TMI Blog2019 (11) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... und resolution of commercial disputes. It cannot be the legislative intent to provide a speedy remedy of arbitration only till the award is passed, with no priority when the award is to be put to execution. The purpose of the arbitral process is not only to expedite the declaration of an award on paper but the actual receipt of the claim. The impugned order dated 24 August 2018 passed by the learned Single Judge of this Court being neither under Order XLIII of the Code of Civil Procedure nor appealable under Section 37 of the Act of 1996, these appeals are not maintainable - Commercial Appeals are dismissed as not maintainable. - COMMERCIAL APPEAL NOS. 109, 111 & 409 OF 2019, CHAMBER SUMMONS (L) NO. 911 OF 2018 And NOTICE OF MOTION (L) NOS. 238, 243 & 244 OF 2019 - - - Dated:- 9-8-2019 - MR PRADEEP NANDRAJOG C.J. AND NITIN JAMDAR, J. For The Appellant : Mr Shivam Bhagwati, Shahzad Khajotia, Rohit Kapadia, Sr. Adv. and G.S. Godbole For The Respondent : Mr Aspi Chinoy, Sr. Adv., Gaurav Joshi, Sr. Advs., Jatin Pore and Ms. Ankita Agrawal JUDGMENT Nitin Jamdar, J. These three Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a violation of FEMA. On 19 January 2018, the learned Single Judge appointed court receiver regarding the land and permitted the Respondents to request the Receiver to take formal possession of the said 22.95 acres of land at Kothrud, Pune. The Appellants filed Chamber Summons Nos. 160 of 2018 in the execution proceedings and challenged the validity of the Consent Award on the ground it violated the FDI policy and FEMA Regulations. The Appellants also filed one more chamber summons, being Chamber Summons No. 161 of 2018 seeking a modification of the order dated 19 January 2018 passed by the Hon'ble Court. 6. In these execution proceeding parties again arrived at a settlement. On 21 February 2018, parties tendered handwritten consent terms. Formal consent terms were signed and executed and were tendered before the Court on 22 February 2018. The Appellants gave undertakings to withdraw the challenges to the consent award and the order dated 22 February 2018, and it was so incorporated in consent terms. It was agreed that that the Appellants would pay ₹ 260 crores to the Respondents in four tranches within a period of one year in settlement of the dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Kakade, by filing an affidavit in reply to the execution application, took an objection to the territorial jurisdiction since all the assets were in Pune. The ground of violation of FEMA was once again taken up. Kakade Constructions also sought to question the lack of territorial jurisdiction of the executing court. 9. The chamber summons was argued at length before the learned Single Judge as can be noticed from the impugned order. The question that was debated before the learned Single Judge was as to whether the Court can appoint a receiver in execution only in respect of property within the territorial jurisdiction of the executing Court. This issue arose because the properties on which receiver was sought to be appointed were situated at Pune. The learned Single Judge, after having considered the law on subject, held that it was open to the Court to appoint a receiver in respect of properties situated outside its jurisdiction. The learned Single Judge also commented on the conduct of the Appellants of having agreed under the consent terms and thereafter not honoring the same. By order dated 24 August 2018, the learned Single Judge allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act. 13. It is stated in the appeal memos that appeal is maintainable in respect of the orders enumerated in Order XLIII of the Code of Civil Procedure as expressly provided under Section 13 of the Act of 2015. The Appellants contend that the order of appointment of receiver under Order XL Rule 1 of the Code is made appealable by virtue of Order XLIII Rule 1 (s) and therefore appeals are maintainable. Appellants also contend that a receiver can also be appointed in execution proceedings under section 51(d) of the Code and if section 13 of the Act of 2015 is meaningfully read, the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908). Thus Section 36 of the Act of 1996 states that award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. 