Andhra Pradesh High Court - Amravati
M/S Rani Constructions Private ... vs Andhra Pradesh Road Development ... on 25 September, 2025
APHC010149482024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY,THE TWENTY FIFTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA
PRASAD
WRIT PETITION NO: 7827 OF 2024
Between:
1. M/s Rani Constructions Private Limited,, having its corporate office at 203,
Navketaln Complex, S.D.Raod, Secunderabad -50003 represented by its
Director Sri.Galla Gundaiah S/o Late Galla Subbaiah
...Petitioner
AND
1. Andhra Pradesh Road Development Corporation APRDC, Government of
Andhra Pradesh, 5th Floor,State HOC Building, Opposite Indira Gandhi
Municipal Stadium, Vijayawada - 520010 Krishna district, represented by its
Chief Engineer (RandB) CRN and Managing Director
2. State of Andhra Pradesh, represented by its Secretary to Government,
TRandB Department, Velagapudi, Amaravathi, Guntur District - 522503
Andhra Pradesh
3. State of Andhra Pradesh, represented by its Special Chief Secretary to
Government, Finance Department, Velagapudi, Amaravathi, Guntur District -
522503 Andhra Prade
...Respondents
Counsel for the Petitioner: S RAJAN
Counsel for the Respondents: GP FOR ROADS BUILDINGS Counsel for
the Respondents:GP FOR FINANCE PLANNING Counsel for the
Respondents:P SRI RAM
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The Court made the following ORDER:
Heard Sri S. Rajan, learned Counsel for the Writ Petitioner, Ms. Jhansi
Lakshmi, learned Counsel for the Respondent No.1 and Sri Panuku Rajesh
Kumar, learned Assistant Government Pleader for Finance & Planning.
2. The prayer sought in the Writ Petition is as under:
"....... to issue a Writ, Order or direction more particularly one in
the nature of Writ of Mandamus declaring that the inaction of
the Respondents in the matter of taking an administrative
decision to comply with the consent order dated 04.04.2023
passed by the Honourable High Court of Telangana in COMCA
No.28 of 2022 as illegal, arbitrary, unreasonable and
unconstitutional and consequently direct the Respondents to
settle the admitted dues payable under the aforesaid order to
the petitioner immediately and pass such other order or orders
as this Honourable Court may deem fit and proper in the
interest of justice and circumstances of the case".
Submissions of the Writ Petitioner:
3. The facts as projected by Sri S. Rajan, learned Counsel for the Writ
Petitioner are that the Respondent No.1 has issued a Tender Notification for
widening and strengthening of Kurnool - Devanakonda Raod from KM 4 +
400 to 65 + 300 in Kurnool District; that the Writ Petitioner was a successful
bidder; contractual agreement was reduced into writing on 29.11.2011; that
the Writ Petitioner has commenced the work from 12.01.2012; that the
differences arose on execution of the contract for sorting out such differences,
for which the Writ Petitioner herein has approached the Dispute Resolution
Board (hereinafter referred to as 'DRB') in terms of the conditions set out in
the agreement; that after having considered the plea of the Writ Petitioner, the
DRB accorded six months extension for completing the contract in favour of
the Writ Petitioner; that, having been aggrieved by the Order passed by the
DRB, the Respondent No.1 namely the A.P Road Development Corporation
had invoked Arbitration Clause, and Arbitration Proceedings have commenced;
that the Respondent No.1, during the interregnum, had terminated the
contract between the parties which gave raise to another dispute; that, having
been aggrieved by the Order passed by the Respondent No.1 terminating the
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contract, the Writ Petitioner had once again approached the DRB challenging
the termination of contract; that the DRB, after having considered the
contentions of both parties had upheld the termination of contract.
4. Learned Counsel for the Writ Petitioner would further submit that due to the
dismissal of the Petition challenging the termination by the DRB, the Writ
Petitioner has filed the Counter Claim in the same Arbitration Proceeding
initiated by the Respondent No.1 under which the Respondent No.1 had
challenged the decision of the DRB extending six months time to the Writ
Petitioner for completion of the contract. Both the issues were taken up by the
Arbitral Tribunal consisting of two retired Judges of the Hon'ble Supreme
Court and one Expert Member. It is further submitted by the learned Counsel
for the Writ Petitioner that by a majority, the Award was passed in favour of
the Writ Petitioner on 31.05.2019. The entire Award is not placed on record
before this Court, and therefore, this Court is unable to understand whether it
is unanimous Judgment or majority Judgment, and if it is a majority Judgment,
as to who rendered the dissent); that the Respondent No.1 had challenged the
Award before the Commercial Court in C.O.P.No.112 of 2019; that the
Commercial Court-cum-Special Court for trial and disposal of Commercial
Disputes at Hyderabad, had dismissed the C.O.P.No.112 of 2019 vide Order
dated 31.08.2021 by affirming the Award of the Arbitral Tribunal. (This Order
passed by the Commercial Court-cum-Special Court for trial and disposal of
Commercial Disputes at Hyderabad is also not placed on record).
