Telangana High Court
Nagarjuna Fertilizers And Chemicals … vs Tecnimont S.P.A on 3 August, 2026
Author: K. Lakshman
Bench: K. Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE JUSTICE B.R. MADHUSUDHAN RAO
ORIGINAL SIDE APPEAL Nos. 2 OF 2025 AND 1 OF 2026
Between in Both the appeals:
M/s. Nagarjuna Fertilizers and Chemicals Ltd. ....Appellant
and
M/s. Tecnimont S.P.A. and others ..Respondents
DATE OF COMMON ORDER PASSED: 03.08.2026
SUBMITTED FOR APPROVAL.
THE HON'BLE SRI JUSTICE K.LAKSHMAN
1 Whether Reporters of Local newspapers
may be allowed to see the Judgment? Yes/No
Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3 Whether His Lordship wish to see the fair
copy of the Judgment? Yes/No
________________________
JUSTICE K.LAKSHMAN
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE JUSTICE B.R. MADHUSUDHAN RAO
+ORIGINAL SIDE APPEAL Nos. 2 OF 2025 AND 1 OF 2026
% Delivered on: 03-08-2026
Between in Both the appeals:
#M/s. Nagarjuna Fertilizers and Chemicals Ltd. ....Appellant
and
$ M/s. Tecnimont S.P.A. and others ..Respondents
! For Appellant Mr. Sunil B.Ganu, learned Senior counsel
representing Mr. K.S.Vishwajit, and Mr.
Jai Kishan Solanki, learned counsel for the
appellant.
^ For Respondents Mr. Duvva Pavan Kumar, learned counsel
representing M/s.MZM Legal Hyderabad
LLP,
<Gist :
> Head Note
1. (2011) 8 SCC 333
2. (2017) 14 SCC 225
3. (2018) 14 SCC 715
4. (2011) 113 (6) Bom. LR 3835
5. Judgment dated 31.12.2018 in ICOMA Appeal No. 1 of 2018
passed by the High Court of Judicature at Hyderabad
6. Judgment dated 01.05.2025 in W.A. No. 520 of 2025 passed by
the High Court for the State of Telangana
7. 2020 SCC OnLine Del. 477
8. (2023) 1 SCC 634
3
9. (1981) 4 SCC 8
10. (1988) 2 SCC 1
11. (2003) 10 SCC 361
12. (2004) 11 SCC 672
13. 2023 SCC OnLine Del 511
14. 2025 SCC OnLine Del 9140
15. 2022 SCC OnLine Bom 3152
16. (1989) 1 SCC 101
17. (1990) 1 SCC 193
18. (2011) 11 SCC 198
19. (2002) 4 SCC 388
20. (2021) 16 SCC 536
21. 2022 SCC OnLine Kar 1631
22. 2024 SCC OnLine AP 4121
4
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE JUSTICE B.R. MADHUSUDHAN RAO
ORIGINAL SIDE APPEAL Nos. 2 OF 2025 AND 1 OF 2026
Date:03.08.2026
Between:
M/s. Nagarjuna Fertilizers and Chemicals Limited
...Appellant
and
M/s. Tecnimont S.P.A. and others ...Respondents
ORIGINAL SIDE APPEAL No. 1 of 2026
Between:
M/s. Nagarjuna Fertilizers and Chemicals Limited
...Appellant
And
M/s. Tecnimont SPA and others ...Respondents
COMMON JUDGMENT
(Per Hon’ble Sri Justice K. Lakshman)
Heard Mr. Sunil B.Ganu, learned Senior counsel
representing Mr. K.S.Vishwajit and Mr. Jai Kishan Solanki,
learned counsel for the appellant and Mr. Duvva Pavan Kumar,
learned counsel representing M/s.MZM Legal Hyderabad LLP,
appearing on behalf of respondents, in both the appeals.
