J.P. DESAI

(1.) This Revision Application raises an interesting question of law as regards the jurisdiction of Courts in India to entertain an application for filing a foreign award under sec. 3 of the Foreign Awards (Recognition and Enforcement) Act 1961 (hereinafter to be referred to as the Foreign Awards Act for the sake of brevity). The petitioners of this Revision Application were respondent Nos. 1 and 2 in Arbitration Petition No. 1 of 1984 while respondent No. 1 in this Revision Application was the petitioner in that arbitration petition. Respondent No. 2 in this Revision Application was respondent No. 3 while respondent No. 3 in this Revision Application was respondent No. 4 in the Arbitration petition. For the sake of convenience I shall refer to the respective parties by their respective positions in the original Arbitration Petition No. 1 of 1984.

(2.) The undisputed facts leading to the filing of this Revision Application may be briefly stated as follows:-

M/s. Brace Transport Corporation of Monrovia a Corporation incorporated under the Laws of Liberia the original petitioner by an agreement dated 4 sold a vessel named Saudi Cloud to M/s. Orri Navigation Lines of Saudi Arabia Jeddah (original respondent No. 2) through the Orient Middle East Lines Ltd. Saudi Arabia Jeddah (original respondent No. 1) There was a provision in the agreement between the parties to refer the disputes arising under the said agreement to arbitration in England. Certain disputes arose between them and therefore the matter was referred to arbitrators in England. The arbitrators gave an award on 25-8-1983 directing respondent Nos. 1 and 2 to pay U.S. $ 185 518 towards balance of purchase price etc. and $ 1172 as costs to the petitioner. The directions it seems were not carried out and therefore. the petitioners filed Arbitration Petition No. 1 of 1984 in the Court of the Civil Judge Senior Division at Bhavnagar against four respondents respondents Nos. 1 and 2 being the petitioners in this Revision Application and respondents Nos. 3 and 4 in the Arbitration petition being respondents Nos. 2 and 3 in this Revision Application. Those two respondents were joined as parties in that petition on the allegation that the vessel was attempted to be sold by respondent No. 1 to respondent No. 3 and respondent No. 3 had attempted to sell the said vessel to respondent No. 4 The application in question was filed under sec. 5 of the Foreign Awards Act. The vessel in question was brought at the port Alang in Bhavnagar District for the purpose of scrapping the same. The sale price of the vessel was to be paid by respondent No. 3 to respondents Nos. 1 and 2. The petitioner prayed for pronouncement of judgment on the award against respondent No. 81 and/or respondent No. 12 for the amount awarded by the arbitrators and also prayed for Certain interim reliefs. The learned trial Judge granted lad-interim relief restraining the respondents from breaking the vessel and restraining respondent No. 3 from making payments to respondents Nos. 1 and 2. Notices were issued to the respondents. The ad-interim relief granted by the trial Court was modified. An appeal against the said order of interim relief is filed by respondents Nos. 1 and 2 being Appeal From Order No. 155 of 1984 which is pending before this Court. I do not propose to refer to the question about the legality propriety or otherwise of the order granting ad-interim relief in this Revision Application because those questions will be decided in that Appeal From Order which is kept pending till the decision of this Revision Application

(3.) A contention was raised on behalf of respondents Nos. 1 and 2 that the Court at Bhavnagar had no jurisdiction to entertain this petition because respondents Nos. 1 and 2 were not carrying on any business whatsoever within the jurisdiction of the Court at Bhavnagar. It seems that respondent No. 3 did not appear to oppose the application. Respondent No. 4 is having in Head Office at Bhavnagar within the local jurisdiction of the Civil Court at Bhavnagar while respondent No. 3 is having its Head Office at Bombay Thelearned Civil Judge heard the learned advocates for the parties on the question of jurisdiction. Relying upon the provisions of sec. 20 of the Code of Civil Procedure the learned Civil Judge held that respondent No. 4 was carrying on business within the local limits of the Civil Court at Bhavnagar while respondent No. 3 had not come forward to raise any objection to the jurisdiction of the Court at Bhavnagar and that way. acquiesced in the jurisdiction and therefore the Civil Court at Bhavnagar had jurisdiction to entertain the petition even though respondents Nos. 1 and 2 had raised objections to the jurisdiction. Being dissatisfied with the decision of the learned trial Judge on the question of jurisdiction respondents Nos. 1 and 2 have filed this Civil Revision Application. If this Civil Revision Application is allowed and it is held that the Civil Court at Bhavnagar had no jurisdiction to entertain the petition in question then naturally the Appeal from Order will not survive as in that case the interim orders passed by the trial Court will have to be set aside on the ground of want of jurisdiction. The question of hearing the Appeal from Order would arise only if this Revision Application is dismissed. In view of this the hearing of- the Appeal from Order has been kept hack for the present with the consent of the learned advocates for all the parties appearing before this Court in this Revision Application.

(4.) Now so far as the jurisdiction aspect is concerned the Petitioner in para 23 of the petition stated that the vessel which was the property of respondent No. 1 and/or respondent No. 2 was at that time within the jurisdiction of the Civil Court at Bhavnagar and the said respondents were carrying on business at Bhavnagar through their agents M/s. Sai Shipping Co. Pvt. Ltd. and the agents for the said vessel at the material time were M/s. Valji P. and Sons (Agencies Bhavnagar and therefore the Civil Court at Bhavnagar had jurisdiction to entertain try and dispose of the petition. The learned trial Judge observed in his order at para 11 after referring to sec. 20 C.P.C. that defendant No. 3 did not reside at Bhavnagar nor there was anything on record to show that defendant No. 3 was carrying on business at Bhavnagar or personally working for gain at Bhavnagar but had not appeared though duly served and that Sway acquiesced in the institution of the petition in the Court at Bhavnagar and therefore in view of clause (b) of sec. 20 C.P.C. the Civil Court at Bhavnagar had jurisdiction to entertain the petition according to the learned trial Judge. The learned trial Judge did not give a definite finding as regards the contention of respondents Nos. 1 and 2 that they were not carrying on any business at Bhavnagar and therefore the Civil Court at Bhavnagar had no jurisdiction. The learned trial Judge observed at para. 11 of his order that though very serious arguments were advanced on behalf of respondents Nos. 1 and 2 that the Civil Court at Bhavnagar had no jurisdiction because they were not residing or carrying on business at Bhavnagar the Court at Bhavnagar had jurisdiction because respondent No. 3 had acquiesced and respondent No. 4 was carrying on- business within the local limits of the jurisdiction of the Civil Court at Bhavnagar. The petitioner alleged in the petition as stated earlier that respondents Nos. 1 and 2 were not carrying on business within the local limits of the Court at Bhavnagar but they did not produce any material whatsoever in support of their contention. On the contrary. one Mr. B. S. Bhesania Constituted Attorney of respondents Nos. 1 and 2 filed a detailed affidavit on 1-2-1984 stating there- in that respondents Nos. 1 and 2 were not carrying on any business whatsoever within the local limits of the jurisdiction of the Bhavnagar Court and that M/s. Sai Shipping Co. Ltd. were general agents carrying on business and that too outside Bhavnagar and that they were not special agents of respondents Nos. 1 and 2. The affidavit filed by Mr. Bhesania thus clearly reveals that respondents Nos. 1 and 2 were not carrying on any business either themselves or through any special agent of theirs at Bhavnagar. Respondents Nos.1 and 2 did not acquiesce in the filing of the petition in Bhavnagar Court because they at the earliest opportunity raised objection to the jurisdiction as stated earlier. Clause (b) of sec. 20 C.P.C. does not help the petitioner assuming that respondent No. 3 acquiesced in the filing of the petition in Bhavnagar Court. What Clause (b) of sec. 20 requires is that when there are more than one defendants ally one of them carries on business or resides etc. within the jurisdiction of the Court then the said Court will have jurisdiction to entertain the proceedings provided the defendants who do not reside or carry on business or personally work for gain within the jurisdiction of that Court acquiesce in such institution. This shows that not only one but all the defendants who might be not residing or carrying on business or personally working for gain within the jurisdiction of that Court must acquiesce so as to confer jurisdiction on that Court. When it is clear that respondents Nos. 1 and 2 who were neither residing nor carrying on business nor personally working for gain within the jurisdiction of the Bhavnagar Court did not acquiesce in the institution of the petition the Bhavnagar Court will not have jurisdiction to entertain the petition simply because respondent No. 4 was carrying on business at Bhavnagar and respondent No. 3 had acquiesced in the institution of the petition in that Court. It seems that the learned trial Judge did not carefully read the provisions of clause (b) before applying them to facts of this case. It seems that he failed to give due .importance to the clear wording of clause (b) which lay down that all those defendants who are not within the jurisdiction of the Court must acquiesce. In view of this the learned Counsel Mr. D. V. Patel appearing on behalf of the original petitioner before this Court was not in a position to satisfy that the Bhavnagar Court will have jurisdiction to entertain the present petition. In other words he was not in a position to support the order of the learned trial Judge on the ground on which it is based. The learned Counsel Mr. D. V. Patel however submitted that looking to the provisions of sec. 5 of the Foreign Awards Act. any Court in India having jurisdiction over the subject matter of the award can entertain this petition. He submitted that while considering the question of jurisdiction only the subject matter of the award was to be seen and it had nothing to do with territorial aspect as sec. 5 only refers to subject matter of the award. So far as the petition is concerned. the avernments have been made on the premise that the provisions of the Arbitration Act of 1940 as also of the Code of Civil Procedure will apply while Mr. Patel submitted that neither the provisions of the Arbitration Act. 1940 (hereinafter to be referred to as the Arbitration Act) nor those of the Code of Civil Procedure can be looked into because the Foreign Awards Act was a self- contained Code. I would not have allowed Mr. Patel to come forward with such a new case in this Revision Application when the pleadings do not disclose such a case so far as the jurisdiction aspect is concerned. but this being a pure question of law to he decided on interpretation of the provisions of the Foreign Awards Act and Particularly sec. 5 of the said Act I have allowed him to make submissions in this regard and have fully heard the learned counsels appearing in this Revision Application.

