbitral award it is not a decree per se rather the award itself is executed as a decree due the provisions of the Act. Taking this view, the Supreme Court in some way concurred with the view of the Karnataka High Court that an arbitral award is not a decree.
With regard to the enforcement of an arbitral award, the Supreme Court interpreted Section 36 of the Act and inter alia held that it is only the enforcement mechanism of an arbitral award that is akin to enforcement of a decree otherwise it cannot be held that an arbitral award is at parity with a decree of a Court since it has not been passed by a Court. It has been passed by an arbitral tribunal which is not empowered to grant execution of its award.
The Supreme Court also noted that the conjoint reading of Section 2(e) and Section 42 of the Act makes it clear that the application related with ‘arbitral proceedings’ mentioned in Section 42 needs to be filed in ‘Court’ defined in Section 2(e). But what has been lost sight is Section 32 which states about the termination of ‘arbitral proceedings’ once the final award is rendered by the arbitral tribunal. Therefore, the bridge between Section 2(e) and Section 42 is broken by Section 32 of the Act. Therefore, the Supreme Court confirmed the view taken by the Delhi High Court and held that it is the Court defined in Section 38 of CPC that would be relevant Court for the purpose of filing execution proceedings of an arbitral award.
The Court further appreciated the position of Madras High Court which held that there is no provision in the Act which states that the Court within whose jurisdiction an award was passed should be termed as the ‘Court’ which passed the decree and therefore, the Act transcends all territorial barriers.
The Court concluded that execution and enforcement proceedings regarding an arbitral award can be filed in any Court of India where such decree can be executed and there is no pre-requisite to obtain a transfer decree from the Court which would have jurisdiction over the arbitral proceedings.
Sundaram Finance Limited v Abdul Samad & Anr  Supreme Court of India (Supreme Court of India).
 Section 36 read with Section 49 of the Act
 Section 31 of the Act
 Section 36 provides for enforcement of the arbitral award as though it were a decree of the court, and a party is entitled to enforce the arbitral award, when the time for making an application to set aside the arbitral award had expired or such application having been made, had been refused.
 Section 38 of the Code
 Section 9(2) of the Arbitration and Conciliation (Amendment) Act, 2015
 e.g. an application under Section 34 of the Act for setting aside arbitral award
 Section 2(e) of the Act
 Section 47(2) of the Act
 This is just an example. Such application can be any pre-award application say for example appointment of an arbitrator by the Court in case the parties fail to appoint an arbitrator
 In this example it is the interim relief
 Commercial Arbitration Petition (Lodg) No. 359 of 2017
 Ibid Page 10
 Ibid Page 27
 (2011) 4 LW 745
 Ibid Para 23
 36. Enforcement. –
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.
 38. Court by which decree may be executed.
A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.
 37. Definition of Court which passed a decree.
The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.
 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 1[of competent jurisdiction],-
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the 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 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 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 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.
 In this case, it was held that the Competent Court is the Court within whose jurisdiction an arbitral award is passed
 Supra Note 1 Page 4
 Supra Note 1 Page 6
 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
 JT 2013 (10) SC 35
 Supra Note 1
 Supra Note 1
 32. Termination of proceedings.—
(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 ofthe arbitral proceedings where—
(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
(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.
 Company Appeal (AT) (Insolvency) No. 167 of 2017
 Ibid Page 9
 (2006) 11 SCC 651
 SBP & Co. v. Patel Engineering Ltd (2005) 8 SCC 618
Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd., 2009 159 DLT 579
 (2012) 1 RLW 960
 Civil Revision No. 7592 of 2010, Punjab and Haryana High Court
 2011 (4) KLJ 408
 Kerala Stamp Act, 1959
 Supra Note 1 Page 7
 Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (2011) 4 LW 745
 Ibid Para 25
 Ibid Para 23
 GE Money Financial Services Ltd. v. Mohd. Azaz & Anr. (2013) 100 ALR 766
 Chandrasekhar v. Tata Motors Finance Ltd. and others (2014(4) KCCR 3397)