5. It is further submitted that having been aggrieved by the Order passed by
the Commercial Court-cum-Special Court for trial of and disposal of
Commercial Disputes at Hyderabad under the Commercial Court, Commercial
Division and Commercial Appellate Division of High Courts Act, 2015
(hereinafter referred to as 'Act, 2015'), the Respondent No.1 herein has
approached the Hon'ble Division Bench of Telangana by filing Appeal bearing
COMCA No.28 of 2022; that the Hon'ble Division Bench of Telangana, having
noted the personal presence of the Managing Director in the Court, namely
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the Appellant therein (i.e., the A.P Road Development Corporation) have
noted that the Counsel appearing for both parties have agreed on all the
issues except the rate of interest and that the Counsel for both parties have
left it to the discretion of the Court to determine the interest portion of the
Award. Having noted the same, the Hon'ble Division Bench, High Court of
Telangana had disposed of the COMCA No.28 of 2022 vide Order dated
04.04.2023. The relevant portion of the Order is usefully extracted hereunder:
"7. Today, the Managing Director of appellant - Corporation
and one of the Directors of respondent No.1 are present. In
their presence we have asked learned counsel appearing for
the parties as to whether the matter can be disposed of
having regard to the resolution of dispute arrived at on all
other aspects except interest and leave it to the Court for
determination of interest portion of the Award passed by the
Arbitral Tribunal. Both counsel with the consent of the parties
present have agreed to the suggestion of the Hon'ble Court.
8. Having regard to the dispute involved and facts noted
above and since both parties have fairly come to an
understanding for resolution of dispute by mutually agreeing
for compliance of the Award, and left it to the Court to
determine the interest portion, we are inclined to modify the
interest portion of the Award, from 9% per annum to 5% per
annum to give quietus to the litigation which is going on from
the year 2011.
9. Accordingly, with consent of the parties, the Appeal is
disposed of with following directions:
1. As agreed between the parties, the
appellant shall pay the amount of
Rs.12,53,84,192/- as ordered by the
Arbitration Tribunal in paragraph No.1 of the
directions of the final Award.
2. The appellant shall forthwith address letters
to the three banks from where mobilization
advance bank guarantees and performance
guarantees were obtained, asking them to
discharge the bank guarantees and
performance guarantees within three (3)
weeks, without any conditions.
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3. As agreed between the parties, whatever
machinery and other equipment standing on
the concerned premises, shall be handed over
on as is where is basis by jointly drafting the
inventory. It is made clear that respondent
No.1 shall not insist for handing over of the
entire material as per original inventory and
which is not available on the premises.
4. The appellant shall comply with the
directions issued in paragraph Nos.4 and 5 of
the final Award.
5. With reference to the interest portion, we
direct the appellant to pay only 5% of interest
per annum instead of 9% per annum, as
awarded by the Arbitral Tribunal.
6. The principal amount as well as the interest
shall be paid within three (3) months from the
date of receipt of copy of this order."
6. The above extract makes it clear that the interest that is awarded as per the
Award had been reduced by the Hon'ble Division Bench of Telangana from
9% to 5%.
7. Learned Counsel for the Writ Petitioner has drawn the attention of this
Court to the subsequent correspondence between the parties indicating the
approach of Respondent No.1 intending to comply with the Order passed by
the Hon'ble Division Bench, High Court of Telangana dated 04.04.2023. It is
submitted that, in compliance with the Order dated 04.04.2023 of the Hon'ble
Division Bench, High Court of Telangana, the Secretary to Government, TR &
B Department, had addressed a letter to the Chief Engineer (R&B) on
19.06.2023 (Ex.P.3) to initiate appropriate Proceedings for release of the Bank
Guarantees of three Banks [(i) State Bank of India (ii) Bank of Baroda and (iii)
Union Bank of India] and also to handover the machinery under the custody of
the Respondent No.1 to the Writ Petitioner herein; that, in pursuance of the
said Order dated 19.06.2023, the Chief Engineer (R&B) had addressed three
letters on 23.06.2023 to the: (i) State Bank of India (ii) Bank of Baroda and (iii)
6
Union Bank of India to release the Bank Guarantees, Performance Security
and Additional Performance Security etc., to the Writ Petitioner (Ex.P.4); and
that the Managing Director of Respondent No.1 had also addressed a letter to
the Secretary to Government, TR&B Department on 29.05.2023 (Ex.P.8)
seeking administrative sanction for making the payment of Rs.15,04,62,147/-
to the contractor. The Managing Director of Respondent No.1 had also
addressed a similar letter to the same authority namely the Secretary to
Government, TR&B Department on 06.02.2024 (Ex.P.7) reminding the said
authority that the administrative sanction has not yet been accorded and that
an administrative sanction is required for payment of Rs.15,67,37,582/- (which
includes the interest calculated upto 31.03.2024). The Writ Petitioner has sent
a legal notice to Respondent No.1 on 31.01.2024 (Ex.P.5), for which the
Respondent No.1 had issued a Reply on 06.02.2024 (Ex.P.6) indicating that
the Government is 'yet to take a decision' with regard to the administrative
sanction.
8. Learned Counsel for the Writ Petitioner has placed reliance on the following
Judgments :
1. Bhamidipati Annapoorna Bhavani Vs. Land
Acquisition Officer, Yeleru Reservoir Project : 2005
LawSuit (AP) 167 (Para No.11).
2. Sukh Dutt Ratra & ANR Vs. State of Himachal Pradesh
& Ors : 2022 LawSuit (SC) 435 (Para Nos.19 & 24).
