Kerala High Court
M/S Karthik Exports vs Krishna Kumar Agarwal on 5 March, 2025
1
OPC 2413/2024
2025:KER:18121
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
OP(C) NO. 2413 OF 2024
EP NO.52 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
IV, PATHANAMTHITTA / IV ADDL. M.A.C.T.
PETITIONER/S:
1 M/S KARTHIK EXPORTS,THUVAYOOR NORTH, ANTHICHIRA, MANAKALA
P.O, ADOOR, PATHANAMTHITTA, KERALA- PIN- 691 551,
REPRESENTED BY ITS MANAGING PARTNER, S. VIJAYAN@ VIJAYAN
THADATHIL SADANANDAN, AGED 55 YEARS, S/O THADATHIL
SADANANDAN, EP/VIII/558 B, MANAKKALA, ANTHICHIRA, THUVAYOOR
NORTH, PATHANAMTHITTA DISTRICT- PIN-691 551,, PIN - 691551
2 S. VIJAYAN @ VIJAYAN THADATHIL SADANANDAN,AGED 55 YEARS
S/O THADATHIL SADANANDAN, EP/VIII/558 B,
MANAKKALA,ANTHICHIRA,THUVAYOOR NORTH, PATHANAMTHITTA
DISTRICT-, PIN - 691551
3 PREETHA VIJAYAN,AGED 55 YEARS
W/O. S. VIJAYAN@ VIJAYAN THADATHIL SADANANDAN, , EP/VIII/558
B, MANAKKALA, ANTHICHIRA, THUVAYOOR NORTH, PATHANAMTHITTA
DISTRICT, PIN - 691551
BY ADVS.JACOB P.ALEX
JOSEPH P.ALEX
MANU SANKAR P.
AMAL AMIR ALI
RESPONDENT/S:
KRISHNA KUMAR AGARWAL,AGED 47 YEARS
S/O. SURESH CHANDRA AGARWAL, ROOM NO. 105, 6, B.T.M SARANI,
KOLKATA, WEST BENGAL- 700001 (PREVIOUSLY KNOWN AS 6,
BRABOURNE ROAD, KOLKATA,WEST BENGAL-, PIN - 700001
BY ADV AAMIR SOHRAB M. M.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2024, THE COURT
ON 5.3.2025 DELIVERED THE FOLLOWING:
2
OPC 2413/2024
2025:KER:18121
CR
JUDGMENT
(Dated this the 5th day of March 2025) This Original Petition is filed impugning the order dated 18.10.2024, in E.P.No.52/2024 on the files of the Additional District and Sessions Court-IV, Pathanamthitta.
2. Petitioners are arrayed as the Judgment Debtors and respondent herein is the decree holder in Ext.P2, E.P. No.52/2024, filed before the Addl. District Court No. IV, Pathanamthitta. The Execution petition was filed by the respondent seeking enforcement of an Arbitral Award, Ext.P1, dated 23.06.2022, in the matter of D. Monalisa Impex vs. M/s. Karthik Exports & Another.
3. The 1st petitioner is a trader, importer, seller, having its registered office at Kerala, India. 'D. Monalisa Impex', the seller, is a partnership office engaged in export of perishable 3 OPC 2413/2024 2025:KER:18121 consumables across various parts of the world. The respondent, being a trade facilitator, acts as an intermediary between the buyer as well as the seller on commission basis. The sole arbitrator has held in favour of the respondent, and the 1st petitioner was liable to pay an amount of Rs.13,034,234/- to D. Monalisa Impex, the petitioner therein, along with interest at the rate of 8% per annum and the petitioner was also directed to pay an amount of Rs.13,368,445/- to the respondent herein. An appeal was preferred by the petitioners challenging Ext.P1 award before the Hon'ble High Court, Calcutta as AP/762/2022, which is pending consideration.
4. Meanwhile, the respondent herein preferred E.P.No 52/2024, to enforce Ext P1, against the petitioners herein/judgment debtors, to which preliminary objections were filed by the petitioners challenging the maintainability of Ext.P2 4 OPC 2413/2024 2025:KER:18121 before the District Court. Their major contention is that Ext.P2 can only be filed before the Commercial Court, and not before the District Court.
5. However, without adverting to any of the objections raised by the petitioners, the learned district court repelled the contentions regarding the maintainability and held, Ext.P2 to be maintainable before the District Court, by Ext.P5 order dated 18.10.2024. It is against Ext.P5, present O.P (C) stands filed.
