Delhi District Court
M/S Omaxe Ltd vs M/S Superior Finelease Ltd on 12 November, 2025
EX No. 168/2022
M/S OMAXE LTD
Vs.
M/S SUPERIOR FINELEASE LTD
CNR No. DLWT01-0016695-2022
12.11.2025
Present: None.
1.The Judgment Debtor has raised objections to the maintainability of the present execution petition and the same are being decided in terms of this Order.
2. The present execution petition has been filed by the Decree Holder under Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of the arbitral award dated 30.09.2011, passed by Ld. Sole Arbitrator in arbitration case titled 'M/s Omax Ltd. Vs. M/s Superior Finlease Ltd.'
3. The notice of the execution petition was issued to the Judgment Debtor and the Judgment Debtor entered appearance and filed objections to the enforcement of the award in question. The JD has raised number of factual objections, in terms of its reply and this Court has expressed doubts about the sustainability of the aforesaid objections on the factual aspects, however subsequently, a principal contention has been raised about the maintainability of the present execution petition on the ground that the dispute, M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 1 of 17 Ex. No.15/2021 being subject matter of the present proceedings, is commercial in nature and therefore, the present execution petition is not maintainable.
4. Ld. Counsels for the parties have addressed their submissions on the aspect of nature of the dispute in question. Ld. Counsel for the DH has submitted that the agreement between the DH and the JD pertains to an ordinary sale and purchase of land and thus is not commercial in nature. Ld. Counsel for the DH has relied upon the judgment passed by the Hon'ble Supreme Court of India in "Amba Lal Sarabhai Enterprises Ltd. Vs. A.S. Infraspace LLP Ltd.: 2019 (13) SCR 605" and contended that mere likely future use of the immovable property in question would not add any commercial colour to the dispute subsequently arisen thereunder. Ld. Counsel for the DH has further relied upon the judgment passed by the Hon'ble High Court of Kerela in "M/s Beta Exim Logistics (P) Ltd. vs. M/s Central Railside Warehouse Co. Ltd. (07.03.2023): OP (C) No.2400/2022", in order to contend that the execution petitions are not application falling within purview of the Commercial Courts Act, 2015 and therefore, therefore even if the dispute is assumed to be commercial in nature, the execution proceedings of an award can be entertained by a Civil Court.
5. Ld. Counsel for the JD has submitted that the dispute is commercial in nature and the JD has filed objections under M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 2 of 17 Ex. No.15/2021 Section 34 of the Arbitration and Conciliation Act, 1996 before the Court of Ld. Commercial Court Judge and therefore, this Court does not have jurisdiction to entertain and adjudicate the present execution petition. Ld. Counsel for the JD has not relied upon any judicial precedent.
6. I have heard the Ld. Counsels for the parties. I have perused the record. The first and foremost question to be decided is the nature of dispute in question. The DH has the copy of the award dated 30.09.2011. The DH has subsequently also filed the copy of the Memorandum of Understanding dated 09.05.2006, which is the agreement, containing the contract and arbitration clause between the parties, from which the dispute in question and award under enforcement have arisen. The perusal of the Memorandum of Understanding dated 09.05.2006 reveals that both the DH and JD are commercial entities and are engaged in the business of real estate. The aforesaid fact is not itself conclusive that dispute under the contract is a commercial one. It has been contended by the DH that the MoU dated 09.05.2006 is an ordinary agreement for sale and purchase of the land and further the future likely use of the property would not invite the application of provisions of the Commercial Courts, if the property is not used for commercial purpose. The reliance is being placed upon Amba Lal Sarabhai (supra).