(5.) To understand the submissions made by Mr. Patel It will be proper to refer to some of the provisions of the Foreign Awards Act which are re levant for our purpose. Sec. 4(1) of the Foreign Awards Act reads as follows:

(1) A foreign award shall. subject to the provisions of this Act. be enforceable in India as if it were an award made on. a matter referred to arbitration in India"

Sec. 5(1) of the said Act reads as follows:-

(1) Any person interested in a foreign award may apply to any court having jurisdiction over the subject-matter of the award that the award be filed in Court.

(6.) The learned Counsel Mr. D. V. Patel urged that the Foreign Awards Act with which we are concerned is a self-contained Code and we cannot look into the provisions of the Arbitration Act 1940 or any other law for deciding the question of jurisdiction and that we have only to look at sec. 5(1) of the for deciding the question of jurisdiction. On the other hand the learned advocate appearing for the petitioners in this Revision petition submitted that sec. 4(1) of the Foreign Awards Act shows that a foreign award is to be deemed to be an award made under the Arbitration Act of 1940 so far as the enforcement is concerned subject of course to this that the provisions of the Foreign Awards Act will prevail if there are any provisions contrary to the same either in the Arbitration Act 1940 or any other law. I shall come to these questions a little later but it will be proper at this stage to refer to the relevant provisions of the Arbitration Act 1940 and also the law in force in India prior to the passing of the of 1940 as also the provisions with regard to enforcement of foreign awards prior to the passing of the Foreign Awards Act 1961 Sec. 12(c) of the Arbitration Act 1940 defines court and it reads as follows:-

"Court means a Civil Court having jurisdiction to decide the questions forming the subject. matter of the reference if the same had been the subject-matter of a suit but does not except for the purpose of arbitration proceedings under sec. 21 include a small Cause court";

Sec. 31(1) of the said Act which refers to jurisdiction as regards filing of an award reads as follows:-

"Subject to the provisions of this Act an award may be filed in any court having jurisdiction in the matter to which the reference relates. 7 Sec. 41 of the which pertains to procedure and powers of Court reads as follows:- Subject to the provisions of this Act and of rules made thereunder:-

(a) the provisions of this Code of Civil Procedure 1908 shall apply to all proceedings before the Court and to all appeals under this Act and

(b) the Court shall have for the purpose of and in relation to arbitration procedings the same power of making orders in respect of any of the arbitration set out in Second Schedule as it has for the purpose of and in relation to any proceedings before the Court;

Provided that nothing in clause (b) hall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters.The second Schedule of the Arbitration Act 1940 which is referred to in sec. 41 reproduced above provides for the preservation interim custody or sale of any goods which are the subject-matter of the reference and issuing interim injunctions.

(7.) Now before this Act of 1940 was brought on the statute-book pro. vision was made in this regard in Second Schedule to the Code of Civil Procedure 1908 In the Second Schedule of the Code of Civil Procedure 1908 Court was not defined as is the case with the Foreign Awards Act with which we are concerned but paragraph 20(1) of the said Schedule which provided for jurisdiction read as follows:

"Where any matter has been referred to arbitration without the intervention of .a court and an award has been made thereon any person interested in the award may apply to any court having jurisdiction over the subject-matter of the award that the award be filed in court"

A comparison of the provisions of Paragraph 20(1) of the Second Schedule of the Code of Civil Procedure 1908 with the provisions of sec. 5 of the Foreign Awards Act shows that the wordings of Paragraph 20(1) are pari material With those of sec. 5 of the Foreign Award Act. It may also be mentioned even at the cost of repetition that Court is not defined in the Foreign Awards Act and the same is the case with the second Schedule of the Code of Civil Procedure"

(8.) The learned Counsel Mr. D. V. Patel submitted that the expression the subJect matter of the award means the relief or reliefs awarded by the award. I am inclined to agree with him. In the case of Rethamalai Servai v. Ramaswami Servai (1919) 10 L.W. 57 the following observations are made at page 58 of the report:-

"Paragraph 20 of the Second Schedule of the Code of Civil Procedure directs The filing of the award in any Court having jurisdiction over the subject matter of the award. By subject matter of the award I think is meant the whole matter dealt with and decreed by the award and tot any particular portion which affects any particular party. The jurisdiction of the Court will depend upon the reliefs awarded by the award".

The above report is not available in this High Court but the above observations are reproduced by the Madras High Court in the case of V. N. Krishna Iyer v. V. N. Subbarama I.L.R. LV Madras 689. That decision of the Madras High Court is not of any assistance in the present case because it appears that part of the subject matter of the award which was immovable property in that case was situate outside the territorial jurisdiction of the Court. But the observations made in the case of Rethamalai Servai (supra) which are reproduced by the Madras High Court and which are reproduced by me above show that the words subject matter of the award mean the matter dealt with and decreed by the award. The observations read as a whole go to show that the subject matter of the award means the whole matter dealt with and decreed by the award which means the reliefs awarded by the award. This decision therefore supports the submission of Mr. Patel that the subject matter of the award means the relief or reliefs granted by the award.

