IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.708 of 2009 M/S MUKTA ARTS LIMITED, Mumbai, a duly registered Company under the provisions of Company‟s Act having its registered office at 6,Bashiron, 27th Road, Bandra, Mumbai-400050 … … Petitioner Versus M/S ANKIT FILMS, Patna, a proprietorship Firm of Sri Anand Kumar Saraogi Office at 403, Hari Om Compolex, New Dak Bungalow Road, P.S.Gandhi Maidan, District Patna … … Opp. Party For the petitioner: Shri Dhirendra Kumar Jha Shri Sarvesh Chandra Verma For the Opp. Party: Shri Jashavir Sigh Arora Shri Ajay Kumar” Ajay” Shri Ravi Bhalia ----------- O R D E R The present revision petition has been filed by the petitioner Company, which was directed by the Arbitrator appointed under Arbitration Rules of Bihar Motion Pictures Association to pay to the opposite party a sum of Rs. Five lacs. 2. There was some dispute between M/s Ankit Films, Patna and M/s Mukta Arts Limited, Mumbai on pre-mature telecast of a particular film as it does not appear denied that the terms of contract indicted that the film was never to be telecast pre-maturely and within five years of its release. It is not disputed that the film was telecast on a 2 particular satellite channel before it was released for being shown in different Cinema Halls and, as such, M/s Ankit Films, Patna, i.e., opposite party herein, presented its dispute to the Arbitrators who were already existing under the Rules of Arbitration of the Bihar and Jharkhand Motion Pictures Association. 3. By an award dated 25.6.2007 the arbitrators held that the petitioner had breached the terms of contract by permitting the telecast of the film on a particular satellite channel and that caused a loss of business to the opposite party and directed the present petitioner to pay to the opposite party a sum of Rs. 5,00,000/- (five lacs) within ninety days from the above date of award. 4. Undisputedly, the award was put to execution after expiry of three months time as mandated by Section 34 of the Arbitration and Conciliation Act, 1996(hereinafter referred to as the Act). The petitioner appeared in Execution Case No. 12 of 2008, instituted before the Sub-ordinate 3 Judge I, Patna, and filed a preliminary objection about its maintainability and sought an order of dismissal of the execution case. The Sub-ordinate Judge I, Patna after noticing arguments of the parties and the relevant provisions of the Act as also after perusing the decisions cited before him, dismissed the objection raised through two petitions and directed the continuance of the execution proceedings. The above order dated 20.3.2009 is being challenged in the present revision petition. 5. Shri Dhirendra Kumar Jha, learned counsel appearing for the petitioner has submitted that the award could not be put to execution because the Arbitral Rules of Bihar Motion Pictures Association had the provisions of appeal and revision if any party was aggrieved by the award passed by the arbitrators and, as such, a special provision was already there and the registration of the execution case appears not supportable under law. It was contended that there was no contract for referring the dispute to an arbitrator between the parties 4 and in the above view also the award was not final which could be put to execution. Even under the scheme of the Act, the award, Annexure E to the counter affidavit filed on 19.5.2009, could not be held to be such and, therefore, the provisions of the Act could not be resorted to for enforcing the decision of the arbitrators. 6. The learned counsel appearing for the opposite party has resisted the above submissions and has submitted that there was an arbitral clause in the Rules stated above and accordingly the dispute was referred by the opposite party to the arbitrators as per the Rules and the petitioner had appeared and raised its objections which were duly noted and thereafter the finding was recorded on breach of contract and causing loss of business on account of pre-mature screening of the film on a particular satellite channel. Learned counsel has referred to different provisions of the Act and submitted that the very Arbitration Rules of Bihar Motion Pictures Association could be treated 5 as terms of agreement between the parties under the scheme of Section 2 of the Act and it was fit to be enforced as the decree of a civil court if no objection was raised by the other side within three months of the receipt of the copy of the award by it as provided by Section 34 of the Act and, as such, the award became a decree to be enforced as if it had been passed by a civil court. 7. The Arbitration and Conciliation Act, 1996 was passed by the Parliament with a view to doing way with the earlier acts on the subject of arbitration as also to minimize the supervisory role of the court in the arbitral proceedings. The further aim and object of passing the Act was that there should be an uniformity in law in all domestic arbitrations and conciliations with quite some amount of fairness, efficiency as also to meet the needs of specific arbitration. The other aim of the act was to create provisions so as to giving finality to the arbitral authorities so as to curtailing the judicial lethargy and unnecessary interference and interruption in settlement 6 of any domestic disputes of commercial nature, if there was an agreement to that effect and even in absence thereof. The broad canvass upon which the provisions were cast could be appreciated by the fact that in absence of any written agreement the correspondences earlier entered into by the parties in respect of the dispute existing between them could be looked into so as to infer as to what could be the agreement for setting down the terms of reference to an arbitrator. The parties have been granted freedom to prescribe their own rules of arbitration and the arbitrators have the freedom of prescribing the procedure of the arbitral proceedings but within all reasonableness and fairness. 