7. However, if the aforesaid MoU is perused, the facts, rights, M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 3 of 17 Ex. No.15/2021 duties/mutual obligations and transactions to be performed are not limited to only sale or purchase of land and therefore, the agreement in question is distinguishable from the agreement in issue in the case of Amba Lal Sarabhai (supra). The Memorandum of Understanding dated 09.05.2006 is not a simple sale and purchase agreement, however it is a full fledge collaboration agreement. In terms of the aforesaid agreement, the JD has agreed to purchase immovable property from various land owners to the extent of approximately 70 bighas and further agreed to transfer the aforesaid land to the DH. It is stated in the agreement that the JD has approached the DH and has offered to purchase/participate in the above- said proposed land to set up a residential township project. The JD has agreed to get all the required permissions and sanctions from the concerned government for purchase of the land. It is agreed by the parties in terms of clause 11 of MoU dated 09.05.2006 that the DH shall hand over 5500 sq. feet constructed fully furnished area per acre on the proposed land under the collaboration agreement to the JD within the time period given under the approved layout plan to develop the township project by the authority concerned and the remaining constructed area shall be kept by the DH for its disposal as per its discretion. It is further the terms of the agreement that if the constructed area, falling in the share of the JD, was sold by the DH or through its broker, then the JD would be liable to pay the brokerage on actual basis on that M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 4 of 17 Ex. No.15/2021 area. It is also stated in the agreement that the JD's contribution for collaboration would be only on the proposed land. The Clause No. 12 further speaks about transfer of the management of the company. The clause No. 11, 12 and 13 are being reproduced hereinbelow:
"11. That it is agreed between the parties that the First Party shall hand over 5500 sq. ft. (Five Hundred Only) constructed fully finished area per acre on the proposed land under the collaboration Agreement to the Second Party within the timer period given under the approved layout plan to develop the township project by the Authority Concern and the remaining constructed area shall b kept by the First Party for disposal off it as per its own discretion and value. The Second Party has not objection in this regard. However it is made clear if the constructed area, falling in the share of the Second Party, shall be sold out by the First Party or through its broker then the Second Party shall be liable to pay the brokerage on actual basis on that area. The Second Party contribution for collaboration shall be only on the proposed land.
12. The Second Party do hereby agree to transfer the management of the Company in which the sale deed(s) for said land is to be registered and transfer the entire shares of the said Company free from all encumbrances and further agree and undertake not to create and third party interest in the said land nor against the shares of the said Company, after receiving the full and final payment as agreed in this MOU by way of current and post dated cheque(s).
13. That it is agreed that after the execution and registration of the sale deed in respect of the said land, the advance M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 5 of 17 Ex. No.15/2021 amount of Rs.51,00,000/- (Rupees Fifty one Lac Only) shall be transfer under collaboration Agreement as security and the same shall be adjusted/refunded at the time of final settlement of account."
8. If the above-referred clauses of the MoU dated 09.05.2006 are read with other clauses of the same, then the MoU cannot be termed to be an ordinary sale and purchase agreement and the same is a comprehensive collaboration agreement for sale, purchase, construction and development of land, sharing of constructed portions and sale of the same and applicable brokerage for such sale and obligations further extends to transfer of the management of the company. Therefore, the MoU dated 09.05.2006 is a construction and infrastructure Contract under Section 2 (1)(c) (vi) of the Commercial Courts Act, 2015 and also falls within purview of Section 2(1)(c)(xi) of the Act as joint venture agreement. The specified value of the claim in the statement of claim is more than Rs.3,00,000/- and the present execution petition is filed on 22.02.2022, i.e., subsequent to the coming of Commercial Courts Act, 2015 into effect. Therefore, the dispute, being subject matter of the present execution petition, is commercial in nature.
9. Ld. Counsel for the DH has further submitted that an execution petition cannot be entertained by the Commercial Courts and therefore, the present petition is maintainable before this Court. The reliance is placed upon the judgment M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 6 of 17 Ex. No.15/2021 passed by the Hon'ble High Court of Kerala in M/s Beta Exim Logistics (supra). It has been held by the Hon'ble Single Judge Bench in the aforesaid judgment that an execution application is not an application within the meaning of the Commercial Courts Act, 2015 and therefore, the same can be entertained by Civil Court. The aforesaid view has been taken by following another judgment passed by Hon'ble Single Judge Bench of Hon'ble High Cour of Kerala.
10. The aforesaid issue has also been considered by the Hon'ble Division Bench of Hon'ble High Court of Delhi in "Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Ors. vs. Himgiri Realtors Pvt. Ltd. and Ors. (05.07.2021) :
2021/DHC/1928-DB" and it has been held that execution petitions or applications for enforcement of commercial awards are applications falling within purview of the Commercial Courts Act, 2015 and such executions applications can be enterained and executed only the Commercial Courts. The relevant observations of the Hon'ble Division Bench in Delhi Chemicals (supra) are being reproduced hereinbelow:
"26. However before proceeding to the merits of the matter, we have to also deal with, (A) the contention of the senior counsels for the judgment debtors, with respect to the very jurisdiction of the Commercial Courts/Commercial Divisions, to entertain petitions for execution of arbitral awards, even if in respect of commercial disputes; and, (B) our second query M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 7 of 17 Ex. No.15/2021 aforesaid vis-a-vis applicability of the proviso after Section 13(1A) of the Commercial Courts Act, whether only to Section 13(1A) or to also Section 13(1).
