Gujarat High Court
Hardik Fintrade Pvt. Ltd vs Naynaben H Bhagat on 23 February, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/2007/2026 ORDER DATED: 23/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2007 of 2026
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HARDIK FINTRADE PVT. LTD.
Versus
NAYNABEN H BHAGAT & ANR.
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Appearance:
MR UDAY R BHATT(192) for the Petitioner(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 23/02/2026
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. Heard learned counsel for the petitioner and perused the
record. The present petition invoking extraordinary supervisory
jurisdiction of the High Court under Article 227 of the
Constitution of India has been filed to challenge the order
dated 30.12.2025, passed by the Judge, Commercial Court,
City Civil Court, in rejecting the objections filed by the award
debtor, namely the petitioner herein, and directing it to pay
the decretal amount, as mentioned in the execution petition,
within two weeks, failing which necessary jangam warrant for
the said amount be issued upon the award debtor.
2. Challenging this order, amongst various submissions
made by the learned counsel for the petitioner, it was argued
in essence, that the execution petition was filed after a period
of more than 22 years, and hence, it was barred by time. This
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NEUTRAL CITATION
C/SCA/2007/2026 ORDER DATED: 23/02/2026
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objection raised by the petitioner in the application Exhibit-1
has been decided under the order impugned, noticing that the
award was passed on 10.07.2003. An application under Section
34 of the Act, 1996 challenging the award was filed in the year
2003, which remained pending uptil 09.04.2025, when it was
dismissed on merits. The executing court further records that
various objections, though were raised in the written objections
filed by the learned advocate appearing for the award debtor,
but the main objection as to the maintainability of the
execution petition are two-fold; namely, the execution is not
tenable before the commercial court as there is no commercial
dispute. And the other was to the limitation that the execution
application filed on 14.02.2025, after a period of more than 22
years, is liable to be rejected as time-barred.
3. As regards the objection as to the maintainability of the
execution petition before the commercial court, it is recorded
in the order impugned that since the application is filed for
enforcement of the award, as per the arrangement made in
the City Civil Court, such applications are being assigned to the
commercial courts only. With regard to the second issue as to
whether the pendency of application under Section 34
amounts to automatic stay for enforcement of the award under
Section 36 of the Arbitration and Conciliation Act, 1996, the
executing court had noted the decision of the Apex Court in
the case of Hindustan Construction Company Limited and
Another v. Union of India reported in (2020) 17 SCC 324,
wherein position of law as held in the case of National
Aluminum Company Ltd. (NALCO) v. Pressteel &
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C/SCA/2007/2026 ORDER DATED: 23/02/2026
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Fabrications (P) Ltd. and Anr. reported in 2004 (1) SCC
540, has been clarified, stating that the law stated in NALCO
(supra) that “there is automatic stay on filing of the
application under section 34 was per incuriam”. It is noted by
the executing court that upto 27.11.2019, due to the prevailing
and existing legal position, due to the decision of the Apex
Court in NALCO holding the field for automatic stay of the
arbitral award on filing of an application under Section 34, it
can be said that from 28.11.2019, the right to enforce the
award was accrued for the award holder against the award
debtor.
3. As regards the decision of the Apex Court in Board of
Control for Cricket in India v. Kochi Cricket Private
Limited and Others reported in 2018 (6) SCC 287 delivered
on 15.03.2018 heavily relied by learned counsel for the
petitioner, it is noted that in the said decision, point of
limitation was not adjudicated. It was also noted that when the
decision of the Apex Court in NALCO (supra) stating the law
pertaining to automatic stay of the arbitral award with the
filing of Section-34 application under the Arbitration and
Conciliation Act, 1996 was operating the field, prudently no
award holder even think to file the application for enforcement
of the award. The time period for filing the application seeking
execution of the award, thus, would commence from
28.11.2019, after the clarification was given by the Apex Court
in Hindustan Construction Company Limited decided on
27.11.2019.
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C/SCA/2007/2026 ORDER DATED: 23/02/2026
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4. The contention of learned counsel for the petitioner that
the present petition has been filed by invoking both Articles
226 and 227 of the Constitution of India to assail the order
passed by the executing court in the commercial execution
case, is to be rejected outrightly being against the principle of
law laid down by the Apex Court in Radhey Shyam &
Another vs Chhabi Nath & Others reported in (2015) 5
SCC 423. As regards the contention with regard to the
retroactive effect of the judgment of Apex Court in Hindustan
Construction Company Limited (supra) and the submissions
that the said judgment being clarificatory in nature and the
limitation being procedural law, it relates to the date of filing of
the application under Section 34, suffice it to say that the
position of law stated by the Apex Court in NALCO (supra)
remained in force as law of the land until 27.11.2019, when the
decision in NALCO (supra) was held to be per incuriam.
5. The objections with regard to the limitation in filing the
execution application or the action of the respondent in not
filing the execution application during pendency of the
application under Section 34 of the Act 1996, during the period
from 2004 to 27.11.2019, following the decision in NALCO
(supra) cannot be sustained. The period during which the
application under Section 34 filed by the petitioner herein
remained pending, without there being any stay of the effect
and operation of the award due to the judgment of Apex Court
in NALCO (supra), cannot run against the respondent, and has
to be excluded from the total period of limitation for filing of
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C/SCA/2007/2026 ORDER DATED: 23/02/2026
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the execution application under Section 36 for enforcement of
the award.
6. Taking note of the above, we do not find any substance in
the submission of the learned counsel for the petitioner to
assail the order impugned dated 30.12.2025 for execution of
the award passed on 10.07.2003. No error can be found in the
decision of the executing court in rejecting both the objections
as to the maintainability of the execution application with the
reasoning given therein, noted herein above. The present
petition under Article 227 of the Constitution of India is, thus,
liable to be dismissed outrightly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
R.S. MALEK
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