5
2-A.OSA No. 2 of 2025 has been filed by the Appellant
challenging the order dated 27.06.2025 passed by the learned
Single Judge in EXEP No. 1 of 2018. Vide the said order, the
learned Single Judge held that the execution petition filed by
Respondent No. 1 herein was maintainable.
2-B. OSA No. 1 of 2026 has been file by the Appellant
challenging the order dated 10.12.2025 passed by the learned
Single Judge in EXEP No. 1 of 2018. Vide the said order, the
learned Single Judge directed provisional attachment of all the
bank accounts of the Appellant.
3. Since both the impugned orders were passed against the
Appellant and arose out of EXEP No. 1 of 2018, they were heard
together and are being disposed of by this common judgment.
4. We have heard Mr. Sunil B. Ganu, learned Senior Counsel
representing Mr. K.S. Vishwajit and Mr. Jai Kishan Solanki,
learned Counsel for the Appellant in OSA No. 2 of 2025 and OSA
No. 1 of 2026, respectively. Also, heard Mr. Duvva Pavan Kumar,
representing M/s MZM Legal Hyderabad LLP, learned counsel for
Respondent No. 1.
6
5. The Appellant herein is a company incorporated in India.
Respondent No. 1 is a company incorporated in Italy. Both the
companies entered into two agreements, dated 15.12.2013, titled
“Early Works of Services” for providing onshore and offshore
services in relation to Fertilizer Project-3 at Kakinada, Andhra
Pradesh. Disputes arose between the parties on the issue of
payments. As such, Respondent No. 1 initiated arbitration
proceedings against the Appellant.
6. Clause 9 (g) of the agreement provides that the governing
law is the Indian law and the Courts at Hyderabad shall have
exclusive jurisdiction. Likewise, Clause 9 (h) provided that the
resolution of disputes shall be through arbitration. The said clauses
are extracted below:
“9(g)…….. This Work Order shall be
governed by and be construed in accordance
with the laws of India. The parties subject
themselves to the exclusive jurisdiction of the
Courts at Hyderabad, Andhra Pradesh to the
exclusion of others.”
“9 (h) Disputes and Arbitration
1. The Parties agree to seek to resolve any
dispute arising between them by mutual
7consultation, to be commenced by the
delivery of a written notice by one Party to
the other that a Dispute has arisen.
2. Any disputes or differences arising out of
or relating to this Work Order that cannot be
settled amicably by the Parties be referred to
final determination by arbitration in
accordance with this clause.
3. The arbitration shall be conducted
according to the LCIA Rules. The seat of the
arbitration shalt be New Delhi or such other
place as may be mutually agreed by the
Parties in India. The language of the
arbitration shall be English. In case of
conflict between the LCIA Rules and the
provisions of this clause, the provisions
hereof shall prevail. The provisions of the
Arbitration and Conciliation Act, 1996 shall
apply to such arbitration.
4. The arbitral tribunal shall consist of three
arbitrators. Each Party shall nominate one
arbitrator. The two arbitrators so nominated
shall, in turn, nominate the third arbitrator
who shall serve as the chairman of the arbitral
tribunal. If a Party fails to nominate its
arbitrator within a period of twenty (20) days
after receiving notice of the arbitration, or if
the two arbitrators appointed cannot agree on
the third arbitrator within a period of twenty
(20) days after appointment of the second
arbitrator, then such arbitrator shall be
appointed in accordance with the Arbitration
and Conciliation Act, 1996.
5. Arbitrators nominated or appointed by
NFCL, the Contractor, or the LCIA, as the
case may be, shall be persons with experience
8of the interpretation of contracts. No
arbitrator shall be a present or former
employee or agent of, or consultant or
counsel to, any Party or any affiliate thereof:
6. The Parties and the arbitral tribunal shall
keep confidential all matters relating to
arbitration proceedings commenced including
any award made by the arbitral tribunal and
any related court proceedings.
7. The Parties shall bear respective cost for
Arbitration pending the Arbitral award.