This Court has gone through the relevant paragraphs that were read out
by the learned Counsel for the Writ Petitioner. At the outset, this Court is
rather constrained to note that none of the above Judgments have any
relevance to the present facts of the case. The legal preposition on which the
learned Counsel for the Writ Petitioner relies on is that a Writ Court can issue
directions compelling the Respondent Authorities for payment of
compensation to the Claimants whose land has been acquired under the Land
Acquisition Act. Grant of compensation and recovery of such compensation in
7
Land Acquisition Proceedings stand entirely on a different footing as has been
laid down very clearly by the Hon'ble Apex Court and the analogy emanating
out of the Land Acquisition Proceedings cannot be applied to the Proceedings
in a commercial dispute, which had been considered by the Commercial Court
Circuit namely by the Commercial Court-cum-Special Court for Trial and
Disposal of Commercial Disputes at Hyderabad and the Appellate Division
(Hon'ble Division Bench, High Court of Telangana) under the Commercial
Courts, Commercial Division and Commercial Appellate Division of High
Courts Act, 2015 (the Commercial Courts Act, 2015).
Submissions of the Respondents
9. Ms. Jhansi Lakshmi, learned Counsel for the Respondent No.1 and Sri
Panuku Rajesh Kumar, learned Assistant Government Pleader for Finance &
Planning have raised preliminary objection as regards the maintainability of
present Writ Petition.
10. It is submitted by the learned Counsel for the Respondents that the Award
that had been passed by the Arbitral Tribunal had been considered under the
Act, 2015. It is further submitted that the Hon'ble Division Bench, High Court
of Telangana under the Appellate Jurisdiction of the Commercial Courts Act,
2015 was also pleased to consider and confirm the Award by modifying the
interest rate and that the same can be executed only through the process of
execution under Order XXI of Code of Civil Procedure, 1908 (hereinafter
referred to as 'CPC, 1908'), and therefore, the present Writ Petition is not
maintainable.
11. Counter-Affidavit was filed on 22.08.2025. Learned Counsel for the
Respondents have drawn the attention of this Court to Para Nos.11 to 15 of
the Counter Affidavit. In Para No.14 of the Counter Affidavit, it has been
categorically stated that the present Writ Petition is not maintainable under
Article 226 of the Constitution of India, inasmuch as there is no Public Law
element involved in the present case.
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12. ISSUES:
Having considered the rival contentions, this Court deems it appropriate
to frame the following issues :
i. Whether the Writ Petitioner can seek a Writ of
Mandamus under Article 226 of the Constitution of India
to compel the Official Respondents to act on the internal
correspondence dated 29.05.2023 (Ex.P.8) and
06.02.2024 (Ex.P.7) between the Managing Director of the
Respondent No.1 Corporation and the Secretary to
Government, TR&B Department?
ii. Whether the Writ Petition is maintainable for execution
of an Award that was affirmed by the Commercial Court
(Trial Court) as well as Appellate Division of the
Commercial Court under the Commercial Courts,
Commercial Division and Commercial Appellate Division
of High Courts Act, 2015 (4 of 2016)?
Analysis
Issue No.1:
Whether the Writ Petitioner can seek a Writ of
Mandamus under Article 226 of the Constitution of India
to compel the Official Respondents to act on the internal
correspondence dated 29.05.2023 (Ex.P.8) and
06.02.2024 (Ex.P.7) between the Managing Director of the
Respondent No.1 Corporation and the Secretary to
Government, TR&B Department?
13. Although the prayer in the Writ Petition is to seek a declaration that the
inaction on the part of the Respondents in taking administrative decision to
comply with the consent Order of the Hon'ble Division Bench, High Court of
9
Telangana dated 04.04.2023, learned Counsel for the Writ Petitioner contends
that it would suffice, if this Court directs the Respondent Nos.2 & 3 to act on
the correspondence made by the Respondent No.1 on 29.05.2023 and
06.02.2024. As it can be seen from the record and the facts which have been
narrated herein above, the Proceedings between the Respondent No.1 and
Respondent No.2 are internal in nature, where the Respondent No.1 was
seeking administrative sanction for making payment to the Writ Petitioner and
that the final decision is yet to be taken by the Government in this regard.
This issue takes the Court to the moot question whether this internal
correspondence can be made the basis to issue a Mandamus to Respondent
No.2 to grant administrative sanction or to take a decision with regard to the
administrative sanction. The Hon'ble Apex Court, in a catena of decisions,
categorically held that the internal proceedings or internal correspondence
between the various authorities cannot be relied, and thereby, requiring the
Court to issue a Writ of Mandamus compelling them to take a decision.
14. In Sethi Auto Service Station and Another Vs. Delhi Development
Authority and Others : (2009) 1 SCC 180, the Hon'ble Supreme Court, had
held at Para Nos.13 to 15 as under :
"13. Thus, the first question arising for consideration is whether
the recommendation of the Technical Committee vide minutes
dated 17-5-2002 for resitement of the appellants' petrol pumps
constitutes an order/decision binding on DDA?
14. It is trite to state that notings in a departmental file do not
have the sanction of law to be an effective order. A noting by an
officer is an expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use and
consideration of the other officials of the department and for the
benefit of the final decision-making authority. Needless to add
that internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order,
affecting the rights of the parties, only when it reaches the
final decision-making authority in the department, gets his
approval and the final order is communicated to the person
concerned.
