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TMI Blog2022 (2) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion was raised on behalf of the petitioner that though the application for setting aside the arbitral award may be pending before the Commercial Court, the execution petition of the contractor would not be competent as it was for the amount below Rs.1 Crore. It was observed that since the award was enforceable in terms of the Code of the Civil Procedure in the same manner as it was the decree of the Court, the Court having jurisdiction over the subject matter could be the court competent to execute it as per the Section 38 of the CPC. Coming to the facts of the present case, it is the decree of English Court, the reciprocating territory, is being executed under Section 44A, CPC. This provision in the CPC, 1908, provides for Execution of decrees passed by the Courts in reciprocating territory. It provides that certified copy of a decree of any superior Courts of any reciprocating territory is filed in the district court, the decree may be executed as if it has been passed by the district court. Sub section (2) of Section 44A provides for filing of certified copy regarding satisfaction of decree to the extent of such satisfaction or adjustments. Sub section (3) says that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate Mr. Vivek Gupta for the petitioner and learned advocate Mr. Aditya Krishnamurthy with learned advocate Mr. Harsh Parekh for the respondent, at length. 2. The challenge in the present Special Civil Application filed under Article 227 of the Constitution, is directed against order dated 4.8.2021 below application Exhibit 65 in Execution Application No. 161 of 2019 passed by the Principal Senior Civil Judge, Jamnagar- the Commercial Court, whereby the prayer of the petitioner to hold that the said executing court did not have the jurisdiction to entertain and decide the execution proceedings, came to be negatived. 2.1 The respondent herein- Ultrabulk A/S is the execution petitioner and the decree-holder in whose favor the decree dated 9.11.2017 is passed by the High Court of Justice, Queen s Bench Division of England and Wales the Commercial Court, for a sum equivalent USD 42,59,395/- with interest. 3. The facts in the background stated in the nutshell are that the petitioner had executed irrecoverable personal guarantee on behalf of the Gujarat NRE Coke Limited. Since the said company failed to pay the dues, the suit came to be instituted by the respondent in Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , CPC. It was therefore, sought to be deduced that commercial courts are not vested with powers of execution. It was contended that the execution decrees of the commercial courts would be governed by the regular provision of CPC and the decrees have to be executed before the court exercising original jurisdiction to entertain the execution petition. 4.2 Learned advocate for the petitioner referred to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Bill 2015, as also the Commercial Courts amendment Bill, 2018, further seeking to press into service the Law Commission of India Report No. 253, in order to support the submission that the Commercial Courts have no powers to execute the decree, nor such powers can be read in the provisions of the Commercial Courts Act, 2015. 4.3 It was submitted with reference to the observations in Kerala Housing Board vs. K. A. Nagamani (2019) 6 SCC 429, which was in the context of enforcement of orders of the District Consumer Forum, State Consumer Commission or the National Consumer Commission that the executing proceedings is materially different from the nature of proceedings for adjudication of consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by judgment-debtor where also the jurisdiction of the Rajkot Commercial Court indirectly was called in question, submitted the decree-holder in its reply. 5. It is entirely germane to notice and note at the outset that in earlier application Exhibit 19 filed by the judgment-debtor before the executing court, the prayer was to transfer the captioned proceedings to a court of competent jurisdiction by declaring that this Commercial Court has no inherent jurisdiction to entertain, try and decide the execution proceedings, since the dispute was not a commercial dispute as defined in Section 2(1)(c) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. The very ground mainly that the alleged personal guarantee did not make the dispute fall in any of the categories to attract the definition of the Commercial Dispute under Section 2(1)(c) of the Commercial Courts Act. The ground was also canvassed that the application could not be said to be arising out of the proceedings of Commercial Court as the dispute before the English Court was also not commercial claim hence the jurisdiction of Commercial Courts under Section 6 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt while cementing its reasoning in rejecting the case of the petitioner and refusing the prayer of the petitioner to dismiss the application 65 alongwith other reasons supplied. 