8. The arbitral tribunal shall have power to
direct a party to pay some or all of the other
Party’s costs, and to direct which Party (or in
which proportions the Parties) should pay the
arbitrators fees and expenses.”
7. It is apt to note that as Respondent No. 1 is a foreign
party, i.e., a company incorporated in Italy, the arbitration
proceedings between the parties constituted an international
commercial arbitration under Section 2(1)(f) of the Arbitration &
Conciliation Act, 1996 [hereinafter “the Act, 1996”]. Further, as
the seat of arbitration was New Delhi, India, Part I of the Act,
1996, applies to the arbitral proceedings.
8. The Arbitral Tribunal, constituted under the aegis of the
LCIA, passed an award dated 21.10.2017 in favour of Respondent
No. 1 herein. Vide the said award, Respondent No. 1 was awarded:
9
(i) Principal amount of USD 877,500/- along with interest up to the
date of award – USD 577,400/-; (ii) Principal amount of EUR 455,
000/- along with interest up to the date of award – EUR 299,000/-;
(iii) further interest @12% per annum from the date of award till
payment; and (iv) costs of £ 26332.90/- .
9. Aggrieved by the award dated 21.10.2017, the Appellant
herein filed C.O.P. No. 15 of 2018 under Section 34 of the Act,
1996, before the Commercial Court, seeking to set aside the same.
The learned Commercial Court vide order dated 14.06.2018
dismissed C.O.P. No. 15 of 2018 as not maintainable. It held that,
as the arbitral proceedings between the parties constituted
international commercial arbitration, an application under Section
34 of the Act, 1996, lies before the High Court.
10. Thereafter, the Appellant filed ICOMAOA No. 3 of
2018, under Section 34 of the Act, 1996, before this Court. Along
with the said application filed under Section 34 of the Act, 1996,
the Appellant had filed I.A. No. 1 of 2018, i.e., an application
under Section 36(2) of the Act, 1996, seeking stay of the operation
of the award dated 21.10.2017. Vide order dated 05.10.2018, the
10
learned Single Judge had stayed the operation of the award on a
condition to deposit 75% of the awarded amount within a period 06
weeks from the date of the order. Instead of complying with the
same, the Appellant had challenged the said order before a
Division Bench of this Court. Vide order dated 16.11.2018, the stay
order dated 05.10.2018 was modified. The condition to deposit
75% of the awarded amount was reduced to 50% to be deposited in
two instalments of 25% each. The first instalment was to be paid
within 06 weeks from the date of the order, i.e., on or before
28.12.2018, and the second instalment in the next 06 weeks. The
Appellant failed to deposit the awarded amount in terms of the
Division Bench’s order. Therefore, the appeal filed by the
Appellant was dismissed. It is pertinent to note that, as the awarded
amount was not deposited, no stay operated on the award dated
21.10.2017.
11. While the proceedings before the learned Commercial
Court were pending, Respondent No. 1 (the award-holder) had
already filed an application under Section 36(1) of the Act, 1996,
seeking enforcement of the award dated 21.10.2017. The said
11
enforcement application was filed before this Court as EXEP No. 1
of 2018. Along with the said application, Respondent No. 1 filed
I.A. No. 1 of 2018 seeking attachment of the properties of the
Appellant. Vide order dated 08.11.2024, the learned Single Judge,
noting that no stay operated on the award dated 21.10.2017,
directed the Appellant to file an affidavit disclosing its moveable
and immovable assets. Instead of complying with the said order,
the Appellant filed I.A. No. 1 of 2024 seeking to recall the order
dated 08.11.2024. The learned Single Judge vide order dated
12.12.2024 dismissed I.A. No. 1 of 2024.