6. Heard the counsels appearing for the petitioners as well as the respondents.
7. The counsel for the petitioner challenges the maintainability of the execution petition before the district court by resorting to Section 10(3) and Section 12 of the Commercial Courts Act, 2015 (for short, 'the Act, 2015'). It is contended that by virtue of the above provisions, Ext.P2 should have been filed 5 OPC 2413/2024 2025:KER:18121 before the Commercial Court since that Court is having jurisdiction in the matter. The counsel also contends that the Principal civil court of original jurisdiction is not having jurisdiction to consider execution petition after the enactment of the Act, 2015.
8. In the preliminary objection filed to the abovesaid E.P, it is the specific case of the petitioner that the total amount claimed in the execution petition is much above the specified value, and hence, by virtue of section 6, r/w section 10(3) and section 12 of the Act, 2015, the Commercial Court alone is vested with the jurisdiction to proceed with trial and execution.
9. The District Court has found in the impugned order that the E.P before the district court is maintainable, relying on the decision relied on by the decree holder/respondent herein, in M/s Beta Exim Logistics (P) Ltd. V. M/s.Central Railside 6 OPC 2413/2024 2025:KER:18121 Warehouse Co. Ltd. (2023 KHC Online 195), which was in respect of filing E.P before the District court relating to arbitral awards. It was held by this court that if a more expansive interpretation is given to the word 'application' falling under section 15 of the Act, 2015, to include execution petitions also, then necessarily all the execution petitions pending before all the civil courts falling within the ken of the Act, 2015, will have to be transferred to the Commercial courts, which in turn, will clog the special courts with such matters as no practical purpose shall be served by that transfer because special courts are not conferred with any such additional power other than that of the ordinary civil courts in speed tracking the execution proceedings. Moreover, the execution proceedings stand omitted from the schedule attached to the Act 2015, and hence, it is improper in divesting the jurisdiction with the district court regarding execution 7 OPC 2413/2024 2025:KER:18121 applications.
10. Reliance has also been placed by the District Court in Shaji Augustine (supra); wherein the same question of divesting power of the Principal Civil Court of original jurisdiction to execute arbitral awards after the introduction of the Act 2015, was discussed in detail. It is observed in this decision that, as the procedure for execution is not mentioned anywhere in the Act 2015, there is nothing to indicate that the jurisdiction of other courts with respect to pending execution matters stands excluded.
11. In Jaycee Housing Private Limited and Others v. Registrar (General), Orissa High Court, Cuttack and Ors. [2023 (1) SCC 549], the Hon'ble Supreme Court in paragraphs 24 to 29 held as follows:
"24. Thus, the Objects and Reasons of Commercial Courts Act, 2015 is to provide for speedy disposal of the commercial disputes which includes the arbitration proceedings. To achieve the said Objects, the legislature in its wisdom has specifically conferred the jurisdiction in respect of arbitration matters as 8 OPC 2413/2024 2025:KER:18121 per Section 10 of the Act, 2015. At this stage, it is required to be noted that the Act, 2015 is the Act later in time and therefore when the Act, 2015 has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the Act, 1996. As per settled position of law, it is to be presumed that while enacting the subsequent law, the legislature is conscious of the provisions of the Act prior in time and therefore the later Act shall prevail.
25. It is also required to be noted that even as per Section 15 of the Act, 2015, all suits and applications including applications under the Act, 1996, relating to a commercial dispute of specified value shall have to be transferred to the Commercial Court. Even as per Section 21 of the Act, 2015, shall have overriding effect. It provides that save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force."
26. Therefore, considering the aforestated provisions of the Act, 2015 and the Objects and Reasons for which the Act, 2015 has been enacted and the Commercial Courts, Commercial Division and Commercial Appellate Division in the High Courts are established for speedy disposal of the commercial disputes including the arbitration disputes, 21 Sections 3 & 10 of the Act, 2015 shall prevail and all applications or appeals arising out of arbitration under the provisions of Act, 1996, other than international commercial arbitration, shall be filed in and heard and disposed of by the Commercial Courts, exercising the territorial jurisdiction over such arbitration where such commercial courts have been constituted.
27. If the submission on behalf of the appellants that all applications/appeals arising out of arbitration under the provisions of Act, 1996, other than the international commercial arbitration, shall lie before the Principal Civil 9 OPC 2413/2024 2025:KER:18121 Court of a district, in that case, not only the Objects and Reasons of enactment of Act, 2015 and establishment of commercial courts shall be frustrated, even Section 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 Act, 2015, with respect to arbitration proceedings, the applications or appeals shall lie before the Principal Civil Court of a district. There cannot be two fora with respect to different commercial disputes.
