Karnataka High Court
Abraham Memorial Edcucation Trust vs Prodigy Development Institution Pvt … on 10 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 06.06.2025
Pronounced on : 10.06.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.9659 OF 2025 (GM-CPC)
BETWEEN:
ABRAHAM MEMORIAL EDCUCATION TRUST
REGISTRED UNDER THE
INDIAN TRUSTS ACT 1882
HAVING ITS OFFICE AT:
SINGENA AGRAHARA ROAD
VIA HUSKUR ROAD, APMC YARD
HUSKUR PO., ELECTRONIC CITY
BENGALURU - 560 099
REP. BY ITS MANAGING TRUSTEE
... PETITIONER
(BY SRI K.G.RAGHAVAN, SENIOR ADVOCATE FOR
SRI PINAZ MEHTA, ADVOCATE)
AND:
PRODIGY DEVELOPMENT INSTITUTION PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT
B4/232, SAFDARJUNG ENCLAVE
SOUTH DELHI, NEW DELHI - 110 029
2
REPRESENTED BY ITS DIRECTOR
... RESPONDENT
(BY SRI DHANANJAY V.JOSHI, SENIOR ADVOCATE A/W.,
SRI CHETAN C., ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS WITH
RESPECT TO COMM.EX.PETITION NO. 180/2024 PENDING ON THE
FILES OF THE XI ADDL. DISTRICT AND SESSIONS JUDGE,
(DEDICATED COMMERCIAL COURT), BENGALURU RURAL DISTRICT,
BENGALURU.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON’BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/judgment debtor is at the doors of this Court
calling in question an order dated 07-03-2025 passed by the XI
Additional District and Sessions Judge (Dedicated Commercial
Court), Bengaluru in Commercial Execution Petition No.180 of 2024
holding that the commercial execution petition is maintainable
before the concerned Court.
3
2. Heard Sri K.G. Raghavan, learned senior counsel appearing
for the petitioner and Sri Dhananjay V.Joshi, learned senior counsel
along with Sri C. Chetan, learned counsel appearing for the
respondent/caveator.
3. Facts, in brief, germane are as follows: –
A term sheet comes to be executed between the petitioner
and Global India Holdings Private Limited for acquisition of an
educational institution operated by the petitioner in Bengaluru along
with all its assets and liabilities. Pursuant to the drawal of term
sheet, an agreement to sell is executed between the petitioner and
the respondent for sale of 29 school buses for a total consideration
of ₹2,70,00,000/- with an initial deposit of ₹2.50 crores paid by the
respondent to the petitioner. The agreement to sell was terminated
by the respondent and alleging unilateral termination, the petitioner
is said to have issued notice invoking arbitration clause as found in
the agreement to sell. The arbitration proceedings are continued.
An arbitral award is passed on 19-11-2019 directing the petitioner
to refund ₹2.50 crores along with applicable interest. Challenging
4the arbitral award, the petitioner files proceedings invoking Section
34 of the Arbitration and Conciliation Act, 1996 (‘the 1996 Act’ for
short) before the High Court of Delhi in O.M.P.(COMM) No.391 of
2020. The High Court of Delhi is said to have allowed Section 34
petition and sets aside the arbitral award. At the instance of parties,
a fresh Arbitral Tribunal is constituted on the day the High Court
allowed Section 34 petition. Thereafter arbitration proceedings are
held and the impugned arbitral award is passed by the newly
constituted Arbitral Tribunal again directing refund of ₹2.50 crores,
interest of ₹4,01,05,479.45, future interest of ₹1,05,63,141.08 and
costs of ₹7,22,813/- aggregating to ₹7,63,91,433.53/-. The
petitioner again institutes proceedings invoking Section 34 of the
1996 Act before the High Court of Delhi challenging the later
Arbitral Award in O.M.P. (COMM) No.243 of 2023 along with an
application seeking stay of operation of impugned arbitral award.
4. During the pendency of the aforesaid proceedings, the
respondent files an application before the High Court of Delhi
seeking a direction to the petitioner to deposit the award amount.
No order is passed on the said application. During the pendency of
5
proceedings before the High Court of Delhi, the respondent
institutes impugned proceedings before concerned Court at
Bengaluru seeking execution of arbitral award. On receipt of
notice, it appears, the petitioner files objections questioning
jurisdiction and maintainability of impugned execution proceedings.
The respondent then files an application in the execution
proceedings seeking disclosure of assets both movable and
immovables owned or held by the petitioner. The concerned Court
by the impugned order dated 07-03-2025, holds that the execution
petition filed by the respondent in lieu of arbitral award is
maintainable and directs production of assets and liabilities
statement as sought. Feeling aggrieved by the action of the
concerned Court in entertaining the execution petition, the
petitioner/judgment debtor is before this Court.
5. The learned senior counsel Sri K.G. Raghavan would
vehemently contend that the arbitral award should be executed in
the same manner in which any decree of a civil Court can be
executed. He would submit that the execution petition preferred by
the decree-holder before the Commercial Court should not be
6
permitted to be entertained for reasons more than one. The learned
senior counsel submits that the statute i.e., Section 10 of the
Commercial Courts Act, 2015 (‘the Act’ for short) does not permit
filing of an execution petition before the Commercial Court which
does not have the powers to get the arbitral award executed. A
separate execution petition invoking Order XXI of the CPC is the
only way an arbitral award can be executed. He would contend that
if the present course is permitted, it would clog Commercial Courts
as is held by the Apex Court in plethora of judgments. He would
seek to place reliance upon three judgments rendered by different
High Courts contending that different High Courts have taken
different view with regard to maintainability of execution petition
before the Commercial Court to execute an arbitral award.
6. Per contra, the learned senior counsel Sri Dhananjay V.
Joshi and Sri C.Chetan appearing for the respondent/caveator
would contend that the Commercial Courts do have jurisdiction to
entertain execution petitions seeking to execute arbitral awards.
The Act itself provides all the procedures stipulated in the Code of
Civil Procedure wherever there is no provision made under the Act.
7
They would further contend that the judgments relied on by the
learned senior counsel for the petitioner are rendered by learned
single Judges of different High Courts. But, Division Benches of
different High Courts have considered this very aspect and held that
execution petition is maintainable. Against those orders of Division
Benches in two of the cases, Special Leave Petitions filed have been
rejected. Therefore, they would form followable precedent, than
what is relied on by the learned senior counsel for the petitioner.
They would seek dismissal of the petition.
7. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record. In furtherance whereof, the only issue
that falls for consideration is, as to whether, an execution
petition seeking to execute arbitral award is maintainable
before the Commercial Court under the Act?
8. The afore-narrated facts are not in dispute. To answer the
issue that has arisen for consideration, it is necessary to notice
8
certain provisions of two enactments i.e., the Act and the 1996 Act.
Section 10 of the Act reads as follows:
“10. Jurisdiction in respect of arbitration
matters.–Where the subject-matter of an arbitration is a
commercial dispute of a specified value and–
(1) If such arbitration is an international commercial
arbitration, all applications or appeals arising out of such
arbitration under the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) that have been filed in a High Court, shall
be heard and disposed of by the Commercial Division where such
Commercial Division has been constituted in such High Court.
(2) If such arbitration is other than an international
commercial arbitration, all applications or appeals arising out of
such arbitration under the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996) that have been filed on the
original side of the High Court, shall be heard and disposed of by
the Commercial Division where such Commercial Division has been
constituted in such High Court.
(3) If such arbitration is other than an
international commercial arbitration, all applications or
appeals arising out of such arbitration under the provisions
of the Arbitration and Conciliation Act, 1996 (26 of
1996) that would ordinarily lie before any principal civil
court of original jurisdiction in a district (not being a High
Court) shall be filed in, and heard and disposed of by the
Commercial Court exercising territorial jurisdiction over
such arbitration where such Commercial Court has been
constituted.”
(Emphasis supplied)
Section 10 deals with jurisdiction in respect of arbitration matters.
Sub-section (3) of Section 10 permits filing of applications or
appeals arising out of arbitration under the provisions of 1996 Act
9
that would ordinarily lie before any Principal Civil Court of original
jurisdiction. Section 16 of the Act reads as follows:
“16. Amendments to the Code of Civil Procedure,
1908 in its application to commercial disputes.–(1) The
provisions of the Code of Civil Procedure, 1908 (5 of
1908) shall, in their application to any suit in respect of a
commercial dispute of a Specified Value, stand amended in
the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court
shall follow the provisions of the Code of Civil Procedure,
1908 (5 of 1908), as amended by this Act, in the trial of a
suit in respect of a commercial dispute of a Specified Value.
(3) Where any provision of any Rule of the
jurisdictional High Court or any amendment to the Code of
Civil Procedure, 1908 (5 of 1908), by the State Government
is in conflict with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), as amended by this Act, the
provisions of the Code of Civil Procedure as amended by this
Act shall prevail.”
Section 16 makes amendments to the Code of Civil Procedure in its
application to commercial disputes.
9. Section 34 of 1996 Act is germane to be noticed. Section
34 reads as follows:
“34. Application for setting aside arbitral
award.–(1) Recourse to a Court against an arbitral award
may be made only by an application for setting aside such
award in accordance with sub-section (2) and sub-section
(3).
