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2016 (12) TMI 626 - HC - Indian LawsApplication filed under Section 47 (Part II) of the Arbitration and Conciliation Act, 1996 for enforcement of the foreign arbitration award dismissed - whether the District Court would cease to have jurisdiction to proceed with the execution of the foreign arbitration awards, after coming into force of the Explanation to Section 47 by way of the Amended Ordinance-2015 and the execution pending before the District Judge has to be filed in the High Court? - Held that - There is no dispute that in the execution application filed by the petitioner, the District Judge, Gurgaon had the jurisdiction in terms of the un-amended Explanation to Section 47 of the Act but during the pendency of the execution, with the amendment in the Explanation to Section 47 of the Act, the forum for the purpose of execution of the foreign arbitration award was changed from the principal Civil Court of original jurisdiction to the High Court. In view of the decision of the Supreme Court in Dhadi Sahu s case (1992 (11) TMI 2 - SUPREME Court ) wherein held that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets jurisdiction to try them, it can safely be held that the impugned order passed by the Additional District Judge, Gurgaon, is illegal.Consequently, the present writ petition is hereby allowed and the impugned order dated 14.12.2015 passed by the Additional District Judge, Gurgaon, is set aside.
Issues Involved:
1. Jurisdiction for enforcement of foreign arbitration awards under Section 47 of the Arbitration and Conciliation Act, 1996. 2. Impact of the Arbitration and Conciliation (Amendment) Ordinance, 2015 on pending execution applications. 3. Applicability of Supreme Court judgments in determining jurisdiction and procedural changes. Detailed Analysis: 1. Jurisdiction for enforcement of foreign arbitration awards under Section 47 of the Arbitration and Conciliation Act, 1996: The petition challenges the order dated 14.12.2015 which dismissed an application filed under Section 47 (Part II) of the Arbitration and Conciliation Act, 1996 for enforcement of foreign arbitration awards dated 27.10.2014 and 15.12.2014. The central issue is whether the term "Court" in Section 47 refers to the principal Civil Court of original jurisdiction in a district or the High Court, especially after the amendment introduced by the Arbitration and Conciliation (Amendment) Ordinance, 2015. 2. Impact of the Arbitration and Conciliation (Amendment) Ordinance, 2015 on pending execution applications: The petitioner initially filed the execution application before the District Judge, Gurgaon, which was valid under the un-amended Section 47. However, the Amended Ordinance-2015, effective from 23.10.2015, altered the jurisdiction, conferring it upon the High Court. Respondent No.2 argued that the District Court no longer had jurisdiction due to this amendment, leading to the dismissal of the execution application by the Additional District Judge, Gurgaon. 3. Applicability of Supreme Court judgments in determining jurisdiction and procedural changes: The petitioner cited the Supreme Court decision in Commissioner of Income Tax, Orissa vs. Dhadi Sahu, 1994 Supp (1) Supreme Court Cases 257, to argue that changes in forum do not affect pending actions unless explicitly stated. The Court examined the facts of Dhadi Sahu's case, which dealt with the jurisdiction of the Inspecting Assistant Commissioner under the Income Tax Act before and after an amendment. The Supreme Court held that pending proceedings should continue in the original forum unless the new law explicitly states otherwise. In contrast, the Additional District Judge, Gurgaon, relied on the Supreme Court's decision in Sudhir G. Angur and others vs. M. Sanjeev and others, (2006) 1 Supreme Court Cases 141, which dealt with procedural aspects under the Code of Civil Procedure. However, the High Court found this judgment inapplicable to the present case. Conclusion: The High Court concluded that the principle established in Dhadi Sahu's case applies, meaning the change in jurisdiction introduced by the Amended Ordinance-2015 does not retroactively affect pending execution applications. Thus, the impugned order by the Additional District Judge, Gurgaon, was deemed illegal. Consequently, the writ petition was allowed, and the order dated 14.12.2015 was set aside.
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