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 Act, 1996 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 Act, 2015. We are in complete agreement with the view taken by the High Court holding so."
12. Section 6 of the Act, 2015, deals with "Jurisdiction of Commercial Court", which reads as follows:
"The Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial dispute of a Specified Value arising out of the entire territory of the State over which it has been vested territorial jurisdiction."10 OPC 2413/2024
2025:KER:18121
13. Section 10 of the same Act gives jurisdiction to the commercial courts in respect of the arbitration matters. Sub Section (3) of Section 10 reads as follows:
"(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any Principal Civil Court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted".
14. Section 16 of the Act, 2015, deals with "Amendments to the Code of Civil Procedure, 1908, in its application to commercial disputes", which prescribes that 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 11 OPC 2413/2024 2025:KER:18121 Schedule. Sub Section (2) of Section 16 prescribes that 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.
15. It is worthwhile to note that in Section 16 of the Act, 2015, Order 21 of the CPC is not touched. Section 2(1) (c) of the Act, 2015, defines the "Commercial disputes". Section 2(2) prescribes that the words and expressions used and not defined in this Act but defined in the Code of Civil Procedure, 1908 (5 of 1908) and the Evidence Act, 1872 (1 of 1872), shall have the same meanings respectively assigned to them in that Code and the Act.
16. A commercial dispute between two parties starts with filing of a suit in the commercial court under Section 10 of the Act, 2015. The first step in any suit is the passing of a decree or 12 OPC 2413/2024 2025:KER:18121 an award, and the second step is its execution. A dispute does not come to an end upon the passing of the decree. The fruits of the decree has to be enjoyed by the decree holder after executing it.
17. Order 21 CPC deals with the "Execution of the decrees and orders", and Rule 10 deals with the "Application for execution". Any decree holder who desires to execute a decree shall apply to the court which passes the decree, or to the officer appointed in this behalf. Rule 11 prescribes that when the decree is for payment of money, the court may, on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor prior to the preparation of a warrant, if he is within the precincts of the court. Except Rule 11, all other applications have to be a written application.
18. In M/s Beta Exim (supra) and Shaji (supra), it was held 13 OPC 2413/2024 2025:KER:18121 that for execution of decrees in commercial dispute, the litigants have to resort to ordinary process as provided under Order 21 CPC, which has to be executed by the Principal Civil Court of original jurisdiction and not by the Commercial Courts.
19. In Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Another v. Him Giri Realtors Pvt. Ltd. and Another., [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 that a judgment or a decree of the Court or the award of an Arbitral Tribunal, do not put an end to the "dispute"14 OPC 2413/2024
2025:KER:18121 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 Vs. 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 Vs. 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 15 OPC 2413/2024 2025:KER:18121 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. 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 16 OPC 2413/2024 2025:KER:18121 "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 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." 17 OPC 2413/2024
2025:KER:18121
20. The Andhra Pradesh High Court also had an occasion to consider a similar issue in Obulapuram Mining Company Pvt. Ltd v. R.K. Mining Private Ltd (2023 SCC online AP 2031) and the relevant portions are as follows:
"22. In view of these contentions and the legal position, this Court is proposing to examine Section 15 of the Commercial Courts Act and Order 21 CPC. The contention urged by the petitioner is that the Commercial Court alone should execute a decree above the specified value while the contention of the respondent is that the civil court alone should execute such a decree as the Commercial Courts Act does not deal with Order 21 C.P.C., at all. The meaning of the word "application"
in Section 15 of the Act also assumes importance.
xxx xxx xxx
27. A reading of these sections and amendments in seriatim shows that the intention of the legislature was only to modify and streamline the procedures and practices relating to suits and applications in suits etc., which are pending for disposal.
28. The heading of Chapter VI of the Act is -
"Amendments to the Provisions of the Code of Civil Procedure, 1908". The amendments to the CPC, refer to the 1st schedule and specifically to Orders 5, 6, 8, 11, 13 (A) of CPC etc., and in addition a newly incorporated Order 15(A) is brought into force. All of them deal with trial and disposal of a suit only. None of the other provisions of the CPC are touched or amended 18 OPC 2413/2024 2025:KER:18121 including Order 21 CPC.