10
(2) An arbitral award may be set aside by the Court
only if–
(a) the party making the application establishes on the
basis of the record of the arbitral tribunal that–
(i) a party was under some incapacity; or
(ii) arbitration agreement is not valid under the law
to which the parties have subjected it or, failing
any indication thereon, under the law for the
time being in force; or
(iii) the party making the application was not given
proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not
contemplated by or not falling within the terms
of the submission to arbitration, or it contains
decisions on matters beyond the scope of the
submission to arbitration:
Provided that, if the decisions on matters
submitted to arbitration can be separated from those
not so submitted, only that part of the arbitral award
which contains decisions on matters not submitted to
arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with
the agreement of the parties, unless such
agreement was in conflict with a provision of
this Part from which the parties cannot
derogate, or, failing such agreement, was not in
accordance with this Part; or
(b) the Court finds that–
(i) the subject-matter of the dispute is not capable
of settlement by arbitration under the law for
the time being in force, or
11
(ii) the arbitral award is in conflict with the public
policy of India.
Explanation 1.–For the avoidance of any doubt,
it is clarified that an award is in conflict with the public
policy of India, only if,–
(i) the making of the award was induced or
affected by fraud or corruption or was in
violation of Section 75 or Section 81; or
(ii) it is in contravention with the fundamental
policy of Indian law; or
(iii) it is in conflict with the most basic notions of
morality or justice.
Explanation 2.–For the avoidance of doubt, the
test as to whether there is a contravention with the
fundamental policy of Indian law shall not entail a
review on the merits of the dispute.
(2-A) An arbitral award arising out of arbitrations
other than international commercial arbitrations, may also be
set aside by the Court, if the Court finds that the award is
vitiated by patent illegality appearing on the face of the
award:
Provided that an award shall not be set aside merely
on the ground of an erroneous application of the law or by
reappreciation of evidence.
(3) An application for setting aside may not be made
after three months have elapsed from the date on which the
party making that application had received the arbitral award
or, if a request had been made under Section 33, from the
date on which that request had been disposed of by the
arbitral tribunal:
Provided that if the Court is satisfied that the applicant
was prevented by sufficient cause from making the
application within the said period of three months it may
entertain the application within a further period of thirty
days, but not thereafter.
12
(4) On receipt of an application under sub-section (1),
the Court may, where it is appropriate and it is so requested
by a party, adjourn the proceedings for a period of time
determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take
such other action as in the opinion of arbitral tribunal will
eliminate the grounds for setting aside the arbitral award.
(5) An application under this section shall be filed by a
party only after issuing a prior notice to the other party and
such application shall be accompanied by an affidavit by the
applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed
of expeditiously, and in any event, within a period of one
year from the date on which the notice referred to in sub-
section (5) is served upon the other party.”
Section 36 of the Act reads as follows:
“36. Enforcement.–(1) Where the time for making an
application to set aside the arbitral award under Section 34 has
expired, then, subject to the provisions of sub-section (2), such
award shall be enforced in accordance with the provisions of the
Code of Civil Procedure, 1908 (5 of 1908), in the same manner
as if it were a decree of the court.
(2) Where an application to set aside the arbitral award
has been filed in the Court under Section 34, the filing of such
an application shall not by itself render that award
unenforceable, unless the Court grants an order of stay of the
operation of the said arbitral award in accordance with the
provisions of sub-section (3), on a separate application made for
that purpose.
(3) Upon filing of an application under sub-section (2)
for stay of the operation of the arbitral award, the Court may,
subject to such conditions as it may deem fit, grant stay of the
operation of such award for reasons to be recorded in writing:
13
Provided that the Court shall, while considering the
application for grant of stay in the case of an arbitral award for
payment of money, have due regard to the provisions for grant
of stay of a money decree under the provisions of the Code of
Civil Procedure, 1908 (5 of 1908):]50
[Provided further that where the Court is satisfied that
a prima facie case is made out that,–
(a) the arbitration agreement or contract which is
the basis of the award; or
(b) the making of the award,
was induced or effected by fraud or corruption, it shall
stay the award unconditionally pending disposal of the challenge
under Section 34 to the award.
Explanation.–For the removal of doubts, it is hereby
clarified that the above proviso shall apply to all court cases
arising out of or in relation to arbitral proceedings, irrespective
of whether the arbitral or court proceedings were commenced
prior to or after the commencement of the Arbitration and
Conciliation (Amendment) Act, 2015.
Section 34 deals with recourse against arbitral awards which also
permits making an application to execute the award. Section 36
deals with enforcement of arbitral awards and speaks of submission
of an application before the Court for enforcing the award. The
purport of the afore-quoted enactments qua the provisions noted
hereinabove would not require a deeper delving into the matter, as
several High Courts in the country have taken a certain view and
14
few of the High Court have taken a divergent view. The coalesce of
those judicial elucidations is what is necessary to be steered out in
the case at hand.
10. At the outset, I deem it appropriate to notice the
judgments relied on by the learned senior counsel for the
petitioner. Heavy reliance is placed upon two judgments rendered
by the High Court of Kerala. The High Court of Kerala in the case of
SHAJI AUGUSTINE v. CHITHRA WOODS MANORS WELFARE
ASSOCIATION1 has held as follows:
“…. …. …..
22. The next interesting question is whether the
District Court is divested of its power to 25 execute arbitral
awards after the introduction of the Commercial Courts Act.
Section 2(e) of the Arbitration Act defines ‘Court’ to be the
principal Civil Court of original jurisdiction in the District and
excludes civil courts of grade inferior to such Principal Civil
Court. Interpreting the provision the Honourable Supreme
Court in Atlanta Limited (supra) held as follows;
“24.2. Secondly, the provisions of the Arbitration
Act, leave no room for any doubt, that it is the superior-
most court exercising original civil jurisdiction, which
had been chosen to adjudicate disputes arising out of
arbitration agreements, arbitral proceedings and arbitral
awards. Undoubtedly, a “Principal Civil Court of Original
Jurisdiction in a district”, is the superior-most court
exercising original civil jurisdiction in the district over
which its jurisdiction extends. It is clear that Section
2(1)(e) of the Arbitration Act having vested jurisdiction1
2021 SCC OnLine Ker 9840
15in the “Principal Civil Court of Original Jurisdiction in a
district”, did not rest the choice of jurisdiction on courts
subordinate to that of the District Judge. Likewise, “the
High Court in exercise of its ordinary original
jurisdiction”, is the superior-most court exercising
original civil jurisdiction, within the ambit of its original
civil jurisdiction. On the same analogy and for the same
reasons, the choice of jurisdiction will clearly fall in the
realm of the High Court, wherever a High Court
exercises “ordinary original civil jurisdiction”.
23. Inasmuch as the High Court of Kerala is not
vested with ordinary original civil jurisdiction, the District
Court is the jurisdictional court to deal with matters arising
out of arbitration. As per Section 10(3) of the Commercial
Courts Act, applications or appeal arising out of an
arbitration under the provisions of the Arbitration and
Conciliation Act would ordinarily lie before any Principal Civil
Court of original jurisdiction in a District and shall be filed
and heard and disposed of by the Commercial Court
exercising territorial jurisdiction over such arbitration.
Section 15(2) stipulates that all suits and applications,
including applications under the Arbitration and Conciliation
Act relating to a commercial dispute of a specified value
pending in any civil court in any District or area in respect of
which a commercial court has been constituted, shall be
transferred to such commercial court. For easy reference,
Section 15 is extracted below;
“15. Transfer of pending cases.–(1) All suits and
applications, including applications under the Arbitration
and Conciliation Act, 1996 (26 of 1996), relating to a
commercial dispute of a Specified Value pending in a
High Court where a Commercial Division has been
constituted, shall be transferred to the Commercial
Division.
(2) All suits and applications, including
applications under the Arbitration and Conciliation Act,
1996 (26 of 1996), relating to a commercial dispute of a
specified value pending in any civil court in any district
or area in respect of which a Commercial Court has been
constituted, shall be transferred to such Commercial
Court:
16
Provided that no suit or application where the
final judgment has been reserved by the court prior to
the constitution of the Commercial Division or the
Commercial Court shall be transferred either under sub-
section (1) or sub-section (2).
(3) Where any suit or application, including an
application under the Arbitration and Conciliation Act,
1996 (26 of 1996), relating to a commercial dispute of
specified value shall stand transferred to the Commercial
Division or Commercial Court under subsection (1) or
sub-section (2), the provisions of this Act shall apply to
those procedures that were not complete at the time of
transfer.
(4) The Commercial Division or Commercial
Court, as the case may be, may hold case management
hearings in respect of such transferred suit or
application in order to prescribe new timelines or issue
such further directions as may be necessary for a
speedy and efficacious disposal of such suit or
application in accordance 22[with Order XV-A] of the
Civil Procedure Code, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule
1 of Order V of the Civil Procedure Code, 1908 (5 of
1908) shall not apply to such transferred suit or
application and the court may, in its discretion, prescribe
a new time period within which the written statement
shall be filed.
(5) In the event that such suit or application is
not transferred in the manner specified in sub-section
(1), sub-section (2) or sub-section (3), the Commercial
Appellate Division of the High Court may, on the
application of any of the parties to the suit, withdraw
such suit or application from the court before which it is
pending and transfer the same for trial or disposal to the
Commercial Division or Commercial Court, as the case
may be, having territorial jurisdiction over such suit, and
such order of transfer shall be final and binding.”