8. If one could peruse some of the provisions of the Act, like, Section 2, one could come across the provision of Section 2(4) under sub-head “ scope” in Part I, Chapter I and one could find that irrespective of there being no mention or there being no clause of any agreement speaking about arbitration as per the 7 procedure of Arbitration and Conciliation Act, the arbitration under any other enactment which could for the time being in force could be deemed to be the arbitration agreement between the parties to dispute under the Act and it shall further be deemed that it was under an arbitration agreement so much so as if other enactment was itself the arbitral agreement except in so far as any provision of Part I could be inconsistent with that of the enactment or any rules made thereunder so as to eliminating the supervisory powers of the Court. To ensure the arbitration provisions under the Act worked properly, a specific provision under Section 19 of the Act was inserted which completely eliminated the application of the Code of Civil Procedure,1908, as also the provisions of the Indian Evidence Act except that while enforcing the award which had assumed finality as per Section 34 of the Act, the part of the C.P.C. on execution may be applicable. 9. Thus, what appears from the provisions of Section 2(4) and(5) is that 8 even if there was no written agreement between the parties, the arbitration could have been held in the light of any provision of any other enactment for the time being in force, the award passed by the arbitrators could be treated to be an award passed under the Act and, as such, all the conditions which could be attached to the passing of the award as also the same taking a final shape could be attached to it. The Act may not be affecting the provisions of appeal and revision as could be appearing in the Arbitration Rules of Bihar Motion Pictures Association but as regards its finality and its enforcement the provision of the Act has always to be read and applied. 10. The above takes care of the first and foremost attack set up by the learned counsel for the petitioner against the award itself. The Rules of arbitration framed by the Bihar Motion Pictures Association has an arbitration clause. This position was not disputed before me. Under the said clause differing and disputing parties could refer their disputes to the 9 arbitrators who are none else than the Executive Committee of the Association. Annexure-E to counter affidavit filed by the opposite party indicates that the opposite party referred the dispute on breach of contract to the already existing set of arbitrators. On perusal of the same Annexure- E, it is clear that the petitioner had submitted to that arbitration proceedings and had never raised that the orders of arbitration were not binding upon it or that it had any objection to the arbitral proceedings. Rules under which the arbitration was held and the award was passed as per Section 2(4) of the Act have to be deemed as terms of agreement between the parties and, as such, the very arbitration and the award passed by the arbitrators shall have to be deemed to be held and passed as per the provisions of the act. 11. Section 34 of the Act contains the provision for filing an application for setting aside an award. Sub-section(3) of Section 34 indicates that the application for setting aside the award must not be made 10 after three months of the date on which the party making the application had received the copy of the award or if request has been made under Section 33 of the Act, from the date that request was disposed of in the arbitral proceedings. This provision sets down the timeframe of three months in either of the cases as indicated above by Sections 33 and 34(3) by filing an application for setting aside the award. The grounds on which the application could be made is also set down by the very provision and one cannot go beyond that. It may be indicated that in some special cases as provided by the provision of Section 34(3), the period of three months may be extended by further period of thirty days but not thereafter if the applicant shows that he was prevented by sufficient cause from making the application within the prescribed period of three months. Section 36 indicates that on expiry of the above noted period of three months for filing an application for setting aside an award, the award becomes final and, as such, becomes enforceable as if it were a decree of a 11 court. What follows from the provision of Section 34 is that as soon as the period of three months is over, the award becomes a decree and it could be enforced on any day. In other words, if an aggrieved party does not file any objection in the light of Section 34 of the Act before the court seeking the award to be set aside then the period of three months