12. Against the said orders dated 12.12.2024 and
08.11.2024, the Appellant filed OSA No. 3 of 2024 and OSA No. 4
of 2024, respectively, before a Division Bench of this Court. Vide
common order dated 18.12.2024, recording the consent of learned
counsel appearing for the parties, the Division Bench disposed of
OSA Nos. 3 and 4 of 2024, directing the learned Single Judge to
first decide the issue of maintainability of EXEP No. 1 of 2018.
Likewise, the learned Single Judge was also directed to rehear the
parties on I.A. No. 1 of 2024 in EXEP No. 1 of 2018.
12
13. On remand, the learned Single Judge vide the impugned
order dated 27.06.2025 held that the execution petition bearing
EXEP No. 1 of 2018, filed by Respondent No. 1, was maintainable.
The learned Single Judge held that under Section 2(1)(e) of the
Act, 1996 r/w Section 10(1) of the Commercial Courts Act, 2015
[hereinafter “the Act, 2015”], an enforcement application/
execution petition in relation to the final award passed in an
international commercial arbitration is the jurisdictional High
Court.
14. Aggrieved by the finding that EXEP No. 1 of 2018 was
maintainable, the Appellant has filed the present Original Side
Appeals. It is pertinent to note that OSA No. 2 of 2025 has been
filed under Clause 15 of the Letters Patent.
15. While OSA No. 2 of 2025 was pending, the learned
Single Judge had passed the impugned order dated 10.12.2025
directing provisional attachment of the bank accounts of the
Appellant. Aggrieved by the same, the Appellant filed OSA No. 1
of 2026.
13
16. Respondent No. 1, vide I.A. No. 4 of 2025, raised a
preliminary objection regarding the maintainability of OSA No. 2
of 2025. The issue of maintainability was also raised in relation to
OSA No. 1 of 2026. Without delving into the merits raised in the
present appeals against the correctness of the impugned orders, this
Court deems it appropriate to decide the issue of maintainability of
the present Original Side Appeals, filed under Clause 15 of the
Letters Patent.
17. According to Respondent No. 1, a Letters Patent Appeal
is not maintainable against the impugned orders. It was contended
that the execution proceedings (EXEP No. 1 of 2018) are pending
before the Commercial Division of this Court. According to
Respondent No. 1, the learned Single Judge passed the impugned
orders while exercising jurisdiction under the Act, 2015. As per the
Proviso to Section 13(1A) of the Act, 2015, an appeal to the
Commercial Appellate Division of the High Court against any
order passed by the Commercial Division of the High Court lies
only if such order is appealable under Order XLIII of the Code of
Civil Procedure [hereinafter “the CPC“] or if such order is
14
appealable under Section 37 of the Act, 1996. Further, Section
13(2) of the Act, 1996, bars a Letters Patent Appeal against any
order passed by the Commercial Division otherwise than in
accordance with the Act, 2015. Therefore, as the impugned orders
are neither appealable under Order XLIII nor under Section 37 of
the Act, 1996, the present Original Side Appeals, under Clause 15
of the Letters Patent of this Court, are also not maintainable.
18. Respondent No. 1 also argued that the Act, 1996, and
the Act, 2015, are self-contained codes which provide the remedy
of appeal and the manner in which the appeal is to be presented. A
Letters Patent Appeal, against an order passed under such self-
contained codes, is not maintainable.
19. In support of its arguments on maintainability,
Respondent No. 1 relied upon the following judgments:
i. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.1
ii. Union of India v. Simplex Infrastructures 2
iii. Kandla Export Corporation v. OCI
Corporation31
(2011) 8 SCC 333
2
(2017) 14 SCC 225
3
(2018) 14 SCC 715
15iv. Jet Airways (India) Ltd. v. Sahara Airlines
Ltd. 4v. Nagarjuna Fertilizers & Chemicals Ltd. v.
Tecnimont SpA & Ors.5
vi. Residents Welfare Association v. The State of
Telangana & Ors.6.