24. The proviso to Section 15(2) makes it clear that
no suit or application, where the final judgment has been
reserved by the civil court prior to the constitution of a
commercial court, need be transferred. As per sub-section
17
(3) of Section 15, once a suit or application is transferred to
the commercial court, the provisions of the Commercial
Courts Act will apply to the procedures that are incomplete.
To understand the relevance of this provision reference
ought to be made to Section 16 of the Act, which reads as
under;
“16. Amendments to the Civil Procedure Code,
1908 in its application to commercial disputes.–(1) The
provisions of the Civil Procedure Code, 1908 (5 of 1908)
shall, in their application to any suit in respect of a
commercial dispute of a Specified Value, stand amended
in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial
Court shall follow the provisions of the Civil Procedure
Code, 1908 (5 of 1908), as amended by this Act, in the
trial of a suit in respect of a commercial dispute of a
specified value.
(3) Where any provision of any Rule of the
jurisdictional High Court or any amendment to the Civil
Procedure Code, 1908, by the State Government is in
conflict with the provisions of the Civil Procedure Code,
1908 (5 of 1908), as amended by this Act, the
provisions of the Code of Civil Procedure as amended by
this Act shall prevail.”
25. Thus, the provisions of the Code of Civil
Procedure have been amended in its application to
suits in respect of commercial disputes, with the
objective of speedy disposal of cases by the
commercial courts. Interestingly, there is no
amendment to the provisions under Order XXI CPC,
dealing with execution of decrees. Therefore, as far as
execution is concerned, litigants still have to resort to
the cumbersome and time consuming process under
Order XXI CPC.
26. In Josekutty Joseph (supra) the Division Bench
interpreted the meaning, scope and ambit of Sections 8 and
18 of the Family Courts Act, Section 8 excludes the
jurisdiction of all other courts in respect of suits or
proceedings falling within the jurisdiction of Family Courts
18
under Section 7, and Section 18 stipulates that a decree or
an order passed by a Family Court shall have the same force
and effect as a decree or order of a civil court. The relevant
paragraph of the judgment is extracted hereunder;
“7. It is true that by virtue of the provisions
contained in Sec. 7(1)(a) of the Act, the Family Court
shall have the power to exercise all the jurisdiction that
was hitherto exercised by the Civil Court in respect of
suits and proceedings of the nature referred to in the
Explanation. This means that whatever powers
(including execution) which the Civil Court could have
exercised in respect of such suits or proceedings stand
vested in the Family Court upon its establishment. But
the Family Court can exercise such powers (including
execution) only in respect of a suit or proceeding which
comes before it either by way of a statutory transfer or
by way of fresh institution as contemplated by Sec. 8 of
the Act. When the suit or proceeding referred to in the
Explanation to Section 7(1) of the Act can only be a suit
or proceeding of an original nature instituted for the
purpose of getting a decree, order or declaration as
envisaged therein and which cannot necessarily include
an execution petition, there cannot be a transfer under
Section 8(c)(i) of the Act of a petition for executing a
decree pending before the Civil Court on the date of
establishment of the Family Court. It is one thing to say
that the Family Court can exercise all the powers
including execution in respect of such suit or proceeding
by virtue of Section 7(1)(a) of the Act, but it is another
thing to say that the statutory transfer under Sec. 8(c)
of the Act takes within its sweep even petitions for
execution of decrees already passed by the Civil Court
and pending before such Civil Court on the date of
establishment of the Family Court for the area
concerned. Section 18 of the Act pertains only to
decrees or orders passed by the Family Court and
subsection (1) thereof only enacts a fiction by which a
decree or order passed by the Family Court is deemed to
be one passed by the Civil Court for the purpose of
execution. It is significant in this context to note that
there is no corresponding provision in the Act treating
the decree passed by the Civil Court as one passed by
the Family Court. We are unable, in this connection, to
accept the petitioner’s contention that the deeming
provision under Section 7(1)(b) of the Act is to treat the
19Civil Courts’ decrees as one passed by the Family Court.
In our view, the deeming provision thereunder is only to
enable the Family Court to exercise the jurisdiction in
such manner as the Civil Court would have exercised in
a suit or other proceeding of such nature. The deeming
provision is intended to indicate the procedure to be
followed while dealing with such suit or proceeding and
nothing else. As along as the decree passed by the Civil
Court prior to the establishment of the Family Court is
not deemed to be one passed by the Family Court,
Section 18 of the Act which only deals with the
execution of the decrees and orders passed by the
Family Court, cannot have any application. If so, the
only provision which can be applied to such a decree
passed by the Civil Court is Order 21, Rule 10, C.P.C.
which reads as under:–
“Application for execution– Where the holder
of a decree desires to execute it, he shall apply to the
Court which passed the decree or to the officer (if any)
appointed in this behalf, or if the decree has been sent
under the provisions hereinbefore contained to another
Court, then to such Court or to the proper officer
thereof.
Thus, it is the Court which passed the decree
which is to be approached for executing the decree.
Indisputably, the Court which passed the decree in this
case is the Subordinate Judges’ Court. Pala where the
execution petition (E.P. 19/1997) was pending on the
date of establishment of the Family Court for the area.
E.P. 19/1997 not being an original proceeding-does not
attract the statutory transfer under Sec. 8(c) of the
Act. Resultantly, the Sub Court, Pala continues to have
jurisdiction to deal with E.P. 19/1997 and bring it to a
logical conclusion, notwithstanding the establishment
of the Family Court for the area.”
27. As observed earlier, the procedure for
execution is not mentioned anywhere in the
Commercial Courts Act and there is nothing to indicate
that the jurisdiction of other courts with respect to
pending execution matters stands excluded. The
absence of provision regarding execution or specific
exclusion of jurisdiction of other courts with respect to
execution procedures and the conscious omission to
amend Order XXI CPC for hastening the process of
execution can only lead to the conclusion that the
20
word “application” in Section 15(1) does not include
an ‘execution application/petition’ and the words,
‘those procedures that are not complete at the time of
transfer’ in Section 15(3) of the Commercial Courts Act
does not take in procedure relating to execution of
decrees/awards. For the aforementioned reasons, I
respectfully disagree with the dictum laid down by the
Gujarat High Court in Jagmohan Bel (supra), insofar as
it holds that the commercial court at the District level
constituted under sub-section (1) of Section 3 of the
Commercial Courts Act would be the court competent
to execute awards declared under Section 34 of the
Arbitration Act.
… … …
29. Indisputably, the property, which is the subject
matter of the dispute, is situated within the jurisdictional
limits of the District Court, Thodupuzha. In Sundaram
Finance Ltd. v. Abdul Samad, [(2018) 3 SCC 622], it has
been categorically held that the enforcement of an award
through its execution can be filed anywhere in the country
where such decree can be executed and it is not necessary to
obtain a transfer of the decree from the court which would
have jurisdiction over the arbitral proceedings.”
(Emphasis supplied)
The High Court of Kerala, in a later judgment in the case of BETA
EXIM LOGISTICS (P) LIMITED v. CENTRAL RAILSIDE
WAREHOUSE CO., LIMITED2 has held as follows:
“…. …. ….
16. I reminisce the observations of the Honourable
Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. K.S.
Infraspace LLP [(2020) 15 SCC 585], while dealing with the C.C.
Act, wherein it held thus:
2
2023 SCC OnLine Ker 1392
21“36. A perusal of the Statement of Objects and
Reasons of the Commercial Courts Act, 2015 and the
various amendments to the Civil Procedure Code and
insertion of new rules to the Code applicable to suits of
commercial disputes show that it has been enacted for the
purpose of providing an early disposal of high value
commercial disputes. A purposive interpretation of the
Statement of Objects and Reasons and various
amendments to the Civil Procedure Code leaves no room
for doubt that the provisions of the Act require to be
strictly construed. If the provisions are given a liberal
interpretation, the object behind constitution of
Commercial Division of Courts viz. putting the matter on
fast track and speedy resolution of commercial disputes,
will be defeated. If we take a closer look at the Statement
of Objects and Reasons, words such as “early” and
“speedy” have been incorporated and reiterated. The
object shall be fulfilled only if the provisions of the Act are
interpreted in a narrow sense and not hampered by the
usual procedural delays plaguing our traditional legal
system”.
17. Thus, if a more expansive interpretation is given
to the word application falling under Section 15 of the
C.C. Act, to include execution petitions also, then
necessarily all the execution petitions pending before all
the civil courts falling within the ken of the C.C. Act will
have to be transferred to the Commercial Courts, which in
turn will clog the special courts with such matters.
Moreover, no practical purpose will be served by such
transfer because the Special Courts are not conferred
with any additional power than that of the Civil Courts, to
speed track execution proceedings, as execution
proceedings have been omitted in the schedule attached
to the C.C. Act. Without a faster timeline provided under
the C.C. Act, to enforce an award, it is immaterial
whether the award is executed by the Civil Court or the
Commercial Court.
…. …. ….
22. On a conspectus of the pleadings and materials on
record, the law on the point and the findings rendered
above, this Court is of the definite view that the impugned
22
order is erroneous and is liable to be interfered with by this
Court under Article 227 of the Constitution of India, which I
do.”
(Emphasis supplied)
Long before afore-quoted two judgments, the High Court of
Chhattisgarh in the case of SOUTH EASTERN COAL FIELDS
LIMITED v. M/s TIRUPATI CONSTRUCTION DISTRICT
BURHAR3 has held as follows:
“…. …. ….