(Emphasis supplied)
15. In Bachhittar Singh v. State of Punjab [AIR 1963 SC
395 : 1962 Supp (3) SCR 713] , a Constitution Bench of this
10
Court had the occasion to consider the effect of an order
passed by a Minister on a file, which order was not
communicated to the person concerned. Referring to
Article 166(1) of the Constitution, the Court held that order
of the Minister could not amount to an order by the State
Government unless it was expressed in the name of the
Rajpramukh, as required by the said article and was
then communicated to the party concerned. The Court
observed that business of State is a complicated one and
has necessarily to be conducted through the agency of a
large number of officials and authorities. Before an action
is taken by the authority concerned in the name of the
Rajpramukh, which formality is a constitutional necessity,
nothing done would amount to an order creating rights or
casting liabilities to third parties. It is possible, observed
the Court, that after expressing one opinion about a
particular matter at a particular stage a Minister or the
Council of Ministers may express quite a different opinion
which may be opposed to the earlier opinion. In such
cases, which of the two opinions can be regarded as the
"order" of the State Government? It was held that opinion
becomes a decision of the Government only when it is
communicated to the person concerned."
(Emphasis supplied)
15. In Jasbir Singh Chhabra and Others Vs. State of Punjab and Others :
(2010) 4 SCC 192, the Hon'ble Supreme Court held in Para No.35 as under :
"35. It must always be remembered that in a democratic polity
like ours, the functions of the Government are carried out by
different individuals at different levels. The issues and policy
matters which are required to be decided by the Government
are dealt with by several functionaries some of whom may
record notings on the files favouring a particular person or
group of persons. Someone may suggest a particular line of
action, which may not be conducive to public interest and
others may suggest adoption of a different mode in larger
public interest. However, the final decision is required to
be taken by the designated authority keeping in view the
larger public interest. The notings recorded in the files
cannot be made basis for recording a finding that the
ultimate decision taken by the Government is tainted by
mala fides or is influenced by extraneous considerations.
The Court is duty-bound to carefully take note of the same.
In this context, reference can usefully be made to the decision
of the Constitution Bench in E.P. Royappa v. State of
T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165] In that case, the
petitioner, who was at one time holding the post of Chief
Secretary of the State, questioned the decision of the
Government to post him as an officer on special duty. One of
the grounds on which he attacked the decision of the
Government was that the Chief Minister of the State, Shri K.
Karunanidhi was ill-disposed against him."
11
(Emphasis supplied)
16. In State of Orissa and Others Vs. Mesco Steels Limited and Another :
(2013) 4 SCC 340, the Hon'ble Supreme Court has framed the question in
Para No.17.1 and had answered the same in Para Nos.19 & 20. Therefore,
Para No.17.1 and Para Nos.19 & 20 are usefully extracted hereunder:
"17.1. Whether the writ petition filed by the respondent Company
was premature, the same having been filed against an inter-
departmental communication that did not finally determine any
right or obligation of the parties?
18. xxxxx
19. It is obvious from a conjoint reading of the letter dated 12-
1-2006 and communication dated 19-9-2006 sent by the
Director of Mines in response thereto that a final decision on
the subject had yet to be taken by the Government, no matter
the Government may have provisionally decided to follow the
line of action indicated in its communication dated 12-1-2006
issued under the signature of the Joint Secretary, Department
of Steel and Mines. It is noteworthy that there was no
challenge to the communication dated 12-1-2006 before the
High Court nor was any material placed before us to suggest
that any final decision was ever taken by the Government on
the question of deduction of the area granted in favour of the
respondent so as to render the process of issue of show-
cause notice for hearing the respondent Company an
exercise in futility.
20. On the contrary, the issue of the show-cause notice setting out
the reasons that impelled the Government to claim resumption of a
part of the proposed lease area from the respondent Company
clearly suggested that the entire process leading up to the issue of
the show-cause notice was tentative and no final decision on the
subject had been taken at any level. It is only after the
Government provisionally decided to resume the area in part or full
that a show-cause notice could have been issued. To put the
matter beyond any pale of controversy, Mr Lalit made an
unequivocal statement at the Bar on behalf of the State
Government that no final decision regarding resumption of any
part of the lease area has been taken by the State Government so
far and all that had transpired till date must necessarily be taken
as provisional. Such being the case the High Court was in error
in proceeding on an assumption that a final decision had
been taken and in quashing what was no more than an inter-
departmental communication constituting at best a step in
the process of taking a final decision by the Government. The
writ petition in that view was premature and ought to have
been disposed of as such. Our answer to Question 1 is
accordingly in the affirmative."
12
(Emphasis supplied)
17. In Mahadeo and Others Vs. Sovan Devi and Others : (2023) 10 SCC
807, the Hon'ble Supreme Court had held at Para Nos.15 to 18 as under:
"15. It is well settled that inter-departmental
communications are in the process of consideration for
appropriate decision and cannot be relied upon as a basis
to claim any right. This Court examined the said question
in a judgment reported as Omkar Sinha v. Sahadat
Khan [Omkar Sinha v. Sahadat Khan, (2022) 12 SCC 228 :
(2023) 2 SCC (L&S) 391] . Reliance was placed on Bachhittar
Singh v. State of Punjab [Bachhittar Singh v. State of Punjab,
1962 SCC OnLine SC 11 : AIR 1963 SC 395] to hold that
merely writing something on the file does not amount to an
order. Before something amounts to an order of the State
Government, two things are necessary. First, the order has
to be expressed in the name of the Governor as required
by clause (1) of Article 166 and second, it has to be
communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up, the State
Government cannot, in our opinion, be regarded as bound
by what was stated in the file. The said judgment was
followed in K.S.B. Ali v. State of A.P. [K.S.B. Ali v. State of A.P.,
(2018) 11 SCC 277] , and Dyna Technologies (P)
Ltd. v. Crompton Greaves Ltd. [Dyna Technologies (P)
Ltd. v. Crompton Greaves Ltd., (2019) 20 SCC 1]
(Emphasis supplied)
16. In Bachhittar Singh [Bachhittar Singh v. State of Punjab, 1962
SCC OnLine SC 11 : AIR 1963 SC 395] , it has been held as
under : (AIR pp. 397-98, paras 8-9 & 11)
"8. What we have now to consider is the effect of the note
recorded by the Revenue Minister of PEPSU upon the file. We
will assume for the purpose of this case that it is an order.