20. The Appellant, on the other hand, contended that the
present Original Side Appeals are maintainable. It is pertinent to
note that, the Appellant, in its Counter Affidavit filed in reply to
I.A. No. 4 of 2025 in OSA No. 2 of 2025 and its Written
Submissions, does not dispute the applicability of the Act, 2015.
According to the Appellant, Section 13(1A) of the Act, 2015,
cannot be read as limiting the right of appeal. Despite the bar under
Section 13(2) of the Act, 2015, a Letters Patent Appeal, according
to the Appellant, is maintainable as the impugned orders qualify as
a “judgment”.
4
(2011) 113 (6) Bom. LR 3835
5
Judgment dated 31.12.2018 in ICOMA Appeal No. 1 of 2018 passed by the
High Court of Judicature at Hyderabad
6
Judgment dated 01.05.2025 in W.A. No. 520 of 2025 passed by the High
Court for the State of Telangana
16
21. In support of its contentions on maintainability, the
Appellant relied upon the following judgments:
i. D & H India Ltd. v. Superon Schweisstechnik
India Ltd.7ii. Shyam Sel and Power Ltd. v. Shyam Steel
Industries Ltd. 8; and
22. We have heard learned Senior Counsel for the Appellant
and learned counsel appearing for the respondents extensively and
gave thoughtful consideration of the same including the principle
laid down in the aforesaid judgments.
23. After examining the law and the contentions raised by
the parties, this Court holds that the present Original Side Appeals
filed under Clause 15 of the Letters Patent are not maintainable.
The arguments advanced on behalf of the Appellant are
misconceived.
24. It is undisputed that the execution proceedings before the
learned Single Judge were initiated under the Act, 1996. The Act,
7
2020 SCC OnLine Del. 477
8
(2023) 1 SCC 634
9
(1981) 4 SCC 8
17
1996, is a self-contained code which governs all matters pertaining
to arbitration, including the right to file appeals. It is trite law that a
self-contained code is a special enactment. Such special enactment
prevails over general enactments. The Act, 1996, is a special
enactment which prevails over the general law of the Letters
Patent. Therefore, if right to appeal is not provided under the Act,
1996, no appeal can be filed invoking the Clause 15 of the Letters
Patent.
25. In this regard, it is apposite to refer to the Hon’ble
Supreme Court’s decision in Fuerst Day Lawson Ltd.(supra). The
question before the Court was whether an order which is not
appealable under the Act, 1996, would nonetheless be appealable
under the Letters Patent. Noting that the Act, 1996, is a self-
contained code which prevails over the provisions of the Letters
Patent, the Court held that no appeal under the Letters Patent
would lie against an order passed under the Act, 1996. The relevant
paragraphs are extracted below:
“Leave granted in SLP (C) No. 31068 of 2009 and SLP
(C) No. 4648 of 2010. The common question that arises
for consideration by the Court in this batch of cases is
18whether an order, though not appealable under Section
50 of the Arbitration and Conciliation Act, 1996
(hereinafter “the 1996 Act”), would nevertheless be
subject to appeal under the relevant provision of the
Letters Patent of the High Court. In other words even
though the Arbitration Act does not envisage or permit
an appeal from the order, the party aggrieved by it can
still have his way, bypassing the Act and taking recourse
to another jurisdiction.
XXXXX
3. A correct answer to both the questions would depend
upon how the 1996 Act is to be viewed. Do the
provisions of the 1996 Act constitute a complete code
for matters arising out of an arbitration proceeding, the
making of the award and the enforcement of the award?
If the answer to the question is in the affirmative then,
obviously, all other jurisdictions, including the Letters
Patent jurisdiction of the High Court would stand
excluded but in case the answer is in the negative then,
of course, the contention of Mr Sundaram must be
accepted.
XXXXX
36. The decisions noticed so far lay down certain broad
principles that may be stated as follows:
(i) Normally, once an appeal reaches the High Court
it has to be determined according to the rules of practice
and procedure of the High Court and in accordance with
19the provisions of the charter under which the High Court
is constituted and which confers on it power in respect
to the method and manner of exercising that power.