6. In our considered opinion, in view of the proviso, to
subsection (2) of Section 15, the execution application
cannot be transferred to Commercial Court. The District
Judge has not committed any illegality while rejecting the
applicant’s application for transfer of the execution case to
the Commercial Court.
7. Accordingly, application is dismissed.”
In all the three judgments, the High Courts of Kerala and
Chhattisgarh would hold that, execution petition before Commercial
Courts would not be maintainable. The arbitral awards are to be
executed in a manner like the decree passed by a competent civil
Court is executed under XXI of the CPC. The afore-quoted
judgments base their elucidations on one solitary fact that Section
3
2018 SCC OnLine Chh 63
23
10 of the Act does not permit filing of an execution petition nor the
procedure for execution. These are the judgments that held that
execution petition would not be maintainable and these are the
ones that are relied on by the learned senior counsel appearing for
the petitioner.
11. The learned counsel for the respondent Sri C. Chetan
relies on the judgments rendered by different High Courts, either
single Judges or Division Benches. The High Court of Gujarat in the
judgment rendered in the case of VIJAY COTTON AND FIBER
COMPANY v. AGARWAL COTTON SPINNING PRIVATE
LIMITED4 has held as follows:
“…. …. ….
10. Having regard to Section 2(1)(b), commercial
court would be the one constituted under sub-section (1) of
Section 3 of the Commercial Courts Act. Sub-section (1) of
Section 3 contemplates constitution of a commercial court at
district level only and not at the hierarchy lower than that.
Therefore, the contemplation of appointment of the
experienced persons to be the Judge or Judges of a
commercial Court either at the level of District Judge or a
Court below the District Judge would only mean the
appointment of a person to the commercial court constituted
under sub-section (1) of Section 3 and not the commercial
Court lower than that hierarchy. In other words, if Judge
appointed to the commercial Court constituted under sub-
4
2019 SCC OnLine Guj 7075
24
section (1) of Section 3 belongs to the cadre below the
District Judge, he would still be the constituent of the
commercial Court at the district level.
… … …
13. Section 15 of the Commercial Courts Act
contemplates the transfer of all suits and applications
including applications under Arbitration and Conciliation Act,
1996 pending in the High Court where commercial division is
constituted or pending in any civil court in any District or
area in respect of which establishment of the commercial
courts have been constituted; subject however to the proviso
to sub-section (2) of section 15, to the commercial courts or
commercial division, as the case may be.
14. By virtue of sub-section (3) of Section 15
procedures; in the case involving commercial disputes;
which were incomplete, at the time of transfer of the
cases would be replaced by the procedures under the
Commercial Courts Act. Having regard to the
provisions of the Commercial Courts Act, more
particularly, section 10 which contemplates the
jurisdiction of the commercial courts in relation to the
arbitration other than international commercial
arbitration with which this Court is concerned, as also
having regard to Section 15of the Commercial Courts
Act contemplating transfer of pending suits to
commercial Courts/commercial divisions, the obvious
necessary corollary insofar as execution petitions are
concerned, would be that the commercial court of
competent jurisdiction would be the Court competent
to execute the decree and not the ordinary civil court
constituted under Gujarat Civil Courts Act.
15. At the cost of repetition, it is required to be re-
emphasized that even if the Judge of a lower hierarchy than
the District Judge is posted in the commercial Court under
sub-section (3) of section 3, the commercial Court would be
of District level; without any lower level hierarchy under it
and therefore, the question of transfer of an execution
petition under Section 39 of the CPC to a court of lower
hierarchy than the District level would not arise. No such
question would arise even under Gujarat Civil Courts Act
25
since the Court established under Section 3 of Commercial
Courts Act is not the Court constituted under the Gujarat
Civil Courts Act. Therefore, in a case where the commercial
Court of a district level is headed by the Judge lower than
the hierarchy of District Judge, the District Judge under the
Gujarat Civil Courts Act would have no authority to transfer
the execution petition under Section 39 of the CPC to the
Court of lower hierarchy.
… … …
17. The sum and substance of the above discussion is
that in State of Gujarat where the commercial Courts are
constituted at District level, the execution petition would be
maintainable in that court; as contemplated in the
notification referred herein above irrespective of its Judge
being lower in hierarchy than the District Judge. Since the
commercial court lower in hierarchy than the district level is
not contemplated under subsection (1) of Section 3, there
would be no question of institution of the execution petition
with the District Judge and transfer by him under
Section 39 of CPC to the Court lower in hierarchy than the
such District Judge. The Principal Civil Court in the District
Court as defined in Section 2(1)(e) of the Arbitration and
Conciliation Act read with Section 3 of the Commercial Courts
Act, in respect of the commercial disputes, would be the
Commercial Court at the district level as constituted under
sub-section (1) of Section 3 of the later Act and would be the
court competent to execute awards declared under Section
34 of the Arbitration Act other than those relating to
international arbitration. By virtue of the notification above-
referred, as also by virtue of the provisions referred to herein
above, the Court contemplated in the notification,
irrespective of the designation of the Judge would be the
commercial Court at district level; and in absence of
contemplation of Commercial Court of the lower hierarchy
than the District level, in the Commercial Court Act, it would
execute the decree without transferring it under
Section 39 of CPC.”
(Emphasis supplied)
26
The High Court of Rajasthan in ESS KAY FINCORP LIMITED v.
SURESH CHOUDHARY5 has held as follows:
“…. …. ….
16. Section 10(3) and 15(2) of the Commercial Courts
Act both are relevant for deciding the controversy involved in
the present matters and they are reproduced as under:
“10. Jurisdiction in respect of arbitration
matters.- Where the subject-matter of an arbitration is a
commercial dispute of a Specified Value and–
(1) xxxxx
(2) xxxxx
(3) If such arbitration is other than an
international commercial arbitration, all applications or
appeals arising out of such arbitration under the
provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996) that would ordinarily lie before any
principal civil court of original jurisdiction in a district
(not being a High Court) shall be filed in, and heard and
disposed of by the Commercial Court exercising
territorial jurisdiction over such arbitration where such
Commercial Court has been constituted.”
“15. Transfer of pending cases.-(1) xxxxxxxxxxx
(2) All suits and applications, including
applications under the Arbitration and Conciliation Act,
1996 (26 of 1996), relating to a commercial dispute of a
Specified Value pending in any civil court in any district
or area in respect of which a Commercial Court has been
constituted, shall be transferred to such Commercial
Court:
Provided that no suit or application where the
final judgment has been reserved by the Court prior to
the constitution of the Commercial Division or the
Commercial Court shall be transferred either under sub-
section (1) or sub-section (2).
(3) xxxxx
(4) xxxxx
(5) xxxxx”
5
2019 SCC OnLine Raj 7770
27
17. A conjoint reading of Section 10(3) and
15(2) of the Commercial Courts Act makes it clear that
an application under Section 36 of the Arbitration Act,
seeking execution of award, satisfies the requirement
of “being application arising out of such arbitration
under the provisions of the Act of 1996”. If such
application is pending before any Principal Civil Court
of original jurisdiction in a district, the same shall be
transferred to Commercial Court exercising territorial
jurisdiction over such arbitration where such
Commercial Court has been constituted. In view of
Section 10(3) of the Commercial Courts Act, since the
awards in the present set of cases have been rendered
in arbitral proceedings, their execution applications
filed under Section 36 of the Arbitration Act having
regard to provisions of Section 15(3) of the
Commercial Courts Act, which contemplates transfer of
all such pending applications to Commercial Court, as
a legal corollary thereto, would also be liable to be
filed and maintained before the Commercial Court and
not the ordinary Civil Court/Principal Court of District
Judge.
… … …
19. In view of above, we answer the question of law
formulated in the beginning of this judgment in the terms
that the Commercial Court constituted under Section 3(i) of
the Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015, as defined in
Section 2(b) of that Act, would be the only competent Court
to execute an arbitral award on a “commercial dispute”
passed under the Arbitration and Conciliation Act, 1996 and
not the Principal Civil Court having the original jurisdiction in
the District i.e. the Court of District and Sessions Judge as
defined under Section 2(1)(e) of the Arbitration and
Conciliation Act, 1996.”
(Emphasis supplied)
28
A little later, the High Court of Delhi in the case of DELHI
CHEMICAL AND PHARMACEUTICAL WORKS PVT.LTD. v.
HIMGIRI REALTORS PVT.LTD.6 has held as follows:
“…. …. ….
