Case Note & Summary
The Bombay High Court dismissed three commercial appeals filed by Usha Kakade, Sanjay Kakade, and Kakade Construction Company Pvt. Ltd. against an order dated 22 February 2018 passed by a learned Single Judge in execution proceedings. The impugned order recorded satisfaction of an arbitral award dated 14 July 2014 by way of consent terms under Order XXI Rule 2 of the Code of Civil Procedure, 1908. The appellants contended that the order was a 'judgment' under Section 13(1A) of the Commercial Courts Act, 2015, and therefore appealable. The respondents raised a preliminary objection that the appeals were not maintainable, relying on a prior Coordinate Bench decision dated 9 August 2019 in Commercial Appeal (L) No.109 of 2019, which had dismissed similar appeals as not maintainable. The court held that the execution of an arbitral award is governed by the Arbitration and Conciliation Act, 1996, and appeals are confined to Section 37 thereof. The impugned order was not a 'judgment' under Section 2(9) CPC or Section 13(1A) CCA, and the proviso to Section 13(1A) restricts appeals against orders not enumerated under Order XLIII CPC or Section 37 ACA. The court further held that the earlier decision operated as res judicata. Consequently, the appeals were dismissed as not maintainable. The court granted liberty to the appellants to approach the executing court for modification or review of the consent terms on grounds of illegality under FEMA, if so advised.
Headnote
A) Civil Procedure - Execution of Arbitral Award - Order XXI Rule 2 CPC - Recording Satisfaction - An order recording satisfaction of an arbitral award under Order XXI Rule 2 CPC is not a 'judgment' under Section 13(1A) of the Commercial Courts Act, 2015, and no appeal lies against it. The execution of an arbitral award is governed by the Arbitration and Conciliation Act, 1996, and appeals are confined to Section 37 thereof. (Paras 1-6) B) Commercial Courts Act - Appealability - Section 13(1A) - Judgment vs. Order - The proviso to Section 13(1A) restricts appeals against orders not specifically enumerated under Order XLIII CPC or Section 37 ACA. Even if the impugned order is treated as a 'judgment', the central provision does not create a right of appeal against every judgment; the right must be conferred by statute. The impugned order is not a judgment within the meaning of Section 2(9) CPC read with Section 13(1A) CCA. (Paras 7-8) C) Res Judicata - Same Proceedings - Earlier Coordinate Bench Decision - The issue of maintainability of appeals in the same execution proceedings was conclusively decided by a Coordinate Bench on 9 August 2019 in Commercial Appeal (L) No.109 of 2019. That decision operates as res judicata between the parties, and the present appeals are barred. (Paras 10-11)
Issue of Consideration
Whether appeals under Section 13(1A) of the Commercial Courts Act, 2015 are maintainable against an order passed by a Commercial Court recording satisfaction of an arbitral award under Order XXI Rule 2 of the Code of Civil Procedure, 1908, in execution proceedings governed by the Arbitration and Conciliation Act, 1996.
Final Decision
The appeals are dismissed as not maintainable. The appellants are granted liberty to approach the executing court for modification or review of the consent terms on grounds of illegality under FEMA, if so advised.
Law Points
- Maintainability of appeal
- Section 13(1A) Commercial Courts Act 2015
- Order XXI Rule 2 CPC
- Section 37 Arbitration and Conciliation Act 1996
- Res judicata
- Consent terms recording satisfaction of award