16. The ambit of Section 36 of the Act of 1996 came up for consideration of the Division Bench of this Court in the case of Jet Airways (India) Ltd. v. Subrata Roy Sahara 2012 (2) AIR Bom 855. An appeal was filed challenging the order passed by the learned Single Judge in the execution application regarding an arbitral award. When the appeal came up for consideration, an objection was taken by the Respondents as regards the maintainability. The Appeal was admitted, and the question of maintainability was kept open. At the hearing of the appeal, the Division Bench went into the question of maintainability of the appeals. The applicability of Clause 15 of the Letters Patent Appeal of High Court, Bombay was also considered. The Court framed a question as to whether the order passed by the learned Single Judge in respect of the execution of the award w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Abdul Samad [2018] 3 SCC 622. The decision in the case of Sundaram Finance was rendered on 15 February 2018 after the decision of the Division Bench in the case of Jet Airways which was on 17 October 2011. According to the Appellants, the Supreme Court has held that the proceedings under Section 36 of the Act of 1996 are to be construed as proceedings under the Code of Civil Procedure, and therefore the decision in Jet Airways is no longer a good law. 20. In the case of Sundaram Finance, the appellant before the Supreme Court had granted a loan to the respondent. A dispute arose over the defaults committed, and an arbitrator was appointed. The execution proceedings were filed in the jurisdiction of the Courts of Morena, Madhya Pradesh under Section 47 r/w. Section 151 and Order XXI Rule 27 of the Code of Civil Procedure. It was the case of the appellant that the award being enforceable as a decree under Section 36 of the Act of 1996, the execution proceedings had to be filed in the Civil Court. The Civil Court held that it lacked jurisdiction and the execution proceedings ought to have been first filed before the Court of competent jurisdiction in Tamil Nadu, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premise that the impugned orders cannot be considered as having been passed under Code of Civil Procedure to make it appealable. 22. Now to consider whether the impugned order being under the act 1996 is appealable under that Act. An important decision on this issue is of the Supreme Court in the case of Kandla Export Corpn. v. OCI Corpn. [2018] 14 SCC 715 rendered on 7 February 2018. In this case, an execution petition in respect of foreign award was filed under Section 48 of the Act of 1996 by the respondents before the District Court, Gandhidham, Kutch. The appellants filed their objection to the petition. The High Court transferred the execution petition to the Commercial Division of High Court of Gujarat. The High Court of Gujarat dismissed the objections and allowed the execution petition. When the appeal was filed, the Commercial Appellate Division dismissed the appeal holding that no appeal was provided under the Act of 2015. In this factual backdrop, the Supreme Court analysed the provisions of the Act of 2015 and the Act of 1996. The Supreme Court emphasized on the proviso to section 13(1) of the Act of 2011 and held that primary purpose of the proviso was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002] 5 SCC 510. In this case, an issue as regards maintainability of a revision to the High Court against the order of the Civil Court under Section 37 of the Act of 1996 came up for consideration. The Supreme Court held that there is no specific exclusion of the Code in the Act of 1996 and when there was no expressed exclusion, it could not be held by inference that the Code of Civil Procedure is not applicable. This discussion however was in the context of a revision as the Supreme Court explained that the power of revision under Section 115 is a different power than an appellate power. The power of revision is in nature of superintendence to keep subordinate courts within the bounds of their jurisdiction. The Supreme Court held that the approach of the revisional court under Section 115 of the Code is not the same as an appeal. The Supreme Court held that the right of a second appeal to the High Court has been expressly taken away by Section 37(3) of the Act of 1996, but the power of revision having been given for a different purpose and not specifically excluded would be available. This decision does not assist the Appellants. 24. The learned Single Judge by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, they provided that both Sanjay Kakade and Usha Kakade for themselves and on behalf of the Kakade Construction Company would be jointly and severally liable to make payment under the consent award, and the order and the consent award regarding the Respondents and the Kakade Construction Company would also be executable against Sanjay Kakade and Usha Kakade. Noting these consent terms dated 22 February 2018, the Arbitration proceedings were terminated by the Tribunal on 14 March 2018. Because of this position, there is no merit in the contention raised by the Appellant - Usha Kakade in Appeal (Lodg.) No. 111 of 2019 that her case be separately treated. 27. The Respondents have placed before us order passed by the Division Bench of this Court in the case of Vikram V. Vyas v. Madhusudan G. Vyas 2016 SCC OnLine Bom 12709. Following the decision in the case of Jet Airways, the Division Bench passed an order on 26 October 2016 in an appeal challenging the order passed in execution of an arbitral award, holding the same to be not maintainable. We have not been shown any contrary order or decision. Now the Supreme Court, in the case of Kandla Export, has clarified the po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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