27. As far as the latter of the aforesaid two is concerned, both, Section 13(1) and Section 13(1A) use the same expression i.e. "judgment or order", with the only difference being, that Section 13(1) provides for appeals against the judgment or order of a Commercial Court below the level of a District Judge, to the Commercial Appellate Court and Section 13(1A) provides for appeal against the judgment or order of a Commercial Court at the level of the District Judge exercising Original Civil Jurisdiction or the Commercial Division of the High Court. The first part of Section 13 was amended vide the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018 with effect from 3rd May, 2018. Prior to the amendment, Section 13(1) provided for appeal against the decision of a Commercial Court or Commercial Division of the High Court to the Commercial Appellate Division of the High Court. The amendment to Section 13, while splitting up the erstwhile sub-section (1) of Section 13 into two subsections, 13(1) and 13(1A) as aforesaid, did not alter the proviso thereto, and the amended proviso is in pari materia to erstwhile proviso to Section 13(1). Though in Delhi there are no Commercial Courts below the level of the District Judge but since both, Section 13(1) and Section 13(1A) provide for appeals arising from commercial disputes and there being nothing in the proviso to indicate that the same is applicable only to Section 13(1A), we conclude that the proviso applies to both, Section 13(1) as well as Section 13(1A).
28. As far as the contention of the senior counsels for the judgment debtors, of proceedings for execution of an M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 8 of 17 Ex. No.15/2021 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 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 M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 9 of 17 Ex. No.15/2021 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 M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 10 of 17 Ex. No.15/2021 Courts/Commercial Divisions is only over suits/arbitrations, subject matter whereof qualifies as a commercial dispute and 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 M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 11 of 17 Ex. No.15/2021 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, 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 M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 12 of 17 Ex. No.15/2021 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 Vs. Jinendra Kumar Gandhi 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 Vs. Maharaja Coomar Ramaput Singh, 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 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.
38. One of us (Rajiv Sahai Endlaw, J.) sitting singly, in Bayer Intellectual Property GMBH Vs. Symed Laboratories Ltd. also held that if the decree is of a Commercial Court, its execution will lie in a Commercial Court only and would not lie in an Ordinary Civil Court which has jurisdiction to entertain suits of a noncommercial nature and that an application or execution of a decree in a commercial suit would lie in a Commercial Court only.
M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 13 of 17 Ex. No.15/2021
39. Order XXI Rule 11(2) of the CPC provides that every 'application' for execution of a decree shall be in writing, signed and verified. Thus the CPC, in accordance wherewith an arbitral award is to be executed/enforced, envisages such execution to be by way of an 'application' and since the jurisdiction of the Commercial Courts/Commercial Divisions extends vide Sections 6 and 7 of the Commercial Courts Act extends, besides over suits, also over applications relating to commercial disputes, such jurisdiction would also extend over execution applications. Similarly, in respect of arbitration matters subject matter whereof is a commercial dispute, the jurisdiction of the Commercial Courts/Commercial Divisions, vide Section 10(2) extends to "...all applications ....arising out of such arbitration". Since "dispute" does not come to an end till what has been found due in arbitration to the claimant is in the hands of the claimant, an application for enforcement of the arbitral award arises from arbitration, within the meaning of Section 10(2) of the Commercial Courts Act. Section 36 of the Arbitration Act provides for enforcement of the arbitral award in accordance with the provisions of the CPC, in the same manner as if it were a decree of the Court. Execution of a decree of the Court, per Section 38 of the CPC, has to be by the same Court which passed the decree. Since the jurisdiction over arbitrations subject matter whereof is a commercial dispute, is of the Commercial Courts/Commercial Divisions, applying Section 38 of the CPC, the jurisdiction for enforcement of awards of arbitration subject matter whereof is a commercial dispute, has to be of the Commercial Courts/Commercial Divisions.