28. As far as the contention of the senior counsels for
the judgment debtors, of proceedings for execution of an
arbitral award as a decree being not within the jurisdiction of
the Commercial Court/Commercial Division of this Court is
concerned, Section 10 of the Commercial Courts Act inter
alia provides that where the subject matter of an arbitration
is a commercial dispute of a specified value, all applications
or appeals arising out of such an arbitration under the
provisions of the Arbitration Act that have been filed on the
original side of the Court shall be heard and disposed of by
the Commercial Division, where such Commercial Division
has been constituted in the High Court. It is not in dispute
that the subject matter of the arbitration, award whereof is
under execution, was of the specified value. The arbitration
concerned adjudication of rights and obligations arising
between the decree holder and the judgment debtors from
agreements entered into between them with respect to an
industrial plot of land at Sahibabad. While it was the
contention of the decree holder that it was an agreement for
sale of the said land by the judgment debtors to the decree
holder, the judgment debtors contended the agreement to be
a Collaboration Agreement whereunder the decree holder
had agreed to raise construction on the land of the judgment
debtors for the consideration of sharing a portion of the
constructed area. The arbitral award negates the contention
of the decree holder, of the agreement being of sale and has
held the decree holder to be only entitled to reimbursement
of the amounts incurred pursuant to the agreement. Such a
dispute, under clauses (vi) and (vii) of Section 2(1)(c) of the
Commercial Courts Act read with Explanation (a) thereto,
constitutes a commercial dispute. Thus the subject matter of
6
2021 SCC OnLine Del 3603
29
arbitration in the present case was a commercial dispute of a
specified value, within the meaning of Section 10 of the
Arbitration Act. To be fair to the senior counsels for the
judgment debtors, they did not seriously controvert the
aforesaid. Their contention however was that since this
appeal does not arise out of arbitration under the provisions
of the Arbitration Act, within the meaning of Section 10(2) of
the Arbitration Act, the execution was not within the
jurisdiction of the Commercial Division and the appeal
thereagainst does not lie to the Commercial Appellate
Division, under Section 13 of the Commercial Courts Act. It
was further contended that the Arbitration Act is concerned
only with the arbitration proceedings and challenge to the
arbitral award and is not concerned with execution of the
arbitral award, with the Act, in Section 36 merely providing
for the award to be executed as a decree of the Civil Court in
accordance with the provisions of the CPC. It was contended
that the Execution Petition is thus not an application arising
out of arbitration under the Arbitration Act, to be entertained
by the Commercial Division of this Court.
29. Needless to state, this question also was not
raised before and has not been considered by the
Commercial Division in any of the orders in the subject
execution proceedings.
30. Though in appeal, ordinarily we would not allow a
new plea to be urged but finding the same to be of general
importance, having application in a large number of cases,
proceed to do so.
31. Section 2(1)(c) defines “commercial disputes” as a
“dispute” arising out of agreements, transactions,
relationships, of the nature specified in various clauses
thereunder. Sections 6 and 7 of the Commercial Courts Act
vest jurisdiction in the Commercial Court/Commercial
Division, to try “all suits and applications relating to
commercial disputes of a specified value”.
32. According to the senior counsels for the judgment
debtors, the jurisdiction of the Commercial
Courts/Commercial Divisions is only over suits/arbitrations,
subject matter whereof qualifies as a commercial dispute and
30
not over proceedings for execution of the decrees passed in
the said suits or over enforcement of awards passed in the
said arbitrations. The question which arises is, whether a
claim made by one against the other and controverted by the
other, on adjudication thereof, whether by the Court or by
the Arbitrator, ceases to be a “dispute”, for it to be said that
the proceedings for execution of adjudication of a
commercial dispute, whether by way of a decree or an
arbitral award, do not qualify as a “dispute”.
33. Section 2(1)(i) of the Commercial Courts Act
defines “Specified Value” in relation to a commercial dispute,
as the value of a subject matter in respect of a suit as
determined in accordance with Section 12. Reference therein
is thus expressly to a “suit”, as distinct from an “execution”.
Section 12 however refers to the specified value of the
subject matter of the commercial dispute in a suit, appeal or
application. Thereby, the ambit of specified value is
increased, from that in Section 2(1)(i), with reference to a
“suit” alone, to an appeal or an application also. Finally,
Sections 6 and 7, while prescribing the jurisdiction of
Commercial Courts and Commercial Divisions, prescribe the
said jurisdiction, to extend to try all suits and applications
relating to a commercial dispute, again, vesting the
jurisdiction in the Commercial Courts/Commercial Divisions,
not only to try “suits” but also “applications”.
34. The question which arises is, whether Execution
Petitions are “applications” within the meaning of Sections
10, 12, 6 and 7 of the Commercial Courts Act.
35. “Dispute” is defined as a disagreement or
argument between two people. “Application” is defined as a
formal written request.
36. It is not as if, on adjudication of a dispute,
resulting in a judgment/decree of a Court or award of an
Arbitral Tribunal, the “dispute” between the parties comes to
an end or nothing remains to be adjudicated between the
parties. Section 47 of the CPC, in Part-II titled “Execution”
itself, in this respect provides that all questions arising
between the parties to the suit in which the decree was
passed, or their representatives, and relating to execution,
31
discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate
suit. It is evident therefrom that a judgment or a decree of
the Court or the award of an Arbitral Tribunal, do not put an
end to the “dispute” between the parties and it is not as if
execution is merely an administrative task, with no
adjudication involved. It would be incongruous to hold that
the jurisdiction of the Commercial Courts/Commercial
Divisions extends only to adjudication of commercial disputes
till the stage of adjudication and not to adjudication of
commercial disputes arising in the course of execution. Once
it is so, the word “dispute” in Section 2(1)(c) would extend
to adjudication of disputes arising during execution of arbitral
awards subject whereof falls within the jurisdiction of the
Commercial Courts Act and the Commercial Court and
Commercial Division would also have jurisdiction over the
applications for execution of arbitral awards of a specified
value, subject matter whereof was a commercial dispute.
37. There is another aspect. A claimant in a dispute is
not interested merely in adjudication thereof. The claimant is
interested in delivery to him, of what he claims to be due
and what has been adjudicated to be due to him from the
opposite party. The Commercial Courts Act, as laid down
in HPL (India) Ltd. supra also, was enacted to provide for
speedy disposal of high value commercial disputes and their
early resolution. The resolution of a commercial dispute is
not complete, till the fruit thereof is in the hands of
whosoever is found to be entitled thereto. Supreme Court
also recently in Rahul S. Shah v. Jinendra Kumar
Gandhi 2021 SCC OnLine SC 341 has lamented on the
troubles of the decree holder, in not being able to enjoy the
fruits of litigation on account of inordinate delay caused
during the process of execution of the decree and has
referred to the observations in a judgment of 1872 vintage of
the Privy Council in the General Manager of the Raja
Durbhunga v. Maharaja CoomarRamaput Singh 1872 SCC
OnLine PC 16, that the actual difficulties of a litigant in India
begin when he has obtained a decree. This being the state of
affairs, to hold that the jurisdiction of the Commercial
Courts/Commercial Division does not extend to execution but
ends with adjudication, would defeat the very purpose and
object of the Commercial Courts Act i.e. of speedy disposal
32
and resolution of commercial disputes of a specified value.
To hold that the Commercial Courts/Commercial
Divisions would not have jurisdiction over applications
for execution of a judgment or decree or for
enforcement of an arbitral award, subject matter
whereof was a commercial dispute, would in our
opinion sound the death knell for the objective behind
setting up of the Commercial Courts and the
Commercial Divisions.”
(Emphasis supplied)
The High Court of Andhra Pradesh in the case of OBULAPURAM
MINING COMPANY PRIVATE LIMITED v. R.K. MINING
PRIVATE LIMITED7has held as follows:
“…. …. ….
20. In view of these contentions and the legal position,
this Court is proposing to examine Section 15 of the
Commercial Courts Act and Order 21 CPC. The contention
urged by the petitioner is that the Commercial Court alone
should execute a decree above the specified value while the
contention of the respondent is that the civil court alone
should execute such a decree as the Commercial Courts Act
does not deal with Order 21 C.P.C,, at all. The meaning of
the word “application” in Section 15 of the Act also assumes
importance.
21. Section 15 (1) of the Act deals with the
commercial disputes pending in High Court. It is stated that
all the suits and applications shall be transferred to the
Commercial Division. Section 15 (2) is as follows:
“15 (2) All suits and applications, including
applications under the Arbitration and Conciliation Act,
1996 (26 of 1996), relating to a commercial dispute of a
Specified Value pending in any civil court in any district7
AIR 2024 AP 30
33or area in respect of which a Commercial Court has been
constituted, shall be transferred to such Commercial
Court:
Provided that no suit or application where the
final judgment has been reserved by the Court prior to
the constitution of the Commercial Division or the
Commercial Court shall be transferred either under sub-
section (1) or sub-section (2).”
22. Section 15 (3) states that when suit or any
application including an application under Arbitration and
Conciliation Act, 1996 stands transferred to the Commercial
Court the provisions of – “this Act shall apply to those
procedures that were not completed at the time of transfer”.
23. Section 6 is to the following effect –
“6. Jurisdiction of Commercial Court.–The
Commercial Court shall have jurisdiction to try all suits
and applications relating to a commercial dispute of a
Specified Value arising out of the entire territory of the
State over which it has been vested territorial
jurisdiction.”
24. Chapter-VI of the Commercial Court Act deals with
the amendments to provisions of Code of Civil Procedure
1908. Section 16 (1) of the Act says that the provisions of
CPC shall in their application to any suit be amended as
specified in the schedule. Section 16 (2) of the Act states
that Commercial Courts shall follow “the provisions of CPC as
amended by this Court in the trial of a suit in respect of
Commercial dispute”. The Schedule, which is specified in the
Act, in particular amends the 1st schedule of the CPC. In the
Schedule of the Act, Clause 4 (A) deals with Order 5 of the
CPC (Time for written statement). Clause 4 (B) deals with
pleadings in a commercial dispute (Order 6). Clause 4 (C)
deals with Order 7 Rule 2 (Again plaint). Clause 4 (D) deals
with Order 8 (written statement); Order 7. is also suitably
amended to deal with disclosure, discovery and inspection of
documents in suits before the Commercial Division of a High
court or a commercial Court. Order 11 Rule 1 deals with the
plaintiffs list of documents etc. Order 11 Rule 7 deals with
defendants list of documents and further deals with
34
discovery of interrogatories, inspection, admission and denial
of documents. Order 13A dealing with summary judgment is
also amended.
