Dr. Mukundakam Sharma, J.:— By this judgment and order I propose to dispose of the petition filed by the petitioners under section 36 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) praying for execution of the alleged award dated January 12, 2001 passed by Hon'ble Mr. Justice S. Ranganathan, the learned Sole Arbitrator, in I.A No. 8 of 2000 in the arbitration proceedings pending before him upon reference from this Court by order dated April 12, 1999 in A.A No. 362 of 1998. Disputes having arisen between Puri Construction Ltd. and CREF Finance Ltd., the same were referred for adjudication through the process of arbitration of Hon'ble Mr. Justice S. Ranganathan by order of this Court dated April 12, 1999. The said reference was made on the basis of an agreement between the aforesaid two parties dated July 30, 1997 which contained an arbitration clause. Pursuant to the aforesaid reference, the learned Arbitrator entered into the reference and when the said arbitration proceedings were continuing, an application was filed by the respondent herein, namely, CREF Finance Ltd. praying for impleading five more parties as parties to the aforesaid arbitration proceedings on the ground that the said five parties were confirming parties in the agreement dated July 30, 1997. The said five parties are the present petitioners before this Court who have described themselves in the present petition as decree-holders.

2. However, it is required to give a little background about the status of the five parties so as to appreciate the contentions of the parties. Shri Mohinder Puri is the Managing Director and his son Shri Arjun Puri is a Director of Puri Construction Ltd., whereas Shri Sunil Manchanda is the son-in-law of Shri Mohinder Puri. Florentine Estates of India Limited, petitioner No. 1, and Mad Entertainment Network Ltd, petitioner No. 2, are two wholly owned subsidiaries of Puri Construction Ltd. The respondent's case in the said application which was filed by it on July 25, 2000 before the learned Arbitrator was that not only the Puri Construction Ltd. but all the aforesaid five persons are parties to the arbitration agreement as they are confirming parties in the said agreement and, therefore, they are proper and necessary parties to the arbitration and they should be formally impleaded in the proceedings. The stand of the present petitioners in this case before the learned Arbitrator was that they were not parties to any arbitration agreement with the respondent and that the scope of the reference to the Arbitrator was confined only to the disputes between Puri Construction Ltd. and CREF Finance Ltd. as would be crystal clear from the terms of reference of the High Court. The learned Arbitrator considered the rival submissions and the statements and other connected records, and on appreciation thereof held that Puri Construction Ltd.'s five associates are not parties to the arbitration agreement of July 30, 1997 or February 24, 1998.March 25, 1998 within the meaning of the Act who could invoke or against whom could be invoked, the provisions of the Act. The learned Arbitrator further held that the disputes of Puri Construction Ltd. were only with CREF Finance Ltd. which are the two parties to the agreement and, therefore, the said five parties are neither necessary nor proper parties to the arbitration proceedings. After coming to the aforesaid conclusion, the learned Arbitrator by his order dated January 12, 2001 dismissed the application filed by CREF Finance Ltd. for impleadment of the aforesaid five parties to the arbitration proceedings holding the said application to be misconceived. After passing of the said order the present petition is filed praying for enforcement of the said order passed by, the learned Arbitrator. However, the reliefs which are sought for by filing this petition require specific mention and, therefore, they are extracted here-in-below:—

a. BY permanently and mandatorily injuncting the judgment debtor, its servants, agents, successors, assignees and anybody acting under its authority from in any manner whatsoever raising any claim against the decree holders in respect of any issues arising out of or emanating from the agreements dt. 30.7.1997 and 24.02.1998 entered into by and between Puri Construction Limited and the Judgment debtor before any Court, Tribunal and or Forum, judicial or otherwise;

b. BY detaining Sh. Ravi Puri, Director of the Judgment debtor com pany in Civil Prison till such time as the judgment debtor gives an unqualified and unequivocal undertaking in writing on oath to the said effect before this Hon'ble Court.

3. In the context of the aforesaid background facts and the prayers made in the petition the issue that arise for my consideration is whether or not an order could be passed by this Court directing for enforcement of the said order in the light of the prayers made in the petition.

4. The aforesaid order which is made the subject-matter of the present petition was passed by the learned Arbitrator on January 12, 2001 holding that the petitioners herein are not necessary and proper parties to the arbitration proceedings and, therefore, the application is misconceived. By the said order, the application was dismissed. The said order is sought to be enforced under the provisions of section 36 of the Act with the contention that the said order is an award within the meaning of the provisions of section 2(1)(c) of the Act. Since the enforcement of the said order is sought for under section 36 of the Act it would be necessary to extract the said provision and some other relevant provisions of the Act in order to properly appreciate the contentions of the counsel appearing for the parties:—

“2. Definitions. — (1) In this Part, unless the context otherwise requires,—

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(c) “arbitral award” includes an interim award;

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(h) “party” means a party to an arbitration agreement.