Even so, the question is whether it can be regarded as the
order of the State Government which alone, as admitted by
the appellant was competent to hear and decide an appeal
from the order of the Revenue Secretary. Article 166(1) of the
Constitution requires that all executive action of the
Government of a State shall be expressed in the name of the
Governor. Clause (2) of Article 166 provides for the
authentication of orders and other instruments made and
executed in the name of the Governor. Clause (3) of that
article enables the Governor to make rules for the more
convenient transaction of the business of the Government and
for the allocation among the Ministers of the said business.
What the appellant calls an order of the State Government is
admittedly not expressed to be in the name of the Governor.
But with that point we shall deal later. What we must first
ascertain is whether the order of the Revenue Minister is an
order of the State Government i.e. of the Governor. In this
connection we may refer to Rule 25 of the Rules of Business
of the Government of PEPSU which reads thus:
13
'Except as otherwise provided by any other Rule, cases shall
ordinarily be disposed of by or under the authority of the
Minister in charge who may by means of standing orders give
such directions as he thinks fit for the disposal of cases in the
Department. Copies of such standing orders shall be sent to
the Rajpramukh and the Chief Minister.'
According to the learned counsel for the appellant his appeal
pertains to the department which was in charge of the
Revenue Minister and, therefore, he could deal with it. His
decision and order would, according to him, be the decision
and order of the State Government. On behalf of the State
reliance was, however, placed on Rule 34 which required
certain classes of cases to be submitted to the Rajpramukh
and the Chief Minister before the issue of orders. But it was
conceded during the course of the argument that a case of the
kind before us does not fall within that rule. No other provision
bearing on the point having been brought to our notice we
would, therefore, hold that the Revenue Minister could make
an order on behalf of the State Government.
9. The question, therefore, is whether he did in fact make such
an order. Merely writing something on the file does not
amount to an order. Before something amounts to an order of
the State Government two things are necessary. The order
has to be expressed in the name of the Governor as required
by clause (1) of Article 166 and then it has to be
communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the State Government
cannot, in our opinion, be regarded as bound by what was
stated in the file. As long as the matter rested with him the
Revenue Minister could well score out his remarks or minutes
on the file and write fresh ones.
***
11. We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant."
17. This Court in Municipal Committee, Barwala v. Jai Narayan & Co. [Municipal Committee, Barwala v. Jai Narayan & Co., (2023) 14 SCC 786 : 2022 SCC OnLine SC 376] held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of an opinion by the particular individual. It was held as under : (SCC paras 16-17) "16. This Court in a judgment in State of Uttaranchal v. Sunil Kumar Vaish [State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 :
(2011) 4 SCC (Civ) 325 : (2011) 3 SCC (Cri) 542 : (2011) 2 SCC (L&S) 410] held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under : (SCC p. 678, para 24) (Emphasis supplied) '24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents 14 expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v. Sodhi Sukhdev Singh [State of Punjab v. Sodhi Sukhdev Singh, 1960 SCC OnLine SC 38 : AIR 1961 SC 493] , Bachhittar Singh v. State of Punjab [Bachhittar Singh v. State of Punjab, 1962 SCC OnLine SC 11 : AIR 1963 SC 395] , State of Bihar v. Kripalu Shankar [State of Bihar v. Kripalu Shankar, (1987) 3 SCC 34 : 1987 SCC (Cri) 442] , Rajasthan Housing Board v. Shri Kishan [Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC 84] , Sethi Auto Service Station v. DDA [Sethi Auto Service Station v. DDA, (2009) 1 SCC 180] and Shanti Sports Club v. Union of India [Shanti Sports Club v. Union of India, (2009) 15 SCC 705 : (2009) 5 SCC (Civ) 707] .)'
17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law."
18. The basis of the claim of the writ petitioner is a letter written by the Secretary of the Soldier Welfare Department to the District Collector, Udaipur on 19-3-1971 for allotment of land. The Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter-departmental communication dated 19-3-1971 cannot be treated to be a letter of allotment. Alternatively, even if it is considered to be a letter of allotment, the writ petitioner could not claim possession on the basis of such communication after more than 30 years in terms of the Rules applicable for allotment of land to the disabled ex- servicemen."