25. A reading of these sections and amendments in
seriatim shows that the intention of the legislature was only
to modify arid streamline the procedures and practices
relating to suits and applications in suits etc., which are
pending for disposal.
26. The heading of Chapter VI of the Act is –
“Amendments to the Provisions of the Code of Civil
Procedure, 1908″. The amendments to the CPC, refer to the
1st schedule and specifically to Orders 5, 6, 8, 11, 13 (A) of
CPC etc., and in addition a newly incorporated Order 15(A) is
brought into force. All of them deal with trial and disposal of
a suit only. None of the other provisions of the CPC are
touched or amended including Order 21 CPC.
27. In the opinion of this Court this deliberate silence
by the legislature, in spite of the need for a law on the
subject for quick and efficient disposal of the cases, including
commercial disputes, being on everyone’s mind makes it
very clear that the legislature in its wisdom decided to speed
up the trial and disposal of the cases in the commercial court
alone. Time and again the Hon’ble Supreme Court of India
and various courts have spoken about the need for quick
disposal of domestic and’ international commercial disputes.
Hence a conscious effort was made by the Legislature to
change the provisions of CPC regarding the trial and disposal
of cases for a quicker disposal of the suits and applications.
In this Court’s opinion and as per settled law the assumption
is that the legislature did not make a mistake. It did what it
set out to do – to speed up trials. The silence or failure to
refer to Order 21 does not mean that the Commercial Court
cannot execute a decree. A purposive interpretation has to
be given, to the provisions, of the Act. If it is not so
interpreted the Commercial Courts will be powerless in many
aspects. If the arguments of the learned senior counsel for
the respondent are further extended and as other provisions
of C.P.C. are also not touched upon/ referred to it would
mean- that the Commercial Court cannot add or delete
parties (Order-I); cannot bring on record the legal
35
representatives (Order 22); cannot grant injunctions (Order
39); order attachment or arrest before judgment (Order 38)
and so on. These are a few illustrative aspects that are
touched upon. This would virtually render the Commercial
Courts non-effective and virtually defeat their
purpose/objective. Can it be said that since Order 38 or
Order 39 are not mentioned the Commercial Court cannot
grant an interim order? This would lead to a collapse of these
Courts.
28. The special purpose – namely the quick disposal of
commercial cases- and the purpose behind the Actis also
strengthened by the contents of Section 6 which states that
the Commercial Court can be conferred jurisdiction over the
entire State unlike the restriction in Section 15 to Section 20
of CPC etc. The appeals pending in the Commercial Appeal
Division are also to be disposed within six months as per Sec
16 of the Act. The clear bar against the revision application
or petition against interlocutory application notwithstanding
anything to the contrary in law in Section 9 of the Act,
further strengthens this Court’s conclusions that the
emphasis was on quick and early disposal of cases.
29) Section 16 of the Act is as follows
“16. Amendments to the Code of Civil Procedure, 1908
in its application to commercial disputes’.–(1) The
provisions of the Code of Civil Procedure, 1908 (5 of
1908) shall, in their application to any suit in respect of
a commercial dispute of a Specified Value, stand
amended in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall
follow the provisions of the Code of Civil Procedure,
1908 (5 of 1908), as amended by this Act, in the trial of
a suit in respect of a commercial dispute of a Specified
Value.
(3) Where any provision of any Rule of the jurisdictional
High Court or any amendment to the Code of Civil
Procedure, 1908 (5 of 1908), by the State Government
is in conflict with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), as amended by this Act,
36
the provisions of the Code of Civil Procedure as
amended by this Act shall prevail.”
30. Section 16(3) makes it clear that the amendments
to the CPC made by this Act shall “prevail” over amendments
made by the State Government or over the jurisdictional
High Courts Rules. This is again done to facilitate quick
disposal of suits and applications. Even the High Court Rules
have to give way to these amendments.
31) Further, in this Court’s opinion the word
‘application’ occurring in Section 15 of the Act is also not
limited to original applications only or to application in suits.
Support can be drawn from the provisions, of Order 21 CPC
itself dealing with execution. Order 21 Rule 10 starts with the
words – “Application” for Execution. Rule 11 says an oral
“application” is permissible. Order 21 Rule 11(2) talks of a
written “application”. Similarly Rules llA, 12, 13, 16 talk of
“applications” for execution. The use of the words suits and
applications including applications under the Arbitration Act
1996″ make it clear that it is not merely limited to suits and
arbitration applications only. An inclusive definition is given
to include all “applications” under Section 15. The intention
of the Legislature is also clear from a reading of Section 10
of the Commercial Courts Act, which deals with applications
and appeals under the Arbitration Act. They are dealt with
under this Section. This Court, therefore, holds that the word
“application” in Section 15 includes execution applications
also. The inclusive definition in Section 15(1) makes this
clear.
32. Even with regard to enforcement and execution
this Court feels that the Arbitration Act, 1996 made the issue
clear since the CPC is not applicable per se to the
proceedings before an Arbitration Tribunal. Section 36 of the
Arbitration and Conciliation Act as it stood earlier was as
follows: –
“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
37Code of Civil Procedure 1908 (Act 5 of 1908) in the
same manner as if it were a decree of the Court.”
33. Section 36 after amendment by Act 3 of 2016 is as
follows:
36. Enforcement.-(1) Where the time for making an
application to set aside the arbitral award under section
34 has expired, then, subject to the provisions of sub
section (2), such award shall be enforced in accordance
with the provisions of the Code of Civil 24 Procedure,
1908 (5 of 19081, in the same manner as if it were a
decree of the court.
In view of the non-applicability of C.P.C. to Arbitrations this
clarity was given with respect to execution of Awards in a
Civil Court. On the other hand this 2015 Act is called the
Commercial Courts Act itself.
34. The purpose and intent of the Act is to provide for
the constitution of Commercial Courts for Commercial
disputes of specified value adjudicating and matters
connected therewith and incidental thereto. Hence, a
purposive and meaningful interpretation must be given which
means that quick disposal, of commercial cases would
include quick disposal of execution applications for enforcing
the judgments. passed. The conclusions of the Hon’ble
Supreme Court of India in Jaycee Housing Private limited
case (5 supra) in para 10and 11 also supports this view.
“10. Thus, the Objects and’ Reasons of Commercial
Courts Act, 2015 is to provide for speedy disposal of the
commercial disputes which includes the arbitration
proceedings. To achieve the said Objects, the legislature
in its wisdom has specifically conferred the jurisdiction in
respect of arbitration matters as per Section 10 of the
Act, 2015. At this stage, it is required to be noted that
the Act, 2015 is the Act later in time and therefore when
the Act, 2015 has been enacted, more particularly
Sections 3 & 10, there was already a provision contained
in Section 2(l)(e) of the Act, 1996. As per settled
position of law, it is to be presumed that while enacting
the subsequent law, the legislature is conscious of the
provisions of the Act prior in time and therefore the later
Act shall prevail. It is also required to be noted that
38even as per Section 15 of the Act, 2015, all suits and
applications including applications under the Act, 1996,
relating to a commercial dispute of specified value shall
have to be transferred to the Commercial Court. Even as
per Section 21 of the Act, 2015, Act, 2015 shall have
overriding effect. It provides that save as otherwise
provided, the provisions of this Act shall have effect,
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
11. Therefore, considering the afore-stated provisions of
the Act, 2015 and the Objects and Reasons for which
the Act, 2015 has been enacted and the Commercial
Courts, Commercial Division and Commercial Appellate
Division in the High Courts are established for speedy
disposal of the commercial disputes including the
arbitration disputes. Sections 3 & 10 of the Act, 2015
shall prevail and all applications or appeals arising out of
arbitration under the provisions of Act, 1996, other than
international commercial arbitration, shall be filed in and
heard and disposed of by the Commercial Courts,
exercising the territorial jurisdiction over such arbitration
where such commercial courts have been constituted. If
the submission on behalf of the Appellants that of Act, 1
civil other than the international commercial arbitration,
shall lie before the principal civil Court of a district, in
that case, not only the Objects and Reasons of
enactment of Act, 2015 and establishment of
commercial courts shall be frustrated, even Sections 3,
10 & 15 shall become otiose and nugatory. If the
submission on behalf of the Appellants is accepted, in
that case, though with respect to other commercial
disputes, the applications or appeals shall lie before the
commercial courts established and constituted Under
Section 3 of Act, 2015, with respect to arbitration
proceedings, the applications or appeals shall lie before
the principal civil Court of a district. There cannot be two
fora with respect to different commercial disputes.
Under the circumstances, notification issued by the
State of Odisha issued in consultation with the High
Court of Orissa to confer jurisdiction upon the court of
learned Civil judge (Senior Division) designated as
Commercial Court to decide the applications or appeals
arising out of arbitration under the provisions of Act,
1996 cannot be said to be illegal and bad in law. On the
contrary, the same can be said to be absolutely in
39consonance with Sections 3 & 10 of Act, 2.015. We are
in complete agreement with the view taken by the High
Court holding so.”
