Bombay High Court
Arup Deb And 2 Others vs Global Asia Venture Company And Another on 19 August, 2019
Bench: Pradeep Nandrajog, Bharati H. Dangre
1/3 03-COMAP356.19 & CS706.17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL NO.356 OF 2019
IN
CHAMBER SUMMONS NO.706 OF 2017
IN
COMMERCIAL EXECUTION APPLICATION NO.58 OF 2017
ALONG WITH
NOTICE OF MOTION (L) NO.695 OF 2019
Arup Deb & 2 Ors. .. Appellants
Vs.
Global Asia Venture Company
& Anr. .. Respondents
...
Mr. Zal Andharijina with Ms. Jyoti Sinha with Ms. Pratiksha Basarkar i/b
Khaitan & Co. for the Appellants.
Mr. Sharan Jagtiani with Mr. Siddharth Ratho i/b Nishith Desai
Associates for Respondent No.1.
CORAM: PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI H. DANGRE, J.
DATED : 19th AUGUST, 2019.
P.C:-
1. The impugned order arises out of execution proceedings.
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2. Concerning an Award deciding Commercial Appeal No.401 of 2019 filed by Kakade Construction Company Limited against Vistara ITCL (I) Ltd. & Ors., on 09th August, 2019, a Division Bench of this Court held that since execution of the Award is pursuant to the power under Section 36 of the Arbitration & Conciliation Act, 1996 only such appeals would be maintainable as are envisaged under Section 37 of the said Act.
3. The said decision related to appointment of a Receiver while executing the Award.
4. Learned counsel for the Appellants distinguishes the said judgment on the reason that the impugned order has proceeded to issue an injunction and the only source of the power of the Court to issue injunctions is under Order XXXIX Rules (1) and (2) of the Code of Civil Procedure. Thus, the impugned order would have to be treated as one having been passed exercising power under Order XXXIX of the Code of Civil Procedure and, thus, as per Section 13 of the Commercial Courts Act, 2015, the order would be appealable because under Order XLIII Rule 1, Clause (r) of the Code of Civil Procedure, an order passed under Rules (1) and (2) of Order XXXIX is an appealable order.
5. Clause (v) of Para (j) of Order 21, Rule 11(2) of the Code of Civil Procedure, empowers the Executing Court to pass orders as the nature of the relief granted may require.
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6. The Impugned order could be looked at from the point of view that attachment of a property is effected by issuing an injunction restraining the judgment debtor from creating third party rights, selling, alienating or parting with possession of the immoveable property.
7. Thus, we hold that the impugned order has been passed by the learned Single Judge executing the decree guided by the provisions of the Order XXI of the Code of Civil Procedure. The appeal is held not maintainable in view of the decision dated 09th August, 2019 in Commercial Appeal No.401 of 2019; and the same is dismissed as such.
8. In view of the fact that the appeal has been dismissed as being not maintainable, Notice of Motion No.695 of 2019 seeking interim order is also dismissed.
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