(9.) Schedule 2 Para 20 of the Code of Civil Procedure 1908 contained a provision similar to the provision contained in sec. 5(1) of the Foreign Awards Act that the award has to be filed in the Court which has jurisdiction over the subject matter of the award and while dealing with that provision the Allahabad High Court has also held in the case of B. Upendra Nath Basu v. B. Het Lal and others. A.I.R. 1933 Allahabad 380 that in order to decide whether the Court has jurisdiction over the subject-matter of the award it is necessary to consider the reliefs granted by the award and determine whether the Court would have jurisdiction to try a regular suit between the parties in which the reliefs claimed were the reliefs granted by the award. Those observations are more or less on the same lines as those made in Rethmalai Servai v. Ramaswami Servai (supra) and this decision also supports the submission of Mr. Patel that the subject matter of the award means the relief or reliefs granted by the award.

(10.) The learned Counsel Mr. D. V. Patel submitted that the Foreign Awards Act was enacted to give effect to the Convention on the recognition and enforcement of foreign arbitral awards at New York on the 10th day of June 1958 to which India was a party and for the purposes indicated therein also the Convention can be referred to while interpreting the provisions of this Act. He draw my attention to the decision reported in Salomon v. Commissioners of Customs and Excise (1966) 3 All. E.R. 871 in support of his sub- mission. It is not necessary to go into the discussion of this decision cited by Mr. Patel because so far as the Foreign Awards Act 1961 is concerned the Geneva Convention is not only referred to in the preamble of the but the Convention is made a part of the as the Schedule and therefore there cannot be any difficulty in looking into the Convention to give efFect to which the Foreign Awards Act was enacted.

(11.) Mr. Patel also drew my attention to a decision of the Supreme Court reported in East and West Steamship Co. v. S. K. Ramalingam Chettiar A.I.R. 1960 S.C. 1058. In that case the Supreme Court was concerned with the interpretation of the Schedule to the Carriage of Goods by Sea Act 1925 The Supreme Court observed while interpreting the provisions of the said Act that looking to the international character of the provisions it is incumbent on courts to pay more than usual attention to the normal grammatical sense of the words and to guard against being influenced by similar words used in other Indian Acts. The Supreme Court while interpreting what is meant by loss used in clause 3 paragraph 6 of Article 11 in the Schedule of the said Act referred to the recommendation of the international Conference of Maritime law at Brussels in October 1922 because the in question was enacted to give effect to the same. As stated by me a little earlier. I am inclined to look into the Convention which is a part of the Foreign Awards Act as a Schedule and therefore it is not necessary to go into a detailed discussion on this decision of the Supreme Court relied upon by Mr. Patel. ]

(12.) The learned Counsel Mr. patel then drew my attention to another decision of the Supreme Court reported in M/s. New India Sugar Mills Ltd. v. Commissioner of Sales-tax A.I.R. 1963 S.C. 1207 wherein the Supreme Court has observed at para 8 as follows:-

" It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute and which effectuate the object of the Legislature. It is an expression is susceptible of a narrow or technical meaning as well as a popular meaning the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its powers invalid. If the narrow and technical concept of sale is discarded and it be assumed that the Legislature sought to use the expression sale in a wider sense as including transactions in which property was transferred for consideration from one person to another without any previous contract of sale it would be attributing to the Legislature an intention to enact legislation beyond its competence. In interpreting a statute the Court cannot ignore its aid and subject".

The above observations made by the Supreme Court have certainly to be borne in mind while interpreting the words subject matter of the award used in sec. 5 of the Foreign Awards Acth 1961 and also while considering as to whether any Court in India would have jurisdiction over the subject matter of the award and if so which Court. But at the same time the observations made by the Supreme Court in a latter decision (A.I.R. 1971 S.C. 1) which I shall discuss a little later also shall have to be borne in mind.

(13.) In the case of Renusagar Power Co. Ltd. v. General Electric Company and another (1984) 4 Supreme Court Cases 679 [LQ/SC/1984/206] the question that arose before the Supreme Court was whether the provisions of the Arbitration Act 1940 can be looked into while considering the question of stay of proceedings when there is an arbitration clause between the parties. We are not concerned With that question in the present case but I am referring to this decision of the Supreme Court because the Supreme Court has considered at page 723 of the report at para 50 as to what was the object of the statute.The Supreme Court observed at para 50 as follows:-

"The Statement of Objects and Reasons shows that the seeks to achieve speedy settlement of disputes arising from international trade through arbitration. The Act is a successor to the Arbitration (Protocol and Convention) Act 1937 The earlier Act was intended to effectuate the purposes of Geneva Convention of 1927; it was however felt that the Geneva Convention hamPered the speedy settlement of disputes through arbitration and hence no longer met the requirements of the international trade due to certain defects and therefore in order to remedy inter alia those defects a draft Convention was prepared by the International Chamber of Commerce which was considered by the United Nations Economic and Social Council in consultation with the Governments of the various countries and non- governmental organisations and finally a new International Convention on the Recognition and Enforcement of Arbitral Awards was adopted at New York on 10/06/1958 This Convention was duly ratified by the Government of India and was deposited with the Secretary General of the United Nations on 13/07/1960 The present Act was enacted as its long title indicates to give effect to the said New York International Convention on the Recognition and Enforcement of Foreign Arbitral Awards to which India is a party. Article II pr the Convention provides for recognition by Contracting States of agreements including arbitral clauses in writing by which the parties to the agreement undertake to submit to arbitration all or any differences which have arisen or which may airs between them in respect of defined legal relationship. whether contractual or not concerning a subject- matter capable of settlement by arbitration and sec. 2 of the defines the expression foreign award accordingly i.e. closely following the language of Article II of the convention it is obvious that since the is calculated and designed to subserve the cause of facilitating international trade And promotion thereof providing for speedy settlement of disputes arising in such trade through arbitration any expression or phrase occurring therein should receive consistent with its literal and grammatical sense a liberal construction.

(14.) The above observations of the Supreme Court show that any expression or phrase occurring in this Act should receive consistent with its literal and grammatical sense a liberal construction. In this connection I would like to refer to another decision of the Supreme Court reported in M/s. V/O. TractroexportMoscow v. M/s. Tarapore and Co. A.I.R. 1971 S.C. 1 wherein the Supreme Court was called upon to consider the meaning of the expression submission in sec. 3 of the Foreign Awards Act 1961 The provisions of sec. 3 have since been amended after this decision of the Supreme Court so as to provide for stay of legal proceedings even when there is no actual sub- mission but only agreement refer to arbitration because the Supreme Court in that case held that the world submission used in sec. 3 means actual sub mission or completed reference and does not mean an agreement to refer or an arbitral clause. We are not concerned with any such question in the prese case but I am referring to this decision of the Supreme Court because it was sub- mitted before the Supreme Court that looking to the purpose and object behind enacting the Foreign Awards Act 1961 viz. to give effect to the Convention sec. 3 must be construed as contemplation even a case where there was only an arbitration agreement in force between the parties but where there was no actual reference to arbitration and that contention was negatived by the Supreme Court. The Supreme Court made pertinent observations in this regard at para 17 which are reproduced below:-

"We may look at another well-recognised principle. In this country as is the ease in England the tready or International Protocol or convention does not become effective or operative of its own force as in some of the continental countries unless domestic legislation has been introduced to attain as specified result. Once the Parliament has legislated the Court must first look at the legislation and construe the language employed in it. If the terms of the legislative enactment do not suffer from any ambiguity or lack of clarity they must be given effect to even if they do not carry out the treaty obligation. But the treaty or the protocol or the convention becomes important if the meaning of the expressions used by the Parliament is not clear and can be construed in more than one way. The reason is that if one of the meanings which can be properly ascribed is in consonance with the treaty obligations and the other meaning is not so consonant the meaning which is consonant is to be preferred. Even where an set had been passed to give effect to the convention which was scheduled to it the words employed in the had to be interpreted in the was established sense which they had in municipal law (See Barras s. Aberdeen Steam Trawling and Fishing Co. Ltd. 1933 A.C. 402)".