35. There cannot be two courts/fora:- one for the
dispute resolution and one for execution of the decree
passed.
36. Section 38 of C.P.C. clearly states that the decree
may be executed by the Court that passed it or the Court to
which it was sent for execution. Therefore, this Court holds
that a. commercial court can execute a decree passed by
itself or even execute a decree sent for execution under
Section 15 of the Commercial Courts Act or by transfer from
another Commercial Court.
37. For all the above mentioned reasons it is held that
the Commercial Court has the jurisdiction to execute its own
decree or a decree transferred/sent to it, where the value is
above the specified limit.
38. This Court respectfully agrees with the views of
the Kerala and Chhattisgarh High Courts and respectfully
disagrees with the view taken by the other learned Judges of
the Gujarat, Delhi and other High Courts.
39. In conclusion this Court would like to again rely
upon para 35 of the Division Bench judgment of the Gujarat
High Court reported in OCI Corporation case (11 supra). The
question that was specifically raised in that matter was
whether the Execution Petition would fall within the ambit of
Section 15 (2) of the Commercial Courts Act and which court
would have jurisdiction. This was ultimately answered by the
Division Bench by considering the law on the subject. In
para-10 the following question as posted and in para-11 the
answer is given as follows:
“10. Now, next question posed for consideration of this
Court is whether execution petitions pending before the
concerned District Court as on 23.10.2015 which are
filed for execution/enforcement of the foreign award are
required to be transferred, and if yes, to which Court?
40
11. The sum and substance of the above discussion
would be,“(1) Where the subject matter of an arbitration is a
commercial dispute of a specified value and if such
arbitration is international commercial arbitration, all
the applications or appeals arising out of such
arbitration under the provisions of the Arbitration and
Conciliation Act, 1996 shall be heard, decided and
disposed of by the Commercial Division where such
commercial Division has been constituted in the High
Court i.e. in the present case High Court of Gujarat.
(2) Where the subject matter of an arbitration is a
commercial dispute but not of a specified value and if
such arbitration is international commercial arbitration,
considering the provisions of Arbitration and
Conciliation (Amendment) Act, 2015 the same shall be
heard, decided and disposed of by the concerned High
Court.
(3) Where the subject matter of an arbitration is a
commercial dispute of a specified value and if such
arbitration is other than international arbitration, all
the applications, or appeals arising, out of such
arbitration under the provisions of the Arbitration and
Conciliation Act, 1996 shall be filed in and heard,
decided and disposed of by the Commercial Court
exercising territorial jurisdiction over such arbitration
where such commercial court has been constituted.”
Considering section 15 of the Commercial Courts Act, all the
applications/appeals in. question under the Arbitration and
Conciliation Act; 1996, therefore are required to be
transferred to the concerned Commercial Division of the High
Court of Gujarat or before the Gujarat High Court or before
the concerned commercial court and as observed
hereinabove and as the case may be.”
40. The SEP filed against this judgment was also
dismissed. The essence and ratio of this judgment is that
arbitration Awards can be executed by the Commercial Court
/ Commercial Division of the High Court respectively. This
view supports the conclusion of this Court.”
41
The Allahabad High Court in BHARAT PETROLEUM
CORPORATION LIMITED v. ANOOP KUMAR MODI8 has held as
follows:
“…. ….. …
7. The counsel for the petitioner places reliance on the
judgment of the Kerala High Court in case of Beta Exim
Logistics (P) Ltd. versus Central Railside Warehouse
Co., Ltd. reported in 2023 SCC Online Ker 1392 as well as
the judgment of the Supreme Court in the case of
Sundaram Finance Limited versus Abdul Samad and
another reported in (2018) 3 Supreme Court Cases 622 as
also the judgement of the Supreme Court in the case of
State of West Bengal versus Associated
Contractors(2015) 1 SCC 32.
8. The counsel for the respondent, on the other hand,
justifies the filing of the execution proceedings at Lucknow
and argues that in view of the law laid down and clarified by
the Supreme Court in the Case of Sundaram Finance
Limited (supra) and in the case of Cheran Properties
Limited versus Kasturi and sons limited reported in
AIRONLINE 2018 SC 1229, it is the option of the award
holder to file executions at any place of their choice. He also
relies upon the judgement of this Court in the case
Hasmukh Prajapati versus Jai Prakash Associates Ltd.
reported in 2022 (3) ALJ 166.
… … …
11. The submission of the counsel for the petitioner
that an execution petition which lies under Section 36 of the
Arbitration and Conciliation Act would not fall within the
phrase ‘all applications or appeals arising out of such
arbitration ‘ and as the legislature in its wisdom, did not
specify the enforcement petition under Section 36 of the
Arbitration and Conciliation Act while drafting the provisions
of Section 10(3) of the Commercial Court Act, clearly the
intent of the legislature was that the enforcement petition
8
Neutral Citation No.2023:AHC-LKO:68875 AFR
42
would lie before a ordinary civil court defined under Section
2(c) of the Arbitration and Conciliation Act, 1996 and not
before a Commercial Court.
12. The distinction as proposed to be argued for
enforcement provided under Section 36 is excluded from the
use of word ‘Application’ referred to in Section 10(3) of the
Commercial Court Act, is on the face of it not acceptable as
on a plain reading of provisions contained in Section 10(3) as
quoted hereinabove, it is provided that other than
International Commercial Arbitration, all ‘applications’ or
‘appeals’ arising out of such arbitration under the provisions
of the 1996 Act which would ordinarily lies before any
Principal Civil Court or original jurisdiction in a district shall
be filed in and heard and disposed of by the Commercial
Court exercising the territorial jurisdiction.
13. The counsel for the petitioner, to buttress his
submission on that point draws my attention to Section 16 of
the Commercial Court Act to argue that the legislature
deliberately, did not propose any amendment to the
provisions of court of civil procedure with regard to order 21,
which is the procedure prescribed for execution of degrees
and this aspect of the legislature not prescribing any
amendment in order 21, should crystallize the argument
raised by the petitioner. The said argument of the counsel for
the petitioner merits rejection for sole reason that Section 42
of the Arbitration Act clarifies that any application under this
part has to be made in a court and thereafter that court
alone shall have jurisdiction over the arbitral proceedings
and all subsequent applications arising out that agreement
and arbitral proceedings shall be made in that court and to
no other court. Although Section 32 of the Arbitration and
Conciliation Act provides for termination of arbitral
proceedings on the passing of the final award, however, the
use of the phrase any application under this part used in
Section 42 clearly refers to the filing of an application under
Part-I of the Arbitration and Conciliation Act which includes
Sections 36 under which the execution of award is provided
for. Even otherwise, the execution of a decree is provided for
and can be initiated by moving an application under Order 21
thus the word ‘application’, refers to in Section 10(3) would
include the application for execution to be filed for execution
43
of an award in terms of mandate of Section 36 of the
Arbitration and Conciliation Act. Thus, for the said reasoning,
the first contention of the counsel for the petitioner merits
rejection and is accordingly rejected.
… … …
16. As regards the judgment cited by the counsel for
the petitioner in the case of Beta Exim Logistics (P) Ltd.
versus Central Railside Warehouse Co., Ltd. reported in
2023 SCC Online Ker 1392, the Court while dealing with the
issue although took notice of mandatory provision of the
Commercial Court Act, however, recorded in paragraphs 17
and 20 as under:-
17. Thus, if a more expensive interpretation is given to
the word application falling under Section 15 of the C.C. Act, to
include execution petitions also, then necessarily all the
execution petitions pending before all the civil courts falling
within the ken of the C.C. Act will have to be transferred to the
Commercial Courts, which in turn will clog the special courts
with such matters. Moreover, no practical purpose will be
served by such transfer because the Special Courts are not
conferred with any additional power than that of the Civil
Courts, to speed track execution proceedings, as execution
proceedings have been omitted in the schedule attached to the
C.C. Act. Without a faster timeline provided under the C.C.
Act, to enforce an award, it is immaterial whether the award is
executed by the Civil Court or the Commercial Court.
20. Therefore, the Court of the District Judge
Ernakulam, had gone wrong in transferring the execution
petition which was not a pending matter at the time of
notifying the C.C. Act. Furthermore, the District Court has the
jurisdiction to entertain the execution petition because the
petitioner resides within the jurisdiction of the said Court and
is a Court superior to the Commercial Court. Hence, no
prejudice is caused to the respondent in the execution petition
being decided by the District Court.”
The High Court of Gujarat in the case of ARUN KUMAR
JAGATRAMKA v. ULTRABULK A/S9 has held as follows:
9
2022 SCC OnLine Guj 2767
44“…. …. ….
22. Proceeding to consider the issue on further merits,
the question about jurisdiction of the Commercial Court to
entertain the execution application has been answered in the
reasoning and ratio of the decisions of the courts. Before the
Division Bench of this Court in OCI Corporation v. Kandla
Export Corporation, [(2017) 1 GLH 383: (AIR 2017 NOC 468
(Guj)], the issue was about transfer of execution petitions
pending before the District Court, Gandhidham to the
appropriate Commercial Court. It was the contention that the
Parliament did not intend to apply provisions of Commercial
Courts Act, 2015 to the execution of the foreign award which
was sought to be executed in those cases. The execution
proceedings were in relation to the arbitral award, and the
contention was raised for with reference to the definition of
the ‘commercial dispute’ contained in Section 2(c) of the
Commercial Courts Act, that it cannot be said that there was
any ‘commercial dispute’ pending at the execution stage in
as much as commercial dispute which had arisen between
the parties was already decided and adjudicated.