40. The argument of the senior counsels for the judgment debtors, that Commercial Courts/Commercial Divisions do not have jurisdiction over executions because there is no specified value of the execution M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 14 of 17 Ex. No.15/2021 applications also stands negated vide Section 38 of the CPC which provides for jurisdiction for execution to be of the same Court which passed the decree. The "specified value" has been defined in Section 2(i) of the Commercial Courts Act, of the commercial dispute and an application for execution, as aforesaid, arises therefrom.
41. We are thus unable to accept the arguments of the senior counsels for the judgment debtors that the application for execution of an arbitral award subject matter whereof was a commercial dispute does not lie before the Commercial Court or the Commercial Division and lies before the ordinary original civil court and this appeal would thus not be governed by the provisions of Section 13 of the Commercial Courts Act.
42. During the hearing, we had also wondered whether holding that the appeals arising from orders made in the course of execution proceeding to be also governed by Section 13 of the Commercial Courts Act would result in no appeal whatsoever lying from any order or judgment in a proceeding for execution of a judgment, decree or arbitral award in a commercial dispute. We however find it to be not so. Rules 46H and 103 of Order XXI of the CPC provide for adjudication of the disputes specified therein to be having the force of a decree and which would then be appealable as a judgment within the meaning of Section 13 of the Commercial Courts Act, in accordance with HPL (India) Ltd. supra. Similarly, it is not as if Order XLIII of the CPC, to orders specified wherein the right of appeal against orders is confined by the proviso after Section 13(1A), does not cater to any orders in the course of an execution. Order XLIII Rule 1(j) and (ja) provide for appeals against orders passed in the course of an execution proceeding. Of course, an order under Order XXI Rule 41 is not M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 15 of 17 Ex. No.15/2021 covered therein but in view of the dicta of this Court in D&H India Ltd. supra, the appeal against such an order would also be maintainable.
43. We thus hold the appeal to be maintainable and now proceed to the merits of the challenge."
11. The agreement referred to in the above-mentioned judgment was similar to the agreement in question in the present proceedings and the same was held to be a collaboration agreement falling within purview of clauses (vi) and (vii) of Section 2(1)(c) of the Commercial Courts Act, 2015, in para 28 of the judgment. It has further been held that the execution petition for execution of decree or for enforcement of arbitral awards would fall within the purview of Commercial Courts Act, 2015. The Hon'ble Division Bench, in para 38 of the above referred judgment, has further affirmed the view of previous judgment passed by Hon'ble Single Judge Bench of Hon'ble High Court of Delhi in 'Bayer Intellectual Property GMBH Vs. Symed Laboratories Ltd.' to hold that if the decree is of a Commercial Court, its execution will lie in a Commercial Court only and would not lie in an Ordinary Civil Court, which has jurisdiction to entertain suits of a non- commercial nature and that an application or execution of a decree in a commercial suit would lie in a Commercial Court only.
M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 16 of 17 Ex. No.15/2021
12. The aforesaid judgment and proposition has further been followed by the Hon'ble Division Bench of Hon'ble Andhra Pradesh High Court in "M/s Obulapuram Mining Company Pvt. Ltd. Vs. R.K. Mining Private Limited (12.09.2023):
CRP No. 2183/2022" to hold that the execution petition of commercial nature would be maintainable before the Commercial Courts of appropriate jurisdiction wihtin the purview of Act of 2015.
13. Therefore, in view of discussion hereinabove, it can be concluded that the dispute, being subject matter of present execution petition, is commercial in nature and falls within purview of the Commercial Courts Act, 2015. The objections of the JD about the maintainbility is sustainable and this Court does not have jurisdiction to entertain and decide the present petiton. Accordingly, the present execution petition is dismissed with the liberty to the Decree Holder to file a fresh execution petition before the Ld. Commercial Court of appropriate jurisdiction. The files be consigned to record room after due compliance. ANIL Digitally signed by ANIL CHANDHEL CHANDHEL Date: 2025.11.12 15:35:17 +0530 (Anil Chandhel) District Judge-04 West District/THC/Delhi 12.11.2025 (s) M/s Omaxe Ltd. vs. M/s Superiour Finelease Ltd. Page No. 17 of 17 Ex. No.15/2021