29. In the opinion of this Court this deliberate silence by the legislature, in spite of the need for a law on the subject for quick and efficient disposal of the cases, including commercial disputes, being on everyone's mind makes it very clear that the legislature in its wisdom decided to speed up the trial and disposal of the cases in the commercial court alone. Time and again the Hon'ble Supreme Court of India and various courts have spoken about the need for quick disposal of domestic and international commercial disputes. Hence a conscious effort was made by the Legislature to change the provisions of CPC regarding the trial and disposal of cases for a quicker disposal of the suits and applications. In this Court's opinion and as per settled law the assumption is that the legislature did not make a mistake. It did what it set out to do - to speed up trials. The silence or failure to refer to Order 21 does not mean that the Commercial Court cannot execute a decree. A purposive interpretation has to be given to the provisions of the Act. If it is not so interpreted the Commercial Courts will be powerless in many aspects. If the arguments of the learned senior counsel for the respondent are further extended and as other provisions of C.P.C. are also not touched upon / referred to it would mean that the Commercial Court cannot add or delete parties (Order-I); cannot bring on record the legal representatives (Order
22); cannot grant injunctions (Order 39); order attachment or arrest before judgment (Order 38) and so on. These are a few illustrative aspects that are touched upon. This would virtually render the Commercial Courts non- effective and virtually defeat their purpose / objective. Can it be said that since Order 38 or Order 39 are not mentioned the Commercial Court cannot grant an interim order? This would lead to a collapse of these Courts.
19 OPC 2413/2024 2025:KER:18121 xxx xxx xxx
33. Further, in this Court's opinion the word 'application' occurring in Section 15 of the Act is also not limited to original applications only or to application in suits. Support can be drawn from the provisions of Order 21 CPC itself dealing with execution. Order 21 Rule 10 starts with the words - "Application" for Execution. Rule 11 says an oral "application" is permissible. Order 21 Rule 11(2) talks of a written "application" Similarly Rules 11A, 12, 13, 16 talk of "applications" for execution. The use of the words suits and applications including applications under the Arbitration Act 1996"
make it clear that it is not merely limited to suits and arbitration applications only. An inclusive definition is given to include all "applications" under Section 15. The intention of the Legislature is also clear from a reading of Section 10 of the Commercial Courts Act, which deals with applications and appeals under the Arbitration Act. They are dealt with under this Section. This Court, therefore, holds that the word "application" in Section 15 includes execution applications also. The inclusive definition in Section 15(1) makes this clear.
21. In the judgment reported in Ess Kay Fincorp Ltd v.
Suresh Choudhary and Another, [2020 (1) RLW 93 (Raj.], it is held as follows:
"17. A conjoint reading of Section 10(3) and 15(2) of the Commercial Courts Act makes it clear that an application under Section 36 of the 20 OPC 2413/2024 2025:KER:18121 Arbitration Act, seeking execution of award, satisfies the requirement of "being application arising out of such arbitration under the provisions of the Act of 1996". If such application is pending before any Principal Civil Court of original jurisdiction in a district, the same shall be transferred to Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted. In view of Section 10(3) of the Commercial Courts Act, since the awards in the present set of cases have been rendered in arbitral proceedings, their execution applications filed under Section 36 of the Arbitration Act having regard to provisions of Section 15(3) of the Commercial Courts Act, which contemplates transfer of all such pending applications to Commercial Court, as a legal corollary thereto, would also be liable to be filed and maintained before the Commercial Court and not the ordinary Civil Court/Principal Court of District Judge.
18. In so far as judgment of Chattisgarh High Court in South Eastern Coalfields Limited Vs. Padam Kumar Singhaniya (supra) relied by Mr. Alok Garg, learned counsel for the petitioner is concerned, we are, with great respect, not inclined to concur with the view taken by that Court that word, "application" mentioned in sub-section (2) of Section 15 of the Commercial Courts Act would only mean an original application and not an application for execution, which is preferred after the award has been delivered. In our considered opinion, there is no warrant for taking such narrow interpretation of Section 15(2) of the Commercial Courts Act. Analogy which the learned Judges of Chhattisgarh High Court have taken from proviso to Section 15(2) of the Commercial Courts Act is that since no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court, shall be transferred either under 21 OPC 2413/2024 2025:KER:18121 sub-section (1) or sub-section (2) of Section 15 of the Commercial Courts Act, therefore, application subsequently filed for execution of the award could also not be entertained by the Commercial Court. However, in our view, that is not the correct interpretation of proviso to Section 15(2) of the Commercial Courts Act, which has been engrafted therein only with a limited purpose of ensuring that cases in which arguments have been heard and judgments reserved, are given finality and not required to be reopened so as not to repeat those proceedings all over again.