as set down by that particular provision, cannot be extended and no other law even the limitation Act could be applicable to it. This view gets support from the Supreme Court decision in Union of India Vs. Popular Construction Co. reported in (2001) 8 SCC 470. It is also to be noted that the „Court‟ has always to be the principal civil court of the district as defined by Section 2(1)(e) of the Act. 12. It is not disputed that the award was received by the petitioner on 25.3.2007, the day on which it was passed. It could have been the pleasure of the petitioner to file an application seeking setting aside of the award before the court within the statutory period of three months 12 or even within a further period of thirty days on expiry of that particular period of three months on showing to the court to its satisfaction that the petitioner was prevented by some circumstances out of his control to present the application. It is not disputed that the petitioner did not do it. 13. The execution case was filed in 2008, i.e., many months more than statutory period of three months as set down by Section 34 of the Act. The day the award had become old by three months from the date of its receipt by the petitioner, it had taken the shape of a decree which was fit to be enforced under the C.P.C. As such, it was too late for the petitioner to raise objection and its very maintainability on the ground that it was not an award. 14. I have already discussed that an award passed in terms of any other Rules or provision of any other enactment for the time being in force has to be deemed to be an award under the Act as appears indicated by Section 2(4) of the Act. The import and effect of the provisions of the Act may be 13 appreciated from this fact also that the provision of any other enactment under which the award had been passed could be treated as terms of agreement between the parties. The petitioner cannot take a stand that award which was put to execution in Execution Case NO.12 of 2008 before Sub-ordinate Judge I, Patna was not an award. The statutory provisions of appeal and revision which was created by the Arbitration Rules of The Bihar Motion Pictures Association were never affecting the final nature of the award and they were the provisions in their own terms and they were not going to create any obstruction in the enforcement of the award by putting it to execution by a civil court. Thus, I hold that the award was rightly put to execution as it was an award which could be deemed to be passed under the Act. 15. The parties also made submissions on the maintainability of the present revision petition. I have already discussed that Arbitration and Conciliation Act, 1996 completely bars the application of the C.P.C. by virtue of Section 19 of the Act 14 except that the provisions in respect of execution of a decree could be attracted as an award has to be enforced as a decree of a civil court which has to be executed as per the C.P.C. as may appear from the provision of Section 36 of the Act. Except the above, there could not be any application of the C.P.C. Section 4 of the C.P.C. states that in the absence of any provision to the contrary, nothing in this code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred or any specific form of procedure prescribed, by or under any other law for the time being in fore. Thus, the C.P.C. could not be applied to any special law if it contains special procedure and if it has created some special forum and jurisdiction for redressal of the dispute between the parties, as appears the case, under the Arbitration and Conciliation Act. As has been stated at the very out set, the very aim and object with which the Act was framed and passed by the Parliament was to eliminate the supervisory powers of the court to arbitral 15 proceedings. It was mainly to encourage settlement of dispute through alternate dispute redressal fora which could have no procedural road blocks, as such, the provision under the Act of formulating the rules and procedure by the parties themselves while making reference to the arbitrator or by the arbitrator himself. The revisional powers of this Court cannot be exercised as against any order passed by a court of execution unless it is shown to the court that it was permissible under a particular provision of law or the court has committed jurisdictional error on account of which material irregularity was apparent on the face of the record. The prayer is to quash the order passed by Sub-ordinate Judge I, Patna on 20.3.2009 in Execution Case No.12 of 2008. The Court cannot do it because the prayer before the Court below was to dismiss the execution case. This Court cannot direct its dismissal inasmuch as it was legitimately brought before the court under special provision of the Act, i.e., Section 36. There is a provision of appeal and revision 16 under Section 37 of the Act and, as such, the C.P.C. could not be the repository of revisional powers to this Court. 16. In view of expiry of three months time, the application raising objection or prayer for rejecting the above award could not be allowed to be filed specially in light of provisions of Sections 34,36 and 37 of the Act. The Court cannot exercise its revisinal jurisdiction either. 17. This revision petition is, accordingly, dismissed but without cost. Patna High Court The 5th August, 2009 Kanth/A.F.R. ( Dharnidhar Jha, J.)