WIRELESS DEVELOPERS INC Vs. INDIAGAMES LTD

JUDGEMENT

(1.) The appellant has obtained an award of the Arbitral Tribunal in the USA against the respondent which it seeks to enforce and execute. The appellant took out application under Order 21 Rule 22 of the Code of Civil Procedure 1908 for obtaining leave of the Court to execute the foreign award. The parties had appeared before the Arbitrator. After the initial negotiations the respondent did not participate in the arbitration proceedings. Instead it sought to invoke arbitration separately. For the absence of the respondent despite service of notices a final award came to be passed on 7 December 2010.

(2.) The respondent sought to challenge aforesaid foreign award in a petition filed in this Court under Section 34 of the Arbitration and Conciliation Act 1996 (the Act). The petition filed in this Court was returned to the respondent for filing in the Court having jurisdiction. The respondent stated that it had sought leave under clause 12 of the Letters patent to file the petition in this Court though the cause of action had accrued at Navi Mumbai in the Thane District where the agreement between the parties was entered into and where the immovable properties of the respondent are situate. It was shown to Court that leave as claimed by the respondent was not obtained. Consequently, the Court could not exercise jurisdiction upon the respondent's own claim. The petition under Section 34 of the Act is now pending hearing before the Court at Navi Mumbai in Thane District to which it was sent.

(3.) The appellant has sought to enforce the aforesaid award on the ground that a movable property of the respondent being a bank account in ICICI Bank is within the jurisdiction of this Court and the appellant must file its execution application, as all other applications against decrees of the Court are filed, in what is known as the Executing Court which would be the Court, not where the cause of action arose, or the respondent resides or carries on business, or where the respondent may have immovable properties, but where the respondent would have the property which is sought to be attached in execution of the award. This is because only the Court within whose jurisdiction the property which is sought to be attached is situate would be able to execute a decree or an award and hence such Court would have territorial jurisdiction in an execution application.