1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO .9546 OF 2009 M/s Khan Pharmaceuticals. .. Petitioner versus Vipul Drugs Pvt Limited. .. Respondents ......... Mr.N.B.Shah i/b Mr.Piyush Shah , for Petitioner Mr.R.B.Howal ,for Respondents ......... CORAM :Abhay S. Oka, J. JUDGMENT RESERVED ON : 5TH FEBRUARY, 2010 JUDGMENT PRONOUNCED ON : 15TH FEBRUARY, 2010 JUDGMENT : 1. By this Writ Petition under article 227 of the constitution of India, the petitioner has challenged the Judgment and order dated 1st October 2009 passed by the learned Civil Judge (Senior Division) at Vasai. The Arbitration Bench of Bulk Drugs and Allied Dealers Association made an award dated 22nd December 2006 in favour of the respondents directing the petitioner to pay a sum of Rs.1,19,002/- being the price of the goods as per the invoice submitted by the respondents. By the said award, the petitioner was also directed to pay interest at the rate of 18% per annum on the said amount from the date of the invoice. The said award was sought to be executed by filing an execution application under section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Act") in the Court of the Civil Judge (Senior Division) at Vasai. 2 2. In the said execution application, an application at exhibit 16 was made by the petitioner raising various objections. By the impugned judgment and order , the said application has been rejected. 3. The learned counsel appearing for the petitioner has drawn my attention to the findings recorded by the trial Court in the impugned order. He submitted that the learned Trial Judge has not considered the objections raised by the petitioner on merits on the ground that a certificate has been issued under clauses (b) and (c) of rule 6 of Order XXI of the Code of Civil Procedure , 1908 (hereinafter referred to as “ the said Code”) by the Prothonotary and Senior Master of this Court. He submitted that the objections raised by the petitioner could not have been rejected only on the ground that the said certificate has been issued. He submitted that notwithstanding the said certificate, the Court to which the award is transferred for execution has jurisdiction to consider the objection that the award was nullity. He submitted that the petitioner was neither a party to the alleged arbitration agreement nor was a party to the arbitration proceedings. He submitted that the award sought to be executed is not tenable in law. He submitted that as the award was invalid, the execution was not maintainable. 4. I have given careful consideration to the submissions. It is true that only on the basis of a certificate issued under rule 6 of Order XXI of the said Code, the executing court could not have held that the award was capable of being executed. 3 However, that is not the only finding recorded by the learned trial Judge. The Learned Judge has also observed that he has no jurisdiction to decide the issue of legality of the award. 5. It will be necessary to consider the averments made in the application at Exhibit 16. It is contended that the petitioner is not a party to the arbitration agreement. It is alleged that the petitioner was not a party to the arbitration proceedings. It is submitted that there is no valid reference made to the arbitration and the petitioner has not taken part in the arbitration proceedings. In fact, perusal of the averments made in the application at Exhibit 16 show that it is not even pleaded that the award is nullity or is null and void. The challenge in the application is essentially to the legality of the award. The challenge is to the reference made to the arbitration. Taking the averments made in the said application as it is, in substance, the challenge by the petitioner in the said application is to the legality of the award. Under section 36 of the said Act, an Award is executable as if it is a decree passed by the Court. The objections raised to an award under execution will have to be considered in the light of the provisions of section 47 of the said Code. Under section 47 of the said Code, the executing court cannot go behind the decree. The executing court cannot go into the question of legality of the decree. The said Court can consider the question whether the decree sought to be executed is a nullity. If the executing court ventures to consider the legality of the decree, it will amount to going behind the decree. As pointed out earlier, it is not even the case made out in the application at Exhibit 16 that the award is null and void or that it is without 4 jurisdiction. The objection regarding illegality is not necessarily an objection as to inherent jurisdiction of the arbitrators. That is why there is an observation made by the trial Court that an executing Court cannot go behind the award. The grounds pleaded in application at Exhibit 16, at highest, could have been pleaded or urged in appropriate proceedings for challenging the award on merits. Therefore, the learned judge was right in rejecting the application made by the petitioner in as much as while executing the award he could not have decided the question of the legality of the award. 6. Hence there is no merit in the writ petition and the same is accordingly rejected. Judge After pronouncement of the judgment, the learned Counsel appearing for the Petitioner prays for continuation of ad-interim relief dated 16th November, 2009. Accordingly, it is directed that the ad-interim relief granted by this Court will continue to operate for a period of eight weeks from today. Judge