(Emphasis supplied)
18. In Delhi Development Authority Vs. Hello Home Education Society :
(2024) 3 SCC 148, the Hon'ble Supreme Court, had drawn the analogy from Bachhittar Singh's case : 1962 SCC OnLine SC 11 : AIR 1963 SC 395, had held in Para No.19.7 as under:15
"19.7. The issue relating to internal notings as to whether it would confer any right or not has been adequately dealt with and settled by series of judgments of this Court. It is well settled that until and unless the decision taken on file is converted into a final order to be communicated and duly served on the party concerned, no right accrues to the said party. Mere notings and in-principle approvals do not confer a vested right. Relevant extracts from judgments of this Court in this regard are being reproduced hereunder.
(a) Bachhittar Singh [Bachhittar Singh v. State of Punjab, 1962 SCC OnLine SC 11 : AIR 1963 SC 395] : (AIR p. 398, paras 9-10) "9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. ...
10. ... Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."
(emphasis supplied)
(b) Sethi Auto Service Station [Sethi Auto Service Station v. DDA, (2009) 1 SCC 180] (SCC pp. 185-87, paras 14 & 22) "14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is [Ed. : The word between two asterisks has been emphasised in original as well.] communicated [Ed. : The word between two asterisks has been emphasised in original as well.] to the person concerned.
22. From the afore-extracted notings of the Commissioner and the order of the Vice-Chairman, it is manifest that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technical Committee, the entire 16 matter was kept pending; in the meanwhile a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice-Chairman, the final decision-making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of State Level Coordinator (Oil Industry) and the Technical Committee but these did not ultimately fructify into an order or decision of the DDA, conferring any legal rights upon the appellants. Mere favourable recommendations at some level of the decision-making process, in our view, are of no consequence and shall not bind DDA. We are, therefore, in complete agreement with the High Court [Sethi Auto Service Station v. DDA, 2006 SCC OnLine Del 162] that the notings in the file did not confer any right upon the appellants, as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench [Sethi Auto Service Station v. DDA, 2006 SCC OnLine Del 162] , warranting interference."
(emphasis supplied)
(c) Mahadeo [Mahadeo v. Sovan Devi, (2023) 10 SCC 807] , (SCC pp. 813-14, para 15) "15. It is well settled that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. This Court examined the said question in a judgment reported as Omkar Sinha v. Sahadat Khan [Omkar Sinha v. Sahadat Khan, (2022) 12 SCC 228 : (2023) 2 SCC (L&S) 391] . Reliance was placed on Bachhittar Singh v. State of Punjab [Bachhittar Singh v. State of Punjab, 1962 SCC OnLine SC 11 : AIR 1963 SC 395] to hold that merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. First, the order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and second, it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file."
(emphasis supplied)
19. The above decisions clearly lay down the legal proposition that the Writ Petitioner had no vested right unless a final decision has been taken by the authority and that such vested right would accrue exclusively in a Public Law remedy but not under a Private Law remedy. Admittedly, the present dispute is governed by the Commercial Courts Act as it has arisen out of a Contract.
17Issue No.2:
Whether the Writ Petition is maintainable for execution of an Award that was affirmed by the Commercial Court (Trial Court) as well as Appellate Division of the Commercial Court under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (4 of 2016)?
20. Admittedly, the disputes which arose between the Writ Petitioner and Respondent No.1 have culminated in an 'Arbitral Award' on 31.05.2019; that the said Award came to be challenged by the Respondent No.1 before the Commercial Court-cum-Special Court for Trial and Disposal of Commercial Disputes at Hyderabad, and that it had dismissed the COP No.112 of 2019 vide Order dated 31.08.2021 by affirming the Award dated 31.05.2019. Admittedly, the Respondent No.1 had filed the Appeal under the Commercial Appellate Division of the High Court challenging the Award dated 31.05.2019 and the final Judgment and Decree dated 31.08.2021 in COP No.112 of 2019. It is also admitted that the Hon'ble Division Bench in its Commercial Appellate Jurisdiction had disposed of COMCA No.28 of 2022, vide Order 04.04.2023, and the Hon'ble Division Bench, High Court of Telangana had affirmed the Award and reduced the interest rate from 9% to 5% by recording consent of parties.
21. The above Proceeding would clearly indicate that the dispute that subsisted between the Writ Petitioner and Respondent No.1 is a commercial dispute. Parties have resorted to arbitration for resolution of this dispute. The Award dated 31.05.2019 was assailed before the Commercial Court-cum- Special Court for Trial and Disposal of Commercial Disputes at Hyderabad by filing COP No.112 of 2019; that the COP No.112 of 2019 came to be disposed vide Order dated 31.08.2021 affirming the Award and the Appellate Division (Hon'ble Division Bench, High Court of Telangana) under the Act, 2015 had affirmed the findings of the Arbitral Tribunal and the Trial Court vide Order 18 dated 04.04.2023. Unequivocally, these proceedings are civil in nature, inasmuch as the Act, 2015 had carved out a fast track procedure for resolution of disputes coming before the Commercial Courts by enacting certain provisions which are a deviation from the provisions of the CPC, 1908. They relate to not only the trial and disposal of the cases that come before the Commercial Courts but also with regard to execution of the Decrees. This implies that the parties have to fall back upon the provisions of the CPC, 1908 read with the provisions of the Commercial Courts Act, 2015 for execution of the Final Orders arising from the Commercial Courts. It is a settled law that the Commercial Courts are also carved out from the regular Civil Courts and the proceedings which are brought before such Commercial Courts are, by their very nature, private disputes. The parties in the present case cannot deny the fact that the dispute before the Commercial Court is a private dispute, pure and simple, although the Respondent No.1 is a public institution.