The above observations of the Supreme Court show that if the terms of the legislative enactment do not suffer from any ambiguity or lack of clarity they must be given effect to even if they do not carry out treaty obligations. I may however. at the same time observe here that even the Articles of the Convention which form part of the as a Schedule do not support the submission made by Mr. Patel as I shall discuss a little later but on the contrary suport the view which I am inclined to take in this matter.

(15.) The learned Advocate Mr. D. V. Patel submitted that the phrase subject matter of the award used in sec. 5 clearly rules out consideration of other aspects of jurisdiction of the Court such as territorial that the only question that has to be considered while considering the question of jurisdiction is the subject matter of the award. Now. let us consider as to what is the meaning of the word jurisdiction. Jurisdiction means the extent of the authority of a court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction. By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute charter or commission under which the court is constituted and may be extended or restricted by the like means. A limitation may be (1) as to the subject- matter (2) as to person; (3) as to the pecuniary value of the suit; or (4) as to place or it may partake of two or more of these characteristics. The subject matter depends upon the nature of the cause of action and the relief prayed for. Jurisdiction means the legal authority to administer justice according to the means which the law has provided and subject to the limitation imposed by that law upon the judge authority. Limitations imposed by law upon judicial authority of a Judge may be territorial or pecuniary or may refer to the subject-matter of the litigation or the nature of the litigation or the class or rank to which the tribunal belongs. Sec. 9 of the Code of Civil Procedure says that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. When therefore we consider the question of jurisdiction we have to consider whether there are any limitations: (1) as to the subject-matter; (2) as to person; (3) as to the pecuniary value of the suit; and (4) as to place. The learned Counsel Mr. Patel submitted that the use of the words jurisdiction over the subject matter of the award used in sec. 5 indicates that while considering the question of Jurisdiction under sec. 5 of the Foreign Awards Act. we have only to consider the subject .matter aspect and no other aspects. He submitted that the subject-matter of the award is money and any Court in India which can give relief in respect of a monetary transaction will have jurisdiction over the subject matter of the award. He submitted that it is in this sense that the words jurisdiction over the subject matter of the award are used in sec. 5(1) of the Foreign Awards Act. He submitted that the concept of pecuniary or territorial jurisdiction therefore. cannot arise while considering the question of jurisdiction under sec. 5(1) of the Foreign Awards Act. It is difFIcult to agree with this submission of Mr. Patel. Sec. 2 of the Foreign Awards Act clearly lays down that foreign award means an award on differences between persons arising out of legal relationships whether contractual or not. considered as commercial under the law in force in India. The award therefore in such cases wilt always be in respect of monies. The subject matter of the award would thus be money and nothing else. Any Civil Court would. therefore. have jurisdiction to deal with this matter. In view of this I am not inclined to agree with Mr. Patel that the words subject matter of the award are used in sec. 5 of the so as to exclude other aspects of jurisdiction. But by its very nature the foreign award will always he in respect of money because the word commercial itself suggests that it pertains to commerce and therefore ultimarely money. Even the dictionary meaning of the word commerce supports the view that I am inclined to take. According to The Oxford English Dictionary. Vol. II. page 677 678 the word commerce means merchandise exchange between men of the products of nature or art; trading; mercantile dealings. According to the said Dictionary Chamber of commerce means a hoard organized to protect the interests of commerce in a town or district: company of merchants commercial body (see pages 256 and 677). According to Web- sters New Twentieth Century Dictionary Second Edition page 364. the word commerce means an interchange of goods wares productions or property of any kind. between nations or individuals. This clearly indicates that the phrase subject matter of the award is not used in sec. 5 with a view to keep out of consideration other aspects of Jurisdiction of the Court.

(16.) The learned Counsel Mr. Patel also submitted that the Foreign Awards Act. 1961 is a self-contained Code so much so that we cannot look into any other Act while considering the question of jurisdiction or any other questions arising under the said Act. prima facie one may be inclined to agree with him because the says what is a foreign award. It makes provisions for stay of proceedings in respect of matters to be referred to arbitration. It provides for jurisdiction of the Court for filing the award and also lays down the conditions for enforcement of foreign awards. It lays down on what grounds enforcement of the foreign award may be refused. It also provides for an appeal if the decree is in excess of the award or is not in accordance with the award. It also provides as to which documents are to be supplied while applying for enforcement of a foreign award. It also empowers the High Court to make rules consistent with the as to the filing of foreign awards. and all proceedings consequent thereon or incidental thereto; the evidence which must be furnished by a party seeking to enforce a foreign award and generally all proceedings in court under this Act. But on a close scrutiny it is not possible to agree with the submission of Mr. Patel that this Act is a self-contained Code to such an extent that we cannot have a look at any other law while considering any questions arising under the. The Foreign Awards Act. 1961 while having made provisions as stated above is silent on many aspects. Sec. 5(1) says that an application is to be made to the Court having jurisdiction over the subject matter of the award. but it does not say as to which Court will have jurisdiction over the subject matter of the award. The Act is completely silent because it has nowhere defined court as is the case with the Arbitration Act. 1940. Sec. 5(2) provides that the application shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants. The registration of civil proceedings has to be made as per the provisions of the Code of Civil Procedure and unless we look into the same. it is difficult to register such an application as a suit. The application is to he treated as a suit and has to be registered as a suit and therefore one has to look into the provisions of the Code of Civil Procedure while registering the matter as a suit. Sec. S(3) provides for issuance of notices to the parties requiring them to show cause. The Act does not prescribe any forms of such notices. We may not attach much importance to this aspect because form is not material. but it is pertinent to note that sec. 5(3) does not provide how the notices are to be served. There is no provision in the as to how the notices are to he served. Unless we have recourse to the Code of Civil Procedure. it cannot he said that the notices have to be served in a particular manner. The Code of Civil Procedure lays down as to how a summons or a notice is to be served. If a notice is sent to a party who refuses to accept the same certain procedure is prescribed in the Code of Civil Procedure for serving me same in such circumstances. If the person to whom the notice is to be served is not found then the notice can be served Upon any adult member of the family as provided by the Code of Civil Procedure. There is also a provision for substituted service in the Code of Civil Procedure. The Act being silent on all these points one has naturally to look into the Code of Civil Procedure for ascertaining as to how the notices are to he served. Sec. 6(2) provides that upon the judgment so pronounced a decree shall follow. No form of decree is prescribed by the and therefore one has to look to the Code of Civil Procedure for drawing up the decree. Sec. 6(2) then provides that no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award. It thus provides for an appeal but does not prescribe the forum in which the appeal is to be filed. If we do not look into the provisions of the Code of Civil Procedure then the question will arise as to before which Court an appeal is to be filed. The Foreign Awards Act is completely silent on this point. Sec. 96 of the Code of Civil Procedure lays down that an appeal shall lie from decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. So far as the State of Gujarat is concerned we have to look to the provisions of the Bombay Civil Courts Act 1969 as applicable to the State of Gujarat for finding out to which Court appeal will lie. The question would also arise as to how the appeal is to be presented and heard. It is only the Code of Civil Procedure which lays down how the appeal is to be presented before whom and what procedure is to be followed therefore. The Act is silent as to what procedure should be followed if a party to the proceedings under the dies. It is only the Code of Civil Procedure which will provide answer to this question. Sec. 107 of the Code of Civil Procedure lays down as to what are the powers of the Appellate Court. The Foreign Awards Act is completely silent so far as this aspect is concerned. Order 3 of the Code of Civil Procedure provides for appearance through recognised agents and Pleaders. The Foreign Awards Act is totally silent so far as this aspect is concerned. The Act is also silent as regards passing of intern orders by the Court in which the foreign award is filed. Provision in this regard is made only in the Code of Civil Procedure. The Act is also totally silent as to what amount of court-fees will have to be affixed on the application for filing the award and what processes shall have to be paid.