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8. Power to refer parties to arbitration where there is an arbitration agreement. — (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

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21. Commencement of arbitral proceedings. — Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

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23. Statements of claim and defence.— (1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

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34. Application for setting aside arbitral award.—

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(2) An arbitral award may be set aside by the court only if—

(a) the party making the application furnishes proof that—

(i) a party was under some incapacity; or

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35. Finality of arbitral awards. — Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.

36. Enforcement. — Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.

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5. A conjoint reading of the aforesaid provisions would imply that the word “party” wherever it occurs in the Act unless the context otherwise requires would only mean such person who is a party to an arbitration agreement. The sole contention of the petitioners before the Arbitrator was that they were not parties to the arbitration agreement and, therefore, not necessary and proper parties. The contention of the respondent, however, was that the said five persons were confirming parties to the agreement and, therefore, necessary parties to the said proceedings. The learned Arbitrator considered the aforesaid rival submissions between the parties and on consideration of the records and the various clauses in the agreement came to the conclusion that the said five persons who are petitioners in the present case are not necessary and proper parties and they are not to be impleaded in the present proceedings. However, the aforesaid decision of the learned Arbitrator was not in relation to a dispute concerning any claim of the parties. The said order relates to parties to the arbitration agreement and not touching the merit of the claim of the parties. The expression “award” has been defined in the Act when it states that an arbitral award includes an interim award. Section 36 of the Act speaks of enforcement of an award when it states that where the time for making an application for setting aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure in the same manner as if it were a decree of the court. An arbitral award is stated to be final and binding on the parties and persons claiming under them respectively which is provided for under section 35 of the Act. It is, therefore, clear and apparent that an award is rendered by the Arbitrator or the Arbitral Tribunal only in respect of the disputes between the parties arising out of or in connection with the agreement and such award is final and finding on the said parties to the agreement and also on persons claiming under the said parties to the agreement, and not as against any other person. Legality and validity of an arbitral award also can be challenged only by a party to the agreement which is made clear by the provisions of sub-section (2) of section 34 of the Act when it states that an arbitral award could be set aside by the court only if the party making the application furnishes proof of the nature as stated in the said provision. The expression ‘party’ means a party to the agreement. The aforesaid provisions, therefore, clearly lay down that an award including an arbitral award is passed by the arbitral tribunal in respect of disputes arising out of or in relation to the agreement which contains the arbitration clause. Any order passed by the arbitral tribunal deciding as to who are the proper and necessary parties cannot, therefore, be strictly called an award or an interim award. No such order could be made the subject-matter of enforcement of award by filing a petition under section 36 of the Act for it is clearly apparent from the language used in the provisions of sections 34 and 36 of the Act that an award could be challenged only by the party to the arbitration proceedings and by none else. Therefore, this petition filed by the petitioners is misconceived. Even otherwise even if it is assumed that such an order is executable and enforceable in accordance with the provisions of section 36 of the Act, even then the reliefs that are sought for by the petitioners in the present petition cannot be granted for what is sought to be achieved by way of reliefs is obtaining a declaration and permanent injunction from this Court which cannot be granted by this Court by exercising jurisdiction under section 36 of the Act. This Court cannot grant a declaration and injunction of the nature sought for. The court at Gurgaon is not a subordinate of this Court. Even if it is assumed that an order under section 36 of the Act could be passed by this Court, the said order would only be to the extent that the five petitioners herein are not necessary parties in the arbitration proceedings, and beyond that no further declaration and/or injunction could be granted restraining the respondent herein from instituting any proceedings in any other court. Such an order cannot be issued as it would be contrary to the provisions of section 42 of the Specific Relief Act. The petitioners would be entitled to take up all pleas as available to them in accordance with law in the court at Gurgaon, which when raised would be decided in accordance with law. This Court cannot issue an injunction to the said court restraining the said court from proceeding with the said suit. Such an order, if issued, would be beyond the jurisdiction of this Court.

6. In the light of the aforesaid discussion, it is held that not only the reliefs as sought for by the petitioners in this petition cannot be granted in their favour but it is also held that this petition is misconceived, and is, accordingly dismissed.