22. Under these circumstances, the moot question arises as to whether the contractor could resort to civil proceedings under the Commercial Courts Act, 2015 upto a particular stage and thereafter abandon the logical statutory process for execution and file a petition under Article 226 of the Constitution of India seeking a Writ of Mandamus for recovery of the dues which emanate out of a commercial Award.
23. It is a settled law that what cannot be done directly cannot be done indirectly either. The legal position is also well settled that the Commercial Courts Act, 2015 had been carved out with special provisions but that such proceedings would be undertaken only by a designated Civil Court with a view to fast track certain procedures so that the final verdict be rendered within a fixed time span. However, it is amply clear from the provisions of the Commercial Courts Act, 2015 that Parliament has not created similar fast track procedures for execution of the final verdict; therefore, the Decree holders have to fall back on the regular provisions of the CPC, 1908 read with provisions of Commercial Courts Act, 2015 for executing the same before the 19 same Commercial Courts and recourse to a Writ Court is absolutely not countenanced under this statutory Scheme. This view of the Court is fortified by the Judgment of the Hon'ble Supreme Court in Ambalal Sarabhai Enterprises Limited Vs. K.S. Infraspace and another : (2020) 15 SCC 585, wherein the Hon'ble Apex Court had expounded the object of the Act, 2015 as well as corresponding amendments made to the CPC, 1908 in its application to commercial disputes at Para No.33 to 36 & 42, which are usefully extracted hereunder:
"Fast Track Procedure for deciding the commercial disputes
33. As per Section 16 of the Act, the provisions of the Code of Civil Procedure as amended under the Act, shall apply in the trial of suit in respect of a commercial dispute of a specified value. Section 16 of the Act reads as under:
"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."
34. The Schedule to the Commercial Courts Act amends various provisions of the Code of Civil Procedure and thereby makes significant departure from the Code. After Order 13 of the Code, Order 13-A -- "Summary Judgment" has been inserted. Order 13-A contains the scope and classes of suits to which Order 13-A applies, grounds for summary judgment, procedure to be followed, evidence for hearing of summary judgment, orders that may be made by Court in such proceedings for summary judgment, etc. After Order 15 of the Code, Order 15-A--
"Case Management Hearing" has been inserted. Order 15-A provides for first case management hearing (Rule 1); recording of oral evidence on a day-to-day basis (Rule 4); powers of the court in a case management hearing (Rule
6); adjournment of case management hearing (Rule 7);
consequences of non-compliance with orders (Rule 8). By 20 way of amendment, several rules have been incorporated to make the matters of commercial disputes on fast track. In Order 20 of the Code -- "Judgment", Rule 1 has been substituted that within ninety days of the conclusion of arguments, the Commercial Court/Commercial Division/Commercial Appellate Division to pronounce the judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise.
35. Various provisions of the Act, namely, case management hearing and other provisions makes the court to adopt a pro-active approach in resolving the commercial dispute. A new approach for carrying out case management and strict guidelines for completion of the process has been introduced so that the adjudicatory process is not delayed. I have referred to the various provisions of the Act and the Schedule bringing in amendments brought to the Civil Procedure Code to deal with the commercial disputes, only to highlight that the trial of the commercial dispute suits is put on fast track for disposal of the suits expeditiously. Various provisions of the Act referred to above and the amendments inserted to the Civil Procedure Code by the Schedule is to ensure speedy resolution of the commercial disputes in a time bound manner. The intent of the legislature seems to be to have a procedure which expedites the disposal of commercial disputes and thus creates a positive environment for investment and development and make India an attractive place to do business.
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.
42. The object and purpose of the establishment of Commercial Courts, Commercial Divisions and Commercial Appellate Divisions of the High Court is to ensure that the cases involved in commercial disputes are 21 disposed of expeditiously, fairly and at reasonable cost to the litigants. Keeping in view the object and purpose of the establishment of the Commercial Courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country. On the above reasonings, I agree with the conclusion arrived at by my esteemed Brother A.S. Bopanna, J."
24. The Hon'ble Apex Court in Jaycee Housing Private Limited and Others Vs. Registrar (General), Orissa High Court, Cuttack and Others ; (2023) 1 SCC 549 had also spelt out the objects and reasons of the Commercial Courts Act, 2015 at Para No.24 and relevant Para Nos.27 to 29 are usefully extracted hereunder:
"24. Thus, the Objects and Reasons of the 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 2015 Act. At this stage, it is required to be noted that the 2015 Act is the Act later in time and therefore when the 2015 Act has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the 1996 Act. 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.
27. If the submission on behalf of the appellants that all applications/appeals arising out of arbitration under the provisions of the 1996 Act, 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 the 2015 Act and establishment of Commercial Courts shall be frustrated, even Sections 3, 10 & 15 shall become otiose and nugatory.
28. 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 the 2015 Act, with respect to arbitration proceedings, the applications or appeals shall lie before the Principal Civil Court of a district. There 22 cannot be two fora with respect to different commercial disputes.
29. 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 the 1996 Act cannot be said to be illegal and bad in law. On the contrary, the same can be said to be absolutely in consonance with Sections 3 & 10 of the 2015 Act. We are in complete agreement with the view [Jaycee Housing (P) Ltd. v. District Judge, Khurda, 2022 SCC OnLine Ori 3833] taken by the High Court holding so."