(17.) The above aspects which are illustrative and not exhaustive go to show that unless we have a look at the provisions of the Code of Civil procedure and/or other relevant statutes of this country so far as the procedural aspect is concerned it may be difficult well high impossible to proceed further the application presented under this Act for filing the award. It is therefore difficult to agree with the submission of Mr. Patel that the. Act is such a sel contained Code that we cannot have recourse to the Code of Civil Procedure or any other statute while considering the procedure to be adopted for enforcing a foreign award under this Act. In this connection I may mention here that sec. 4 of the Foreign Awards Act reads as under:-

"A foreign award shall subject to the provisions of this Act be enforceable in India as if it were an award made on a matter referred to arbitration in India".

This prima facie shows that a foreign award is to be deemed to be an award made under the Arbitration Act 1940 and the procedure laid down in the Arbitration Act 1940 is to he followed while enforcing such an award provided of course that if there is any special procedure laid down in the Foreign Awards Act 1961 that procedure has to he followed. It also follows that while enforcing a foreign award under the provisions of this Act one has to ordinarily look at the provisions of the of 1961 and if there is any specific provision in the that provision has to be followed but if the is silent on any particular procedural aspect then one has to look into the Code of Civil procedure and other relevant statutes. Even Article III of the Schedule of this Act bays;

"Each Contracting State shall recognise arbitral awards as binding and enforce them in accordion with the rules of procedure of the territory where the award is relied upon under the conditions laid down in the Articles. (Emphasis supplied)"

The same being a part of the Foreign Awards Act as a Schedule has to be looked into while interpreting sec. 4(1) of the said Act as it appears to have been based on this Article. In my opinion the provisions of sec. 4(1) of the are clear and there is no ambiguity. Sec. 4(1) read even without the aid of Art. Ill of the Convention in my opinion. means that the procedure for enforcing a foreign award has to be the same as followed for enforcing domestic award subject course to this that the provisions of the Foreign Awadrs Act 1961 shall prevail if there is any inconsistency between the provisions of the and other Acts which apply to domestic awards. I am supported in this view of mine by a decision of the Supreme Court in South India Corporation (P) Ltd. v. Secretary Board of Revenue Trivendrum. A.I.R. 1964 S.C. 207 wherein it is held that the expression subject to other provisions of the Constitution used in Art. 372 of the Constitution of India means that if there is conflict between pre-existing law and provision of the Constitution latter will prevail. The ambiguity if any is cleared by Art. III of the New York Convention and there cannot be difficulty in looking at the same as it forms part of the Foreign Awards Act as a Schedule.

(18.) In this connection I may mention here that a question arose before the Bombay High Court in the case reported in M/s. Francesco Corsi v. M/s. Gorakhram Gokulchand A.I.R. 1960 Bombay 91 whether the provisions of the Limitations Act will apply when an award is sought to be enforced under the provisions of the Arbitration (Protocol and Convention) Act 1937 The provisions of sec. 4(1) of the of 1937 are pari materia with the provisions of sec. 4(1) of the of 1961. It was sought to be argued before the Bombay High Court that a foreign award is to be deemed to be an award made under the Arbitration Act 1940 because sec. 4(1) provides that a foreign award is enforceable in India as if it were an award made on a matter referred to arbitration in India. It was sought to be urged that Article 178 of the Limitation Act would apply to an application for filing a foreign award and in a Court in India. This contention was negatived by the Bombay High Court. An unreported decision of the Madras High Court rendered by Bashir Ahmed in C.R.A. No. 446 of 1954 and No. 2369 of 1953 delivered on 13-3-1956 was cited before the learned Judge of the Bombay High Court. The learned Judge of the Madras High Court took the view that by analogy the provisions contained in sec. 4 of the Arbitration (Protocol and Convention) Act 1937 that a foreign award shall subject to the provisions of the said Act be enforceable in the provinces as if it were an award made on a matter referred to arbitration in the province would mean that the foreign award when it is sought to be enforced shall conform to all the procedure provided for in the Indian Arbitration Act and laws of the country before it would become a decree of a Civil Court. Taking this view the learned Judge of the Madras High Court held that the provisions of the Limitation Act would apply and the application has to be made within the period prescribed by the Limitation Act of India for making an application for filing an ward. The learned Judge of the Bombay High Court (late Mr. Justice K. T. Desai J. as he then was) disagreed with the decision of the Madras High Court. He held that a foreign award is not placed exactly on the same footing as an Indian award so far as its enforcement is concerned. He referred to sec. 7 of the said Act which laid down numerous conditions which have to be satisfied before a foreign award is considered enforceable. Several conditions are also laid down by sec. 7 of the of 1961 before which an award can be considered enforceable. Sec. 7 lays down the conditions under which the Court can refuse to enforce the award. It has nothing to do with the procedural aspect. The learned Judge of the Bombay High Court took the view that Art. 178 of the Limitation Act did not apply and if that article did not apply the petition was not barred by limitation. I am not called upon to consider the question of limitation in this matter and therefore this decision though as delivered prior to 1-5-60 binding to me cannot come in the way of my considering the question whether the provision of the Code of Civil Procedure can be looked into while deciding the question of jurisdiction. But it is pertinent to note that though the learned Judge of the Bombay High Court disagreed with the judgment of the Madras High Court he did not consider the question as to what was the purpose in enacting sec. 4(1) in the of 1937 if the Indian statutes were not at all to be considered while enforcing the award. If this decision of the Bombay High Court lays down the correct law then it would mean that a foreign award can be enforced at any time in India without any limitation as to time. It is difficult to agree with respect to the learned Judge that the Legislature intended that a foreign award can be enforced at any time though a domestic award can be enforced only within a particular time. The learned single Judge of the Bombay High Court while talking the view that Art. 178 of the Limitation Act does not apply referred to a decision of the Division Bench of the Bombay High Court reported in Madhavprasad v. S. G. Chandavarkar A.I.R. 1949 Bombay 104. The question which arose before the Division Bench of the Bombay High Court was as to which article of the Limitation Act will apply and while considering that question the Division Bench observed that it is an elementary principle of construction that the scope of the Limitation Act cannot be extended by implication and a partys right to come to Court cannot be taken away unless the Limitation Act expressly provides that his right is so barred. These observations were made by the Division Bench while considering as to which article of the Limitation Act will apply and ultimately the Division Bench held that article 11 did not apply but either Art. 120 or Art. 144 would apply and there fore the suit was not barred by limitation. If there was some provision regard ing limitation in the of 1961 then certainly one can say that we cannot look to the Limitation Act of India while considering that question. If there were different provision in the Limitation Act and if there was some doubt as to which provision should apply then certainly the doubt has to be resolved saying that the article which prescribes larger period of limitation will apply and that is what the Division Bench appears to have done in the above case. With utmost respect to the learned single Judge of the Bombay High Court who decided the case which I have discussed earlier it would mean that an application under sec. 5(1) of the of 1961 can be filed at any time without any restriction as to period for doing so if that decision lays down the correct law. If the question of limitation had arisen before me then I would certainly have considered the question of referring the question to a larger Bench but that question of limitation does pot arise in the present case and therefore that decision must be taken to be a decision only so far as the question of limitation is concerned. I may mention here even at the cost of repetition that we do not find any answer to the question as to for what purpose sec. 4(1) of the of 1937 which is pari materia with sec. 4(1) of the of 1961 was enacted unless it was intended to lay down that except when the procedure laid down in the Indian statute is inconsistent with the provisions of the the said procedure has to be followed. I may also mention here that just as the of 1961 is based on New York Convention the of 1937 with which the learned single Judge of the Bombay High Court was concerned was based on Geneva Convention and the said Convention is also a part of the said Act as Second Schedule. Article 1 of the said Convention also provided that the rules of the procedure of the righttory where the award is relied upon had to be followed. Provisions as regards limitation which barred the filing of a proceeding after a certain period are procedural and therefore they form part of procedural law. The provisions of the limitation Act ordinarily bar the remedy and do not extinguish the right and that way they are procedural. There is only one provision in the Limitation Act 1963 and that is sec. 27 which extinguishes the right if a suit is not filed for possession of any property within the period prescribed by the for filing such suit. According to Dicey and Morris in the Conflict of Laws 1973 Edition page 11 the expression Lex fori means the local or domestic law of the country to which a court wherein an action is brought or other legal proceeding is taken belongs. According to the same authors all matters of procedure are governed by the domestic law of the country to which the Court wherein any legal proceedings are taken belongs (Lex fori) and the term procedure includes the statute of limitation amongst other things. Even according to Cheshires Private International Law Ninth Edition page 687 statutes of limitation if they merely specify a certain time after which right cannot be enforced by action affects procedure and not substance. From these provisions of International Law as can be culled out from the above two standard books it; can be said that the provisions of the Indian Limitation Act could have been invoked even apart from the provisions of sec. 4(1) of the of 1937 in that case which I have discussed earlier. But it appears to me that sec. 4(1) of the said Act of 1937 and sec. 4(1) of the of 1961 read with the corresponding Articles of the Convention which I have already referred to earlier clearly go to show that the procedural laws of the country in which the award is relied upon would govern the procedural aspect of the filing of the foreign award and that would include the question of limitation also being a procedural one. I am supported in this view of mine by the following observations made in Minister of Public Works of the Government of the State of Juwait v. Sir Frederick Show and Partners 1933 Weekly Law Reports 818 at page 823:-