19. In view of above, we answer the question of law formulated in the beginning of this judgment in the terms that the Commercial Court constituted under Section 3(i) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, as defined in Section 2(b) of that Act, would be the only competent Court to execute an arbitral award on a "commercial dispute"
passed under the Arbitration and Conciliation Act, 1996 and not the Principal Civil Court having the original jurisdiction in the District i.e. the Court of District and Sessions Judge as defined under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996".
22. In Bharat Petroleum Corporation Ltd v. Anoop Kumar Modi (2023 SCC online All 4234), the High Court of Allahabad, held as follows:
"12. The distinction as proposed to be argued for enforcement provided under Section 36 is excluded from the use of word 'Application' 22 OPC 2413/2024 2025:KER:18121 referred to in Section 10(3) of the Commercial Court Act, is on the face of it not acceptable as on a plain reading of provisions contained in Section 10(3) as quoted hereinabove, it is provided that other than International Commercial Arbitration, all 'applications' or 'appeals' arising out of such arbitration under the provisions of the 1996 Act which would ordinarily lies before any Principal Civil Court or original jurisdiction in a district shall be filed in and heard and disposed of by the Commercial Court exercising the territorial jurisdiction.
xxx xxx xxx
16. As regards the judgment cited by the counsel for the petitioner in the case of Beta Exim Logistics (P) Ltd. versus Central Railside Warehouse Co., Ltd. reported in 2023 SCC Online Ker 1392, the Court while dealing with the issue although took notice of mandatory provision of the Commercial Court Act, however, recorded in paragraphs 17 and 20 as under:-
17. Thus, if a more expensive interpretation is given to the word application falling under Section 15 of the C.C. Act, to include execution petitions also, then necessarily all the execution petitions pending before all the civil courts falling within the ken of the C.C. Act will have to be transferred to the Commercial Courts, which in turn will clog the special courts with such matters. Moreover, no practical purpose will be served by such transfer because the Special Courts are not conferred with any additional power than that of the Civil Courts, to speed track execution proceedings, as execution proceedings have been omitted in the 23 OPC 2413/2024 2025:KER:18121 schedule attached to the C.C. Act. Without a faster timeline provided under the C.C. Act, to enforce an award, it is immaterial whether the award is executed by the Civil Court or the Commercial Court.
20. Therefore, the Court of the District Judge Ernakulam, had gone wrong in transferring the execution petition which was not a pending matter at the time of notifying the C.C. Act. Furthermore, the District Court has the jurisdiction to entertain the execution petition because the petitioner resides within the jurisdiction of the said Court and is a Court superior to the Commercial Court.
Hence, no prejudice is caused to the respondent in the execution petition being decided by the District Court.
17. The interpretation and the scope of Section 10(3) of the Commercial Court Act was neither raised nor considered by the Kerala High Court, thus with reverence, I am unable to agree with the view taken by the High Court of Kerala."
23. A Division Bench of Gujarat High Court in Arun Kumar Jagatramka v. Ultrabulk A/S (2022 KHC 3263), 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 24 OPC 2413/2024 2025:KER:18121 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' 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 25 OPC 2413/2024 2025:KER:18121 the commercial court does not have the power to execute.
6.9 In Morlays (B'Ham) Limited. Vs. Roshanlal Ramsahai and Another [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."
24. Section 36 of the Arbitration and Conciliation Act, 1996, provides for enforcement of the arbitral award in accordance with the provisions of the CPC, which reads as follows:
26OPC 2413/2024
2025:KER:18121 Section 36. Enforcement -
"(1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.
(2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.
(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:
Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908.]".
25. As mentioned earlier, Order 21 Rule 10 deals with "Application for execution". Therefore, once a decree is passed, for executing the decree, applications have to be filed before the execution court. Then the question would be whether the same 27 OPC 2413/2024 2025:KER:18121 court, which passed the decree, can execute the same, or whether it should be transferred to the District Court, that is the Principal Civil Court of original jurisdiction for executing the same.
26. Section 51 CPC deals with the "Powers of Court to enforce execution", which prescribes that subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree. Like wise in Section 47, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
27. Part II C.P.C. deals with "Execution". Section 38 deals with "Court by which decree may be executed", where a decree can be executed by the court that passed it or by the court 28 OPC 2413/2024 2025:KER:18121 to which it is sent for execution. So, a conjoint reading of Sections 38, 47 and 51 CPC makes it clear that the court which passed a decree has to execute the same.