23. While summing up the final decision, the Division
Bench inter alia held and directed that, [Para 63(3)]“Where the subject matter of an arbitration is a
commercial dispute of a specified value and if such
arbitration is other than international arbitration, all the
application or appeals arising out of such arbitration
under the provisions of the Arbitration and Conciliation
Act, 1996 shall be filed in and heard, decided and
disposed of by the Commercial Court exercising
territorial jurisdiction over such arbitration where such
commercial court has been constituted.”
24. In Vadodara MahanagarSevaSadan formally
known as Municipal Corporation v. M.S. Khurana Engineering
Limited, being Special Civil Application No. 13736 of 2018,
the petitioner Corporation had challenged order of the
Commercial Court in relation to the award of the arbitrator
for which the execution petition was filed before the
Commercial Court. The contention was raised on behalf of
the petitioner that though the application for setting aside
45the arbitral award may be pending before the Commercial
Court, the execution petition of the contractor would not be
competent as it was for the amount below Rs. 1 Crore.
25. The Division Bench stated and observed,
“Section 37 of the CPC pertains to definition of
Court which passed a decree and provides that the
expression “Court which passed a decree”, or words to
that effect, shall, in relation to the execution of decrees,
unless there is anything repugnant in the subject pr.
context, be deemed to include-[a] where, the decree to
be executed has been passed in the exercise of
appellate jurisdiction, the Court of first instance, and [b]
where the Court of first instance has ceased to exist or
to have jurisdiction to execute it, the Court which, if the
suit wherein the decree was passed was instituted at the
time of making the application for the execution of the
decree, would have jurisdiction to try such suit.
Section 38 of the CPC pertains to “Court by which
decree may be executed” and provides that a decree
may be executed either by the Court which passed it, or
by the Court to which it is sent for execution. In terms
of Section 38 of the CPC, thus, a decree is executable by
a Court which passed it.”
26. It was observed that since the award was
enforceable in terms of the Code of the Civil Procedure in the
same manner as it was the decree of the Court, “the Court
having jurisdiction over the subject matter could be the court
competent to execute it as per the Section 38 of the CPC.” It
was concluded that,
“Since in the present case, jurisdiction of the
subject matter which was part of the arbitration
proceedings ordinarily lies with the Commercial Court
and it was because of this reason that the application for
setting aside the arbitral award was transferred to the
Commercial Court, it was the Commercial Court which
was competent to enforce the arbitral award; as if it
were a decree of that Court.”
27. The decision of Delhi High Court in Bayer
Intellectual Property GMBH v. Symed Laboratories, [2019
SCC OnLine Del 7410: (AIROnline 2019 Del 2648)],
46
addressed and answered the very question. The consent
decree passed before the Commercial Court was sought to
be executed. The High Court observed, (Para 28)
“As far as the contention of the senior counsels
for the judgment debtors, of proceedings for execution
of an arbitral award as a decree being not within the
jurisdiction of the Commercial Court/Commercial
Division of this Court is concerned, Section 10 of the
Commercial Courts Act inter alia provides that where the
subject matter of an arbitration is a commercial dispute
of a specified value, all applications or appeals arising
out of such an arbitration under the provisions of the
Arbitration Act that have been filed on the original side
of the Court shall be heard and disposed of by the
Commercial Division, where such Commercial Division
has been constituted in the High Court. It is not in
dispute that the subject matter of the arbitration, award
whereof is under execution, was of the specified value.”
28. It was the contention canvassed before the Delhi
High Court on behalf of the judgment-debtor that the
jurisdiction of the Commercial Courts or Commercial
Divisions is only over suits or arbitrations, subject matter
whereof qualifies as a commercial dispute and not over
proceedings of decrees passed in the said suits over
enforcement of awards passed in the arbitrations. The Delhi
High Court stated, (Para 33)
“Section 2(1)(i) of the Commercial Courts Act
defines “Specified Value” in relation to a commercial
dispute, as the value of a subject matter in respect of a
suit as determined in accordance with Section 12.
Reference therein is thus expressly to a “suit”, as
distinct from an “execution”. Section 12 however refers
to the specified value of the subject matter of the
commercial dispute in a suit, appeal or application.
Thereby, the ambit of specified value is increased, from
that in Section 2(1)(i), with reference to a “suit” alone,
to an appeal or an application also. Finally, Sections 6
and 7, while prescribing the jurisdiction of Commercial
Courts and Commercial Divisions, prescribe the said
jurisdiction, to extend to try all suits and applications
relating to a commercial dispute, again, vesting the
47
jurisdiction in the Commercial Courts/Commercial
Divisions, not only to try “suits” but also “applications.”
29. The question dealt with by the Delhi High Court
was also whether the execution proceedings are
‘applications’ within the meaning of Sections Nos. 6, 7, 10
and 12 of the Commercial Courts Act. The Court stated that
‘dispute’ is a set of disagreement or an argument between
the two parties over an issue. An ‘application’ is formal
written request madeto the court in relation to such issue
under the dispute. It was further observed by the High
Court, (Para 36)
“It is not as if, on adjudication of a dispute,
resulting in a judgment/decree of a Court or award of an
Arbitral Tribunal, the “dispute” between the parties
comes to an end or nothing remains to be adjudicated
between the parties. Section 47 of the CPC, in Part-II
titled “Execution” itself, in this respect provides that all
questions arising between the parties to the suit in
which the decree was passed, or their representatives,
and relating to execution, discharge or satisfaction of
the decree, shall be determined by the Court executing
the decree and not by a separate suit. It is evident
therefrom that a judgment or a decree of the Court or
the award of an Arbitral Tribunal, do not put an end to
the “dispute” between the parties and it is not as if
execution is merely an administrative task, with no
adjudication involved.”
30. The Delhi High Court rightly stated that an
irreconcilable and incongruous situation would be obtained if
it is held otherwise that Commercial Court does not have the
powers to proceed with the execution. (Para 36)
“It would be incongruous to hold that the
jurisdiction of the Commercial Courts/Commercial
Divisions extends only to adjudication of commercial
disputes till the stage of adjudication and not to
adjudication of commercial disputes arising in the course
of execution. Once it is so, the word “dispute” in Section
2(1)(c) would extend to adjudication of disputes arising
during execution of arbitral awards subject whereof falls
within the jurisdiction of the Commercial Courts Act and
the Commercial Court and Commercial Division would
48
also have jurisdiction over the applications for execution
of arbitral awards of a specified value, subject matter
whereof was a commercial dispute.”
31. We fully concur with the reasons and decision of
the Delhi High Court.
…. …. ….
38. The jurisdiction of the commercial court under
Section 6 of the Commercial Courts Act extend to try all suits
and applications relating to commercial dispute of specified
value. The word ‘specified value’ has been defined under
Section 2(i) of the Commercial Courts Act. The word
‘applications’ under Section 6 would include execution
applications and also proceedings relating to commercial
dispute of specified value. The jurisdiction of the commercial
court therefore necessarily extends to the execution
application arising from the judgment and decree of the
commercial court.
39. There remains hardly any substance in the
submission that since the provisions relating to execution
were not amended while amending certain provisions of CPC
as per the Section 16 of the Commercial Courts Act, the
commercial court does not have the jurisdiction to try and
decide the execution petitions. Merely because there is no
amendment in relation to the execution provisions brought
about and certain other provisions of CPC were amended to
be applied to the commercial suits, it would not mean or
imply that the commercial court does not have the power to
execute.”
One common factor that runs through all the judgments relied on
by the learned counsel for the respondent/decree-holder is that
most of them are by the Division Benches. The judgments of High
Courts of Delhi, Gujarat, Andhra Pradesh and Rajasthan are all
49
rendered by Division Benches. Against judgments rendered by two
High Courts i.e., High Courts of Rajasthan and Delhi, Special Leave
Petition have been dismissed in limine.
12. On a coalesce of the judgments relied on by the learned
senior counsel for the petitioner and that of the respondent, the
unmistakable inference is, my respectful agreement with the
judgments rendered by the Division Benches of various High
Courts, in particular, the one that is rendered in ARUN KUMAR
JAGATRAMKA supra which considers the entire spectrum of law
and holds that Section 10 is clear that execution petition also can
be filed to execute a decree i.e., arbitral award before the
Commercial Court, as the characteristics of a commercial dispute is
not lost. Same is that of the Division Benches of other High Courts.
In the light of unequivocal elucidation of law and the fact that
elucidation of Gujarat High Court having become final, as the SLP
preferred being dismissed, I deem it appropriate to follow the
same. The unmistakable inference of all the narrations hereinabove
is that the execution petition before the Commercial Court would
become entertainable and maintainable. The submission that they
50
would clog commercial Courts, as held by the Apex Court in
plethora of judgments; that would not sway the elucidation of law
or out-weigh the elucidation of law the Division Benches of the
several High Courts quoted supra.
13. For the aforesaid reasons, finding no merit in the
challenge, the challenge is repelled and the petition is dismissed.
Interim order of any kind if operating, shall stand dissolved.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:SS
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