(ii) When a statute merely directs that an appeal shall
lie to a court already established then that appeal must
be regulated by the practice and procedure of that court.
(iii) The High Court derives its intra-court appeal
jurisdiction under the Charter by which it was
established and its powers under the Letters Patent were
recognised and saved by Section 108 of the Government
of India Act, 1915, Section 223 of the Government of
India Act, 1935 and finally, by Article 225 of the
Constitution of India. The High Court, therefore, cannot
be divested of its Letters Patent jurisdiction unless
provided for expressly or by necessary intendment by
some special statute.
(iv) If the pronouncement of the Single Judge
qualifies as a “judgment”, in the absence of any bar
created by a statute either expressly or by necessary
implication, it would be subject to appeal under the
relevant clause of the Letters Patent of the High Court.
(v) Since Section 104(1) CPC specifically saves the
letters patent appeal; it could only be excluded by an
express mention in Section 104(2). In the absence of any
express mention in Section 104(2), the maintainability
of a letters patent appeal is saved by virtue of Section
104(1).
20
(vi) Limitation of a right of appeal in absence of any
provision in a statute cannot be readily inferred. The
appellate jurisdiction of a superior court cannot be taken
as excluded simply because a subordinate court
exercises its special jurisdiction.
(vii) The exception to the aforementioned rule is
where the special Act sets out a self-contained code
and in that event the applicability of the general law
procedure would be impliedly excluded. The express
provision need not refer to or use the words “letters
patent” but if on a reading of the provision it is clear
that all further appeals are barred then even a letters
patent appeal would be barred.
XXXXX
38. In Mohindra Supply Co. [AIR 1962 SC 256 : (1962)
3 SCR 497] , a Bench of four Judges of this Court held
that a letters patent appeal against an order passed by a
Single Judge of the High Court on an appeal under
Section 39(1) of the 1940 Act was barred in terms of
sub-section (2) of Section 39. This decision is based on
the bar against further appeals as contained in sub-
section (2) of Section 39 of the 1940 Act and, therefore,
it may not have a direct bearing on the question
presently under consideration.
39. More to the point are two later decisions.
In Gourangalal Chatterjee [(1993) 3 SCC 1] , a Bench
of two Judges of this Court held that an order, against
21
which no appeal would lie under Section 39(1) of the
1940 Act, could not be taken in appeal before the
Division Bench of the High Court under its Letters
Patent. The same view was reaffirmed by a Bench of
three Judges of this Court in Aradhana Trading
Co. [(2002) 4 SCC 447]
40. In regard to these two decisions, Mr Sundaram took
the position that both Gourangalal Chatterjee[(1993) 3
SCC 1] and Aradhana Trading Co. [(2002) 4 SCC 447]
were rendered on Section 39 of the 1940 Act, the
equivalent of which is Section 37 of the 1996 Act. In
view of the two decisions, he conceded that in the event
an order was not appealable under Section 37(1) of the
1996 Act, it would not be subject to appeal under the
Letters Patent of the High Court.
XXXXX
89. It is, thus, to be seen that Arbitration Act, 1940,
from its inception and right through to 2004 (in P.S.
Sathappan [(2004) 11 SCC 672] ) was held to be a
self-contained code. Now, if the Arbitration Act, 1940
was held to be a self-contained code, on matters
pertaining to arbitration, the Arbitration and
Conciliation Act, 1996, which consolidates, amends
and designs the law relating to arbitration to bring it,
as much as possible, in harmony with
the Uncitral Model must be held only to be more so.