28. A reading of Section 16 of the Act, 2015, would show that only a few provisions of the CPC are amended to suit a commercial dispute to a specified value to be adjudicated by a commercial court. A reading of the Schedule would make it clear that what was intended by the amendment is only for the speeding up of the procedure for the trial of the suit and to pass a decree in a time bound manner. The deliberate silence on the part of the legislature, cannot be taken as one, in which the execution power is not given to the commercial courts. It does not mean that Order 21 does not have any application to the commercial courts to execute a decree.
29. In M/s Beta Exim (supra) and Shaji (supra), the 29 OPC 2413/2024 2025:KER:18121 learned Single Judges of this court, while rendering the abovesaid decisions, has considered the jurisdiction of the Principal Court of Original jurisdiction regarding the execution of arbitration matters in commercial disputes and has held that since Section 16 of the Act, 2015, for the purpose of its application to commercial disputes and Sections 10(3), 15(1), 15(3) of the said Act do not take in the word 'execution', the execution proceedings will not have application in commercial courts. But a reading of the entire Act, 2015, coupled with CPC would make it clear that it is the commercial court that is having jurisdiction in this regard and not that of Principal Civil court of original jurisdiction. It is also significant to note that Order 21 Rule 10 CPC deals with the 'Application for execution', where, on passing of a decree, applications for executions have to be filed before the execution court. Thus, if an interpretation as stated in M/s. Beta Exim 30 OPC 2413/2024 2025:KER:18121 (supra), as well as in Shaji (supra) is given effect, then the provisions of CPC which are not amended by Section 16 of the Act, 2015, cannot be invoked by the commercial courts during the trial. All portions of the CPC for trial are applicable to the Act, 2015, even though the amendment does not strictly say so in the Schedule. Unless and otherwise a purposive and liberal interpretation is given to the provisions of the 2015 Act, the entire purpose behind the legislation of the said Act would become futile. In fact, in M/s.Beta Exim (supra), the court was considering Section 15 of the Act, 2015 regarding the transfer of pending cases.
30. Moreover, Section 13 of the Act, 2015, deals with 'Appeals'. Sub Section (1) prescribes that any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court 31 OPC 2413/2024 2025:KER:18121 within a period of sixty days from the date of judgment or order. The Government of Kerala, by notification G.O.(Ms.) N.51/2020/Home dated 24.2.2020, designated the Principal District Courts in each district as Commercial Appellate Courts.
31. It is also significant to note that if the execution proceedings are to be proceeded by the Principal District Judge, then a situation would arise where the court executing the decree of a commercial dispute as well as the court hearing the appeal would be one and the same. This is not intended by the legislature. Thus, a conjoint reading of Section 36 of the Arbitration and Conciliation Act, 1996, Sections 38, 47, 51 and Order 21 Rule 10 CPC, and Sections 6, 10 and 13 of the Act, 2015 would make it clear that the court which passed the decree, that is the commercial court, alone has the power to execute the decree and not the Principal Civil Court of original jurisdiction. 32 OPC 2413/2024
2025:KER:18121 In the result, this O.P.(C.) is allowed, setting aside Ext.P5 order in E.P.No.52 of 2024 on the files of Additional District Court No.IV, Pathanamthitta and the said Court is directed to return the Execution Petition to the decree holder to be presented before the Commercial Court having jurisdiction.
Sd/-
BASANT BALAJI JUDGE JS/dl 33 OPC 2413/2024 2025:KER:18121 APPENDIX OF OP(C) 2413/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ARBITRATION AWARD DATED 23-06- 2022 IN THE MATTER OF D MONALISA IMPEX V. M/S KARTHIK EXPORTS AND ANOTHER Exhibit P2 TRUE COPY OF EP. NO. 52 OF 2024 DATED 16-02-2024 ON THE FILES OF ADDITIONAL DISTRICT COURT NO.IV, PATHANAMTHITTA Exhibit P3 TRUE COPY OF THE PRELIMINARY OBJECTION DATED 23- 09-2024 FILED BY THE 1ST PETITIONER IN EP. NO. 52 OF 2024 BEFORE THE ADDITIONAL DISTRICT COURT NO.IV, PATHANAMTHITTA Exhibit P4 TRUE COPY OF THE PRELIMINARY OBJECTION DATED 10- 09-2024 FILED BY THE 2ND AND 3RD PETITIONER IN EP. NO. 52 OF 2024 BEFORE THE ADDITIONAL DISTRICT COURT NO.IV, PATHANAMTHITTA