25. Learned Single Judge of the High Court of Kerala in Karthik Exports, Represented by its Managing Partner, S. Vijayan and Others Vs. Krishna Kumar Agarwal : 2025 SCC OnLine Ker 1612 while placing the reliance on two Judgments rendered by the Hon'ble Division Bench that is Hon'ble High Court of Delhi and Hon'ble High Court of Gujarat had categorically held that the final decrees emanating from the Commercial Court circuit can only be executed by resorting Section 47 and Order XXI of CPC, 1908. Para Nos.19 & 23 of the said Judgment are usefully extracted hereunder:
"19. In Delhi Chemical and Pharmaceutical Works Pvt. Ltd. v. Him Giri Realtors Pvt. Ltd., [2021 SCC OnLine Del 3603], a similar issue came before the Division Bench and the Division Bench held as follows:
"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, 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 23 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 the 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 Coomar Ramaput 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 and resolution of 24 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 v. Symed Laboratories Ltd., 2019 SCC OnLine Del 7410 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 non-commercial nature and that an application or execution of a decree in a commercial suit would lie in a Commercial Court only.
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 25 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 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."
23. A Division Bench of Gujarat High Court in Arun Kumar Jagatramka v. Ultrabulk A/S; 2022 SCC OnLine Guj 2767; AIR 2022 Guj 69, held that the commercial courts have the jurisdiction to try and decide the execution application arising from the judgment and decree passed by the commercial courts. The relevant paragraphs read as follows:
"6.6 When the execution is filed from the decree of commercial court, the 'commercial dispute' continues to exists. In the execution proceedings initiated to execute the decree of the commercial court, the characteristics of the 'commercial dispute' is not lost, rather the dispute continues in the same nature, that is the 'commercial dispute'.
6.7 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' 26 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.
6.8 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. 6.9 In Morlays (B'Ham) Limited v. Roshanlal Ramsahai [AIR 1961 Bom 156], the Bombay High Court considered the words 'as if' used in Sub- section (1) of Section 44A, CPC to observe that the words 'as if' are used to make the whole scheme of Order XXI applicable in respect of the execution of decrees of foreign court mentioned in Sub section (1). In other words, it can be said that when foreign decree is sought to be executed under Section 44A, CPC, the provisions relating to execution in CPC shall have a play together to be applied. Merely because while amending certain provisions of CPC as per the Section 16 of the Commercial Courts Act, the provisions regarding execution are not touched, it would not mean or imply that the commercial court does not have the power to execute.
7. For the foregoing reasons and discussion, a clear position of law emerges that commercial court does have the jurisdiction to try and decide the execution applications arising from the judgment and decree passed by the commercial court."27
26. In Ghan Shyam Das Gupta and Another Vs. Anant Kumar Sinha and Others : (1991) 4 SCC 379, the Hon'ble Supreme Court had made it clear that the Decree holders can only resort to execution under Order XXI of the CPC, 1908. Para No.8 is usefully extracted hereunder:
8. The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. As was observed in State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975 SCC (L&S) 349 : (1976) 1 SCR 521] the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate court.
In Thansingh Nathmal v. A. Mazid, Supdt. of Taxes [(1964) 6 SCR 654 : AIR 1964 SC 1419] a case dealing with liability to pay sales tax, the appellants without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires. The challenge was rejected. Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely speculative, was also raised. This ground also failed before the High Court and the writ petition was dismissed. Approving the decision, this Court observed that if the appellants had pursued the statutory remedy under the Act and the question had been referred to the High Court, the Court could have appropriately advised the Commissioner, but not having done so, the High Court could not be asked to assume the role of an appellate court over the decision of the Commissioner either on a question of fact or even of law. Again when a learned Single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehicles Act, it was observed by this Court in M. Naina Mohammed v. K.A. Natarajan [(1975) 2 SCC 352 : (1976) 1 SCR 102] , that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review. So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of Order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to 28 claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting to a judgment- debtor or a claimant objector can be justified. The Rules 97 to 106 of Order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court."
27. In the above premise, this Court is constrained to hold that no direction can be given to the Official Respondents to comply with the consent Order dated 04.04.2023 in COMCA No.28 of 2022 basing on the Inter-departmental correspondence dated 23.05.2023 (Ex.P.8) and 06.02.2024 (Ex.P.7) between the Managing Director of Respondent No.1 and Respondent No.2. This Court is also constrained to hold that a Decree rendered by the Commercial Court, even if it were to be a consensual decree, can only be executed by a Decree holder by approaching the Commercial Court under Section 38 and Order XXI of the CPC, 1908.
28. In view of the aforesaid findings, this Court is of the opinion that the present Writ Petition is devoid of any merit. Accordingly, this Writ Petition is dismissed. No Order as to Costs.
29. Before parting this case, having regard to the facts and circumstances of the case, this Court deems it appropriate to grant liberty to the Writ Petitioner to approach appropriate Forum. This Court further holds that the Writ Petitioner would be entitled for condonation of delay from the date of filing of the present Writ Petition till the date of uploading the copy of this Order on the Website of this Court for the purpose of execution if such Execution Petition is 29 filed within 12 weeks from the date of uploading this Order on the website of this Court.
30. Interlocutory Applications, if any, stand closed in terms of this order.
______________________________________ GANNAMANENIRAMAKRISHNA PRASAD, J Dt:25.09.2025 Note: LR copy to be marked.
B/o : JKS