5.2 It could be well said therefore that the ground that the dispute is not commercial dispute and consequentially the Commercial Court lacks inherent jurisdiction to execute the decree, falls flat. It is deprecable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another present proceedings. Be as it may. Repeating the litigation on the same grounds under different pretext and different context tantamount to abuse of process of law. 5.3 The report of the Law Commission court stressed the need for stable and efficient and dispute resolution mechanism in respect of the commercial dispute which was viewed as an object for legislating the Commercial Courts Act. It was inter alia stated that, Quick enforcement of contracts, easy recovery of monetary claims and award of just compensation for damages suffered are absolutely critical to encourage investment and economic activity, which necessarily involves the taking of financial and enforcement r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he execution proceedings were in relation to the arbitral award, and the contention was raised for with reference to the definition of the commercial dispute contained in Section 2(c) of the Commercial Courts Act, that it cannot be said that there was any commercial dispute pending at the execution stage in as much as commercial dispute which had arisen between the parties was already decided and adjudicated. 6.1 While summing up the final decision, the Division Bench inter alia held and directed that, [Para 63(3)] Where the subject matter of an arbitration is a commercial dispute of a specified value and if such arbitration is other than international arbitration, all the application or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 shall be filed in and heard, decided and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such commercial court has been constituted. 6.2 In Vadodara Mahanagar Seva Sadan formally known as Municipal Corporation Vs. M. S. Khurana Engineering Limited, being Special Civil Application No.13736 of 2018, the petitioner Corporation had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent decree passed before the Commercial Court was sought to be executed. The High Court observed, (Para 28) As far as the contention of the senior counsels for the judgment debtors, of proceedings for execution of an arbitral award as a decree being not within the jurisdiction of the Commercial Court / Commercial Division of this Court is concerned, Section 10 of the Commercial Courts Act inter alia provides that where the subject matter of an arbitration is a commercial dispute of a specified value, all applications or appeals arising out of such an arbitration under the provisions of the Arbitration Act that have been filed on the original side of the Court shall be heard and disposed of by the Commercial Division, where such Commercial Division has been constituted in the High Court. It is not in dispute that the subject matter of the arbitration, award whereof is under execution, was of the specified value. 6.3.1 It was the contention canvassed before the Delhi High Court on behalf of the judgment-debtor that the jurisdiction of the Commercial Courts or Commercial Divisions is only over suits or arbitrations, subject matter whereof qualifies as a commercial dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3.3 The Delhi High Court rightly stated that irreconcilable and incongruous situation would be obtained if it is held otherwise that Commercial Court does not have the powers to proceed with the execution. (Para 36) It would be incongruous to hold that the jurisdiction of the Commercial Courts / Commercial Divisions extends only to adjudication of commercial disputes till the stage of adjudication and not to adjudication of commercial disputes arising in the course of execution. Once it is so, the word dispute in Section 2(1)(c) would extend to adjudication of disputes arising during execution of arbitral awards subject whereof falls within the jurisdiction of the Commercial Courts Act and the Commercial Court and Commercial Division would also have jurisdiction over the applications for execution of arbitral awards of a specified value, subject matter whereof was a commercial dispute. 6.3.4 We fully concur with the reasons and decision of the Delhi High Court. 6.4 Coming to the facts of the present case, it is the decree of English Court, the reciprocating territory, is being executed under Section 44A, CPC. This provision in the CPC, 1908, provides for Execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of commercial dispute and now sought to be executed under Section 44A which is deemed in law to be the decree as if it has been passed by district court. Upon conjoint reading of Section 44A and Section 38 CPC, it could be certainly deduced that the decree passed by the English Commercial Court can be executed by the commercial court when presented under Section 44A of the CPC. It becomes a decree as if it has been passed by district court. It would be only proper to read the word the Commercial Court which had passed the decree in Section 44A CPC in place of the word District Court ,when it is a decree passed by foreign court - the reciprocating territory, and sought to be executed. 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 comme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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