"Article III of the New York Convention provides:-

Each contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. And it is settled law that all issues as to limitation are procedural in their nature".

But anyway the decision of the Bombay High Court does not come in my way in considering the question of jurisdiction even assuming that Limitation Act may not apply though with the respect of the learned Judge of the Bombay High Court I am not inclined to agree with him.

(19.) Before proceeding further I would like to mention that in the case of Renusagar Power Co. Ltd. (supra) Justice Tulzapurkar who delivered the judgment has also made observations at para. 50 as follows:-

"Moreover an examination of the relevant provisions of this Act and the Arbitra tion Act 1940 will show that the schemes of the two Acts are not identical and as will be pointed out at the appropriate stage there are variouS differences which have a material bearing on the question under consideration and as such decisions on similar or analogous provisions contained in the Arbitration Act may not help in deciding the issue arising under the Foreign Awards Act because just as the Arbitration Act 1940 is a consolidating enactment governing all domestic awards the Foreign Awards Act constitutes a complete code by itself providing for all possible contingencies in relation to foreign awards made pursuant to agreements to which Article II of the Convention applies".

These observations at the first blush go to support the submission made by Mr. Patel. The Act can be said to be a complete Code as observed by Justice Tulzapurkar in the sense that so far as specific provisions are made in the said Act we cannot look at any other Act. It is also partner to note that the Supreme Court in that case was called upon to consider the question whether the provisions of the Arbitration Act 1940 can be looked into while considering the question of stay of proceedings under sec. 3 of the Foreign Awards Act 1961 Specific provision is made in sec. 3 of the Foreign Awards Act as regards stay of proceedings in respect of matters referred to arbitration. When there is a specific provision made in the said Act we cannot look to the provisions of the Arbitration Act 1940 because even sec. 4(1) of the says that a foreign award shall be enforceable in India subject to the provisions of the said Act. It was in view of this specific provision made in sec. 3 of the Foreign Awards Act read with sec. 4(1) of the said Act that the Supreme Court held in the above case that the provisions of the Arbitration Act 1940 (Indian Statute) cannot be looked into while considering the question of stay. The observations made in the above case by the Supreme Court at para. 50 are that the Foreign Awards Act constitutes a complete code by itself providing for all possible contingencies in relation to foreign awards made pursuant to agreements to which Article 11 of the Convention applies. The Act can be said to be a complete Code so far as provisions are made with regard to different contingencies but it cannot be said so with respect to different procedural aspects high lighted by me earlier that the is a complete Code even with regard to those procedural aspects. The observations made by the Supreme Court are entitled to due weight and binding to this Court but they have to be read in the context in which they are made. It was never the contention before the Supreme Court that Code of Civil Procedure does not apply to these proceedings. I would like to mention here even at the cost of repetition that the Supreme Court made the above observations while considering the scope of sec. 3 of the Foreign Awards Act and while comparing the provisions of the said section with those of sec. 34 of the Arbitration Act 1940 The Foreign Awards Act is based on New York Convention and the same forms part of the said Act as a Schedule. The Schedule is to be read while interpreting the provisions of the said Act. That way it can also be said that Act is a self-contained Code which read as a whole includes the Schedule shows that procedural laws of this country which includes the Code of Civil Procedure and certainly be looked into while considering the question of jurisdiction.

(20.) As discussed above the provisions of Article III of the New York Convention which form part of the Foreign Awards Act as a Schedule show that foreign awards are to be enforced in accordance with the rules of procedure of India when the award is relied upon in India. of course under the conditions laid down in the Articles.

(21.) It may not be necessary to go to any other book or authority for reaching the conclusion that the Code of Civil Procedure is applicable even to the proceedings of filing a foreign award under the provisions of the Foreign Awards Act. 1961 as discussed above particularly when Article III of the New York Convention leaves no doubt. Even considering that question in the light of Private International Law it appears that there cannot be any doubt that the Code of Civil Procedure and other procedural statutes of this country have to be looked into while enforcing a foreign award under the Foreign Awards Act. 1951. Cheshires Private International Law. Ninth Edition. Part VII deals with substance and procedure. It is observed at page 683 in Chanter XX of the said Part that one of the eternal verities of every system of private international law is that a distinction must be made between substance and procedure between tight and remedy. The substantive rights of the parties to an action may be governed by a foreign law. but all matters appertaining to procedure are governed exclusively by the lex fori. At first sight the principle seems almost self-evident. It is observed in the same book on the same page that a person who resorts to an English Court for the purpose of enforcing a foreign claim cannot expect to occupy different procedural position from that of a domestic litigant. The department of procedure constitutes perhaps the most technical part of any legal system and it comprises many rules that would be unintelligible to a foreign judge and certainly unworkable by a machinery designed on different lines. A suitor in England must stake the law of procedure as he finds it. He cannot by virtue of some rule in his own country enjoy greater advantages than other suitors in England; neither must he be deprived of any advantages that English law may confer upon a litigant in the particular form of action. The above observations which are made in the above standard book equally apply to a person who comes forward to enforce a foreign award in India.