Once it is held that the Arbitration Act is a self-
22
contained code and exhaustive, then it must also be
held, using the lucid expression of Tulzapurkar, J.,
that it carries with it “a negative import that only
such acts as are mentioned in the Act are permissible
to be done and acts or things not mentioned therein
are not permissible to be done”. In other words, a
letters patent appeal would be excluded by the
application of one of the general principles that
where the special Act sets out a self-contained code
the applicability of the general law procedure would
be impliedly excluded.
90. We, thus, arrive at the conclusion regarding the
exclusion of a letters patent appeal in two different
ways; one, so to say, on a micro basis by examining the
scheme devised by Sections 49 and 50 of the 1996 Act
and the radical change that it brings about in the earlier
provision of appeal under Section 6 of the 1961 Act and
the other on a macro basis by taking into account the
nature and character of the 1996 Act as a self-contained
and exhaustive code in itself.
91. In light of the discussions made above, it must be
held that no letters patent appeal will lie against an
order which is not appealable under Section 50 of the
Arbitration and Conciliation Act, 1996.”
26. It is also noteworthy that the jurisdiction conferred on
the High Courts under Section 2(1)(e) of the Act, 1996, in relation
23
to international commercial arbitration is special jurisdiction. This
special jurisdiction is also conferred under Section 10(1) of the
Act, 2015, which states that all matters pertaining to an
international commercial arbitration shall be heard by the
Commercial Division of the High Court. No Letters Patent Appeal
would lie against an order passed in exercise of such special
jurisdiction, unless a right to appeal under the Letters Patent is
expressly provided.
27. In Upadhyaya Hargovind Devshanker v.
Dhirendrasinh Virbhadrasinhji Solanki 10, the issue before the
Hon’ble Supreme Court was whether a Letters Patent Appeal
would lie against an order passed by the High Court under the
Representation of Peoples Act, 1951. The Court held that High
Courts exercise special jurisdiction while dealing with election
petitions. Therefore, no Letters Patent Appeal would lie. The
relevant paragraph is extracted below:
17. The relevant part of clause 15 of the Letters Patent
which is referred to above provides for an appeal against
a judgment passed by a Single Judge of a High Court to10
(1988) 2 SCC 1
24the same High Court and the scope of the said appellate
power has been explained by this Court in Shah Babulal
Khimji v. Jayaben D. Kania [(1981) 4 SCC 8 : AIR
1981 SC 1786 : (1982) 1 SCR 187] An appeal no doubt
lies under that clause from an order of a Single Judge of
the High Court exercising original jurisdiction to the
High Court itself irrespective of the fact that the
judgment is preliminary or final or that it is one passed
at an interlocutory stage provided it satisfies the
conditions set out in the above decision but the said
provision cannot be extended to an election petition
filed under the Act. Conferment of the power to try
an election petition filed under the Act does not
amount to enlargement of the existing jurisdiction of
the High Court. The jurisdiction exercisable by the
Single Judge under the Act is a special jurisdiction
conferred on the High Court by virtue of Article
329(b) of the Constitution. Having regard to the
history of the legislation and the limited nature of the
appeal expressly provided in Section 116-A of the Act
it should be held that any other right of appeal
(excluding that under the Constitution) is taken away
by necessary implication. We, therefore, find it
difficult to subscribe to the view that when once the
jurisdiction to try an election petition is conferred on
the High Court all other powers incidental to the
ordinary original jurisdiction exercised by a Single
Judge to a High Court would become applicable to
25an election petition filed under the Act. It is no doubt
true that in Dr Chotalal Jivabhal Palel case [12 Guj LR
850] the Division Bench to the High Court of Gujarat
applied to the rule laid down in National Telephone
Company Ltd.v. Postmaster General [1913 AC 546,
552] , namely : “When a question is stated to be referred
to an established court without more, it, … imports that
the ordinary incidents of the procedure of that court are
to attach, and also that any general right of appeal from
its decisions likewise attaches.” (emphasis added) to an
election petition filed under the Act which the High
Court could try in exercise of the special jurisdiction
