Webel Technology Limited vs The State Of Jharkhand
2022 Latest Caselaw 2719 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 C.M.P. No. 336 of 2022
            Webel Technology Limited, Kolkata (West Bengal), through its Chief Executive
            Officer, Somnath Chatterjee                                ..... Petitioner
                                          Versus
            The State of Jharkhand, through its Secretary/Principal Secretary, Department
            of Information Technology and E-Governance, Ranchi         ..... Respondent
                                           -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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            For the Petitioner:       Mr. Rupesh Singh
            For the State:            Mr. Devesh Krishna, S.C (Mines)-III
                                           -----


02/18.07.2022     Learned counsel for the petitioner submits that the objection raised by

the office with regard to maintainability of the present C.M.P is not tenable in

view of the order dated 20.08.2020 passed by learned Division Bench of this

Court in Commercial Appeal No. 03/2018.

Heard learned counsel for the parties and perused the aforesaid order

passed by learned Division Bench of this Court, relevant paragraphs of which

read as under:-

"4. Learned counsel for the Respondent at the outset relied upon the judgment passed by the Hon'ble Supreme Court rendered in the case of Kandla Export Corporation and Another versus OCI Corporation and Another reported in (2018) 14 SCC 715, para-13 and 14, to submit that the present appeal is not maintainable. He submits that it has been held by the Hon'ble Supreme Court that section 13 of Commercial Courts Act, 2015 read with Order 43 of Code of Civil Procedure Code, 1908, and section 37 of the Arbitration and Conciliation Act , 1996 has to be strictly construed being mandatory in nature and therefore, the order passed by executing court enforcing the decree is not appealable and accordingly the present appeal is not maintainable. He submits that for this I.A No. 3936 of 2020 has been filed. The learned counsel further submits that while interpreting section 13 of the Commercial Courts Act, 2015 and its proviso, the Hon'ble Supreme Court has held in para 14 of the judgement as under:-

"14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, therefore, not be appealable, and appeals that are mentioned in section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court."

5. Upon this, learned counsel appearing on behalf of the appellant submits that in view of the aforesaid judgment of the Hon'ble Supreme Court, he has nothing to say any further in the present case and conceded that the present appeal is not maintainable.

6. After hearing the counsel for the parties, this court finds that the present appeal is directed against an order passed in proceedings under Section 36 of the Arbitration and Conciliation Act, 1996 whereby execution case has been disposed of upon full satisfaction of the award whereas the specific case of the appellant is that the award has not been fully satisfied and hence the execution proceedings should proceed. It is not in dispute that the impugned order would neither fall under Order XLIII of the CPC, nor under Section 37 of the Arbitration and Conciliation Act, 1996. Therefore, the present appeal filed under Section 13 of the Commercial Courts Act, is not maintainable. This issue is fully covered by the judgement passed by the Hon'ble Supreme Court in the case of Kandla Export Corporation (Supra).

7. Consequently, the present appeal is dismissed as not maintainable."

Since the impugned order dated 26.05.2022 passed by the Presiding

Officer, Commercial Court, Ranchi in Commercial Execution Case No. 10/2008

does not come under the purview of Order XLIII CPC or Section 37 of the

Arbitration and Conciliation Act, 1996, no commercial appeal will lie against the

said order. Hence, the present C.M.P filed by the petitioner is maintainable. The

objection raised by the office with regard to maintainability of the present C.M.P

is hereby overruled.

Mr. Devesh Krishna, learned S.C (Mines)-III appearing on behalf of the

State of Jharkhand, submits that he shall make all possible endeavour to get

C.M.P. No. 221/2022 filed for restoration of Arbitration Appeal No. 06/2009

listed before the appropriate Bench.

In view of the said submission, put up this case after two weeks under

the same heading.

Satish/-                                                      (RAJESH SHANKAR, J)