(22.) Now the relief granted by the award which is the subject matter of the award is no doubt payment of money. While considering this aspect we cannot however keep out of consideration at least the person by whom the payment of money is to be made. The relief granted by the award in the present case is thus a debt payable by original respondents Nos. 1 and 2 to the original petitioner. It is not an abstract relief of payment of money. In the Conflict of Laws by Dicey and Morris Ninth Edn. Rule 20 which appears in Chapter 10 having the title Jurisdiction in Actions in personam reads follows:-

"The court has jurisdiction to entertain an action in personam if and subject to Rule 21 to 23 only if the defendant is in England and served there with the writ in the manner prescribed by statute or statutory order".

Rule 23(3) appearing in the said Chapter reads as follows:-

"The Court has jurisdiction to entertain an action in personam against a defendant who is not in England at the time for the service of the writ whenever it assumes jurisdiction in any of the cases mentioned in this Rule.

... ... ... ... ... ... ... ... ... ...

(2) The Court may assume jurisdiction if in theion begun by the writ relief is sought against a person domiciled or ordinarily resident in England.

Rule 23(6) reads as follows:-

"The Court may assume jurisdiction if the action began by the writ is brought against a defendant not domiciled or ordinarily resident in Scotland to enforce rescind dissolve annul or otherwise affect contract or to recover damages or obtain other relief in respect of the breach of contract being (in either case) a contract which

(i) Was made in England; or

(ii) was made by or through an agent trading or residing in England on behalf of a principal trading or residing out of England; or

(iii) is by its terms or by implication governed by English law. Rule 23(16) contained in the said Chapter reads as follows:-

"The Court may assume jurisdiction ever a claim for damages loss of life or personal injury arising out of a collision or like navigational incident involving two or more ships or over a limitation act if but only if-

(a) the defendant has his habitual residence or a place of business within England; or

(b) the cause of action across within inland waters of England or within the limits of an English port; or

(c) an action arising out of the same incident is proceeding in the Court or has been heard and

determined by the Court; or

(d) the defendant has submitted or agreed to submit to the jurisdiction of the Court.

(23.) If we examine the question of jurisdiction in the light of the above provisions of Private International Law it is clear that the award can be enforced in India provided the pers on against Whom the relief is claimed is residing in India or carries or business in India or if the cause of action or a part thereof has arisen in India. The result will be the same even on examining the question in the light of the provisions of the Code of Civil Procedure. Part 8 contained in the above book of Dicey and Morris pertains to procedure and Chapter 36 deals with the distinction between matters of substance and matters of procedure with particular reference to remedies and process damages statutes of limitations evidence. parties priorities set-off and counterclaims and security for costs. Rule 204 contained in that Chapter 36 Says that all matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs (lex fori). It appears that Article III in New York Convention is based on this Rule 204. Dicey observed at page 1112 that in determining who are the proper parties to an action the first question is whether the plaintiff or defendant is the sort of person or body that can the made a party to litigation and this is a question for the lex fori. It is further observed therein that an action could not be commenced in England in the name of a dead man even though this was possible by the lex cause. The same is the position in India because it is settled law that no action could be commenced against a dead person even in India.

(24.) In the case of R. L. Arora v. state of Uttar Pradesh and others A.I.R. 1964 S.C.1230 the Supreme Court observed that a literal interpretation of a statute is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used in a provision of the statute. It is permissible to control the wide language used in a statute if that is possible by the setting in which the words are used and the intention of the law taking body which may be apparent form the circumstances in which the particular provision came to be made.

(25.) If we interpret sec. 4(1) of the Foreign Awards Act read with Article III of New York Convention in the light of the observations made in the above case by the Supreme Court. it is crystal clear that the Parliament intended that so far as the procedure applicable for enforcing foreign awards is concerned. the procedure adopted in India for enforcement of domestic awards has to be followed subject of Course to this that if there is any conflict between the two the procedure laid down in the Foreign Awards Act must prevail.

(26.) In the case of Ludwig Wunsche and Co. v. Raunaq International Ltd. A.I.R. 1983 Delhi 247 the question that came up for consideration was as to what procedure should be followed for enforcement of foreign awards in India. The question of jurisdiction of course did not arise before the said Court. The question whether the Code of Civil Procerure Will apply or not also did not arise for consideration before the Delhi High Court in that case. It appears from the facts stated in the above case decided by the Delhi High Court that Ludwig Wunsche and Co. applied to the Delhi High Court to enforce a foreign award and prayed that the said award may be filed in the Court and a decree be made in terms thereof. This application was obviously under sec. is of the Foreign Awards Act. The original award and a duly authenticated copy of the award were also enclosed with the application as annexures as required by the provisions of the Foreign Awards Act. The application was ordered to be registered as a suit and the Registrar of the Delhi High Court further passed the order that the arbitrator be directed to file the original award award proceedings and documents on or before the returnable date of the notice. The petitioner-Company before the said date filed the application under sec. 151 read with sec. 153 of the Code of Civil Procedure praying that the order made by the Registrar be clarified and/or modified/amended by withdrawing the direction to the Arbitrators to file the original award award proceedings and documents as the award had already been filed along with the petition and the award proceedings and documents were not statutorily required. Notice of the said application was issued to the opponent-Indian Company on whose behalf the request was opposed. The Registrar after hearing the parties made a reference to the Court for appropriate orders. The Indian Company in the meanwhile also applied to the Court for setting aside the award for the reasons stated in the application. The learned single Judge of the Delhi High Court referred to the corresponding provisions of the Arbitration Act 1940 (Indian statute) and those of the Foreign Awards Act 1961 and also those of the Arbitration (Protocol and Convention) Act 1937 which was the in force for enforcement of foreign awards prior to the coming into force of the Foreign Awards Act 1961 because the application by Ludwig Wunsche was filed alternatively under the corresponding provisions of the above said two Acts i. e. the of 1961 and the tAct of 1937 and then observed that the of 1937 as well as the of 1961 were special statutes dealing with certain categories of arbitral awards while the of 1940 was a general provision with regard to the arbitration and it is well known that the special statute prevails over the general. He also referred to sec. 47 of the Arbitration Act. 1940 which provides that subject to the provisions of sec. 46 of the said Act and save in so far as is otherwise provided by any law for the time being in force; the provisions of the of 1940 shall apply to all arbitrations and to all proceedings thereunder and observed that it was a possible view to take of the exclusion under sec. 47 of the of 1940 that the provisions of thes of 1937 and 1961 would prevail to the extent of inconsistency with the provisions of the of 1940 and that matters for which there was no provision in thes of 1937 and of 1961 would be regulated by the general provisions contained in the of 1940 The learned single Judge observed that this could be inferred from the use of the words save in so far as is otherwise provided in sec. 47. The learned Single Judge also referred to the decision of the Bombay High Court in M/s Francesco Corsi v. M/s. Gorakhram Gokalchand (supra) and observed that the said decision of the Bombay High Court appears to provide a complete answer to the question raised on before of the Indian Company. I have discussed this judgment of the Bombay High Court earlier and hence it is not necessary to enter into any detailed discussion so far as that judgment of the Bombay High Court is concerned. But it is pertinent to note that even though the learned single Judge of the Delhi High Court observed at para. 9 of his judgment that the decision of the Bombay High Court appears to provide a complete answer to the question raised on behalf of the Indian Company he also observed at para 7 of the judgment that where there was no provision in thes of 1937 and of 1961 the matters will be regulated by the general provisions contained in the of 1940 The learned single Judge then summed up his observations at para. 12 of the judgment as follows :-

" While some doubt may still be possible and expression to it has already been give by the High Court if the provisions of secs. 34 and 35 of the of 1940 would be applicable to foreign arbitration. there could be little doubt that the of 1940 would have no application to regulate proceedings in India for the enforcement of a foreign award to the extent there are specific provisions made in the of 1937 or of 1961 which are inconsistent with the corresponding provisions of the of 1940. That is the position that obtains in relation to an application to file the foreign award and to seek its enforcement".

