TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 2839
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.... also one of the petitioners in C.W.J.C. No. 10417 of 2012. 3. The petitioner is grieved by the order dated 07.09.2012 passed in Misc. Case No. 19 of 2012 arising out of the Execution Case No. 41 of 2011 whereby the learned court below has dismissed the petition filed by the petitioner along with the two more persons under Section 47 of the Code of Civil Procedure praying for setting aside the award under execution in Execution Case No. 41 of 2011. 4. The present application has been filed under Article 226 and 227 of the Constitution of India and the preliminary objection has been raised by the learned senior counsel for the respondent No. 1 regarding the maintainability of this application under Article 226 of the Constitution of India putting emphasis on the relief prayed in the present application and also the status of the parties impleaded as respondents herein. The reliefs sought by the petitioner in the present application have been specifically mentioned in paragraph 3 as follows:-- "(a) Issuance of writ in the nature of certiorari quashing the order dated 07.09.2012 passed by the Sub Judge-1, Patna in Misc. Case No. 19 of 2012 in course of Execution Case No. 41 of 201....
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.... present application can be accepted only as an application under Article 227 of the Constitution of India invoking supervisory jurisdiction of this Court and not under Article 226 of the Constitution of India invoking extraordinary writ jurisdiction of this Court. This Court, therefore, proceeds accordingly to adjudicate upon the grievances of the petitioner. 7. The relevant factual matrix, as apparent from the pleadings of the parties and their rival submissions, disclose that the respondent No. 2 Baptist Church Trust Association (hereinafter referred to as 'B.C.T.A.') had entered into a registered development agreement on 18.10.1995 with respondent No. 1 A.B.M. developers for land admeasuring 43 katha 7 dhur of plot Nos. 866 and 261. However, as B.C.T.A. subsequently revoked the said development agreement, the respondent No. 1 A.B.M. developers filed Request Case No. 22 of 2002 before the High Court for appointment of arbitrator in pursuance to the arbitration clause in the development agreement. By order dated 07.05.2004, this Court appointed an arbitrator who after hearing the parties had passed the award on 03.07.2007 upholding the validity of the development agreeme....
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.... is inherently enforceable in view of the provision of the Act 1996. 11. Mr. Choubey, the learned senior counsel for the petitioner, in his pyramidal submissions, has dwelt at length upon the evolution of the Baptist cult, establishment of Baptist Missionary Society (B.M.S.) for preaching and spreading the religion, the acquisition of the property by the said Society for developing infrastructure for the purpose of promotion of religion, charity and education and finally the constitution of Baptist Church Trust Association (B.C.T.A.) as a company for the purpose of management and protection of the properties of the B.M.S. The converging point of the submissions, however, has been that the B.C.T.A. has the status of being a trustee or agent of the B.M.S. and has/had no power or jurisdiction to sell or alienate or create any third party right and interest in the property of the B.M.S. and any such alienation or creation of 3rd party interest in the property of the B.M.S. by the B.C.T.A. is fettered by fraud on its power and in violation of its duties being in a fiduciary character. It has been propounded therefore that any such transaction by the B.C.T.A. including the development a....
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....minimize the supervisory role of courts in the arbitral process and encourage resolution of dispute by alternative mode by providing fair and efficient and elaborate procedure is manifest. It has, thus, been argued that the learned court below after taking notice of the various provisions of the Act 1996 has rightly declined to entertain the objection raised by the petitioner. Placing the averments made in the pleadings and Annexures thereto, it has been submitted that the petitioner and some of his associates are in the habits of raising objection with malafide intention to disrupt the smooth management of the property and the function of B.C.T.A. and have so far remained unsuccessful. The learned senior counsel has also pointed out that the petitioner had earlier also unsuccessfully raised the question of validity of another transaction of the property (the present property in dispute being part of the same block of land) by B.C.T.A. by filing writ application and thereafter title suits. It has, however, been submitted that at present also the T.S. No. 520 of 2007 has been filed challenging the development agreement dated 18.10.1995 and also the order under Section 34 of the Act ....
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.... 1996. At this juncture, the petitioner filed objection under Section 47 of the Civil Procedure Code, instituted as Misc. Case No. 19 of 2012, praying for setting aside the award on the ground that the respondent No. 2 B.C.T.A. had fraudulently and collusively executed the development agreement with regard to the property of the Baptist Missionary Society and therefore the sale was a nullity and consequently the award upholding the said development agreement is also a nullity. The submission on behalf of the petitioner is that the power of a court is referable to the actual power and mention of a particular provision in the petition would not restrict the executing court from exercising its jurisdiction in the interest of justice under the other provisions including Order 21 Rule 97, 99(2) and 101 C.P.C but in the present case, the learned court below has committed error of jurisdiction in dismissing the petition filed by the petitioner on the ground that such objection is not permissible in law. 15. There is no dispute on the above proposition of law that the power of the court is referable to its actual power but in view of the conclusion by learned court as apparent from the im....
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....ecree by the court". The extent of this deeming fiction came up for consideration before the apex court in the case of Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 SCC 322 wherein it has been ruled as follows: "21. The words 'Court', 'adjudication' and 'suit' conclusively show that only a Court can pass a decree and that too only in suit commenced by a plaint and after adjudication of a dispute by a judgment pronounced by the Court. It is obvious that an arbitrator is not a Court, arbitration is not adjudication and, therefore, an award is not a decree. 23. The words 'decision' and 'Civil Court' unambiguously rule out an award by arbitrators. 28. It is settled by decisions of this Court that the words 'as if in fact show the distinction between two things and such words are used for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. 42. The words "as if" demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes....
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....ion, the Arbitration and Conciliation Act 1996, which consolidates, amends, and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it " a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done". In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded " (emphasis supplied) 19. The inevitable conclusion which follows in view of the aforesaid authoritative enunciations of law is that a proceeding before the civil court under Section 36 of the Act 1996 for the enforcement of an arbitral award is a proceeding under the said Act and not a proceeding under the Civil Procedure Code. As a necessary corollary, the resort to the provisio....