The ratio of this decision of the Delhi High Court thus in short is that when the of 1961 is silent the procedure laid down for enforcement of domestic awards in this country has to be followed.

(27.) The discussion made above will go to show that while enforcing a foreign award in this country under the provisions of the Foreign Awards Act 1961 one has to look at the provisions of the Foreign Awards Act and follow the procedure laid down thereof but if the said Act is silent with regard to any procedural aspect or aspects which are illustrated by me earlier at pages 23 and 24 then rules of procedure of this country where the award is relied upon have to be followed. The question as to which Court will have jurisdiction to entertain the application for filing an award under sec. 6(1) of the Foreign Awards Act will have therefore to be decided with reference to the provisions of the Code of Civil Procedure which govern the procedure in this country because sec. 5(1) of the Foreign Awards Act simply says that the award may be filed in the Court having jurisdiction over the subject matter of the award but it is silent as regards the Court which will have jurisdiction over the subject matter of the award. The jurisdictional aspect is a procedural one and therefore the provisions of the Code of Civil Procedure will be applicable unless there is a conflict between the provisions of the Foreign Awards Act and the procedure laid down in the Code of Civil Procedure. There cannot be a question of conflict so far as this aspect is concerned because the Foreign Awards Act 1961 as stated by me earlier is silent as regards the Court which will have the jurisdiction over the subject matter of the award and other procedural aspects. The learned trial Judge as stated by me in the beginning held for the reasons recorded by him that the Court at Bhavnagar had jurisdiction to entertain the application filed under sec; 5(1) of the Foreign Awards Act. He of course reached this finding taking into consideration the provisions of the Code of Civil Procedure. The original petitioner approached the Bhavnagar Court on the permises that the Bhavnagar Court had jurisdiction and for that purpose the petitioner relied upon the provisions of the Code of Civil Procedure and no question was raised as regards non-applicability of the Code of Civil Procedure before the learned trial Judge. The learned advocate Mr. D. V. patel as discussed by me a little earlier was also unable to satisfy me that the Bhavnagar Court will have jurisdiction to entertain the present petition on the grounds on which the order was passed by the trial Court. I have shown while discussing this aspect in the beginning at pages 5 to 7 how the learned trial Judge committed an error in holding that he had jurisdiction to entertain this petition. Even Mr. D. V. Patel for the petitioner as observed by me at page 7 was not able to support the order of the learned trial Judge for the reasons given by him.

(28.) The learned advocate Mr. D. V. Patel drew my attention to the Full Bench decision of the Travancore Cochin High Court reported in Mariamma Mathew v. lttoon Poulo A.I.R. 1952 Travancore-Cochin 159 in support of his submission that because the Bhavnagar Court could attach the debt payable by the original respondent No. 3 Metal Scrap Trade Corporation Ltd. to original respondents Nos. 1 and 2 the Orient Middle East Lines Ltd. and Mrs. Orri Navigation Lines of Saudi Arabia which debt was payable at Calcutta the Civil Court at Bhavnagar had jurisdiction to entertain this petition. Even applying the provisions of the Code of Civil Procedure I fail to understand how this decision of the Tranvancore-Cochin High Court can at all support the submission made by Mr. Patel Sec. 136 of the Code of Civil Procedure provides for attachment before judgment of the property beyond the Courts jurisdiction. A Court can therefore pass an order for attachment before judgment of properties situate beyond its jurisdiction. This Full Bench decision itself says that sec. 136 prescribes the procedure and it does not touch the jurisdiction. I do not think that this decision of the Travancore-Cochin High Court at all supports the submission made by Mr. Patel based on sec. 136 of the Code of Civil Procedure.

(29.) Now the subject matter of the award in question is a debt payable by original respondent No. 3 to original respondents Nos. 1 and 2. The award is in favor of the original petitioner M/s. Brace Transport Corporation of Monrovia and as per the said award the amount is payable to the original petitioner by original respondents Nos. 1 and 2. Neither of these respondents No. 1 and 2 have any office at Bhavnagar nor do they carry on business in this country within the jurisdiction of the Bhavnagar Court. No cause of action or part thereof has arisen within the jurisdiction of the said Court. The sale agreement reference and passing of the award all took place not only beyond the jurisdiction of Bhavnagar Court but also beyond the jurisdiction of the Courts of India. In view of this it is difficult to say that the Bhavnagar Court will have jurisdiction simply because the amount payable by original respondent No. 3 to original respondents Nos. 1 and 2 which is payable at Calcutta through a Bank can be attached before judgment under sec. 136 of the Code of Civil Procedure.

(30.) It was of course contended on behalf of the original respondents Nos. 1 and 2 as also on behalf of original respondent No. 3 that even the Calcutta Court will not have any jurisdiction because neither respondents Nos. 1 and 2 carry on business within the jurisdiction of the said Court nor has any cause of action or even a part thereof has arisen within the jurisdiction of that Court. I do not propose to discuss this aspect because I am only concerned in this matter with the question whether the Court at Bhavnagar has jurisdiction to deal with this matter.

(31.) The result of the aforesaid discussion is that the Court at Bhavnagar had no jurisdiction to entertain this application filed under sec. 5(1) of the Foreign Awards Act 1961 for enforcing the foreign award. The Revision Application is therefore required to be allowed and the order passed by the trial Court holding that the trial Court had jurisdiction to entertain this application is required to be set aside and the petition is required to be directed to be returned to the original petitioner for presentation to the proper Court.

(32.) The petitioner filed this petition before the trial Court relying upon the provisions of the Code of Civil Procedure which On the face of it show that the Bhavnagar Court had no jurisdiction. Merely because the ship was brought to Port Alang in Bhavnagar District for scrapping the Bhavnagar Court would not have any jurisdiction because the ship was not the subject matter of the award and the ship was again not the property of the original respondents Nos. 1 and 2 at the time the petition was filed. It was already sold by original respondents Nos. 1 and 2 to originals respondent No. 3 and original respondent No. 3 had also already sold the same to original respondent No. 4 The jurisdiction of the Bhavnagar Court was tried to be supported on quite a different ground before me. Respondents Nos. 3 and 4 were not at all necessary or even proper parties to the petition filed in the Bhavnagar Court. They were required to be joined as respondents in revision application before this Court because they were made parties to the original petition. In view of this I see no reason why the original petitioner-respondent No. 1 in this revision petition should not be directed to pay the costs of this Revision petition as well as the costs of the original petition to the original respondents in the petition before the Bhavnagar Court. Hence I propose to direct them to pay the costs accordingly to the original respondents.

(33.) The Revision petition is therefore allowed the order passed by the Trial Court holding that it had jurisdiction to entertain the petition filed before it is hereby set aside and the trial Court having no jurisdiction to entertain that petition the trial Court is directed to return the petition to the original petitioner for presentation to the proper Court.

(34.) Respondent No. 1 of this Revision petition to pay the costs of this Revision Petition to the petitioners in this Revision Petition in one set and to respondents Nos. 2 and 3 of this Revision petition in different sets. 36 Respondent No. 1 (original petitioner) to pay the costs of the original petition of the trial Court to all the respondents of that original petition in different sets.

(35.) Rule made absolute accordingly. (PAP) Petition Allowed.