conferred on it by the Act and held that except an order
under Section 98 or Section 99 of the Act which was
made expressly appealable under Section 116-A of the
Act to this Court all other orders passed by the Judge
trying an election petition would be appealable to the
High Court under clause 15 of the Letters Patent. The
principle applied by the High Court is not an unqualified
case. That rule itself suggests that even where a court is
asked to hear a case, it is quite possible that the nature of
the jurisdiction may be such that all the incidents of
procedure or any general right of appeal from its
decision may not be attracted. Perhaps the Division
Bench would not have reached the said conclusion if it
had considered the effect of Article 329(b) of the
Constitution which authorised the creation of an
authority for trying disputes arising out of elections to
26the Houses of Parliament and to the Houses of State
Legislatures and the history and the scheme of the Act
and the limited right of appeal provided in Section 116-
A of the Act. We do not find any discussion about the
effect of the constitutional provision in Article 329(b) in
the course of the said decision. There was also no
adequate appreciation of the need to construe the Act as
a complete code regarding all matters relating to
settlement of election disputes. It is significant that in
sub-section (7) of Section 86 of the Act it is stated that
every election petition shall be tried as expeditiously as
possible and endeavour shall be made to conclude the
trial within six months from the date on which the
election petition is presented to the High Court for trial.
If Parliament intended that the Division Bench of the
High Court should exercise its appellate jurisdiction
under clause 15 of the Letters Patent of the High
Court probably it would not have enacted sub-
section (7) of Section 86 of the Act having regard to
the well-known tendency of one or the other party to
an election petition preferring appeals against
interlocutory orders to the Division Bench. The
presence of such a remedy is enough to defeat the
object of enacting sub-section (7) of Section 86. If
such appeals against interlocutory orders to the High
Court are permitted perhaps no election dispute will
be finally settled until the next election becomes due.
The intention of Parliament is that at the level of the
27
High Court only the Judge who is asked by the
learned Chief Justice to try an election petition
should be the sole judge to decide any question
arising out of any such election petition and that at
the appellate stage the Supreme Court alone should
deal with any matter arising out of the election
petition. We are of the view that as regards the
jurisdiction to try an election petition and the right of
appeal of the parties to an election petition, the
provisions of the Act (apart from the provisions in
the Constitution) constitute a complete code and no
other Judge or Judges other than the Single Judge of
the High Court who is asked to try an election
petition and the Supreme Court exercising appellate
powers under Section 116-A of the Act in respect of
orders passed under Section 98 or Section 99 of the
Act or under Article 136 of the Constitution in
respect of other orders can have any jurisdiction to
deal with any matter arising out of an election
petition filed under the Act. We do not therefore agree
with the view expressed on this question by the High
Court of Gujarat in Dr Chotalal Jivabhai Patel case [12
Guj LR 850] . We therefore overrule the said decision.
We also overrule the decision of the Madras High Court
in Kadiravan alias Shamsudeen v. B.
Thirumalaikumar [ILR (1970) 2 Mad 183] and the
decision of the Madhya Pradesh High Court in Laxmi
Narayan Nayak v. Ramratan Chaturvedi [AIR 1986 MP
28
165 (FB)] which have taken the same view as in Dr
Chotalal Jivabhai Patel case [12 Guj LR 850] . We are,
however, in agreement with the view expressed by the
High Court of Allahabad in Siaram v. Nathuram [1968
All LJ 576] and by the High Court of Rajasthan
in Ramdhan v. Bhanwarlal [AIR 1985 Raj 185] which
have held that by necessary implication an appeal to the
High Court from an interlocutory order passed by the
Single Judge of the High Court in the course of a trial of
an election petition filed under the Act is excluded. The
reasons given in the latter case by the Full Bench of the
Rajasthan High Court are indeed quite substantial.
28. Apart from the fact that the Act, 1996, is a self-
contained code, a Letters Patent Appeal against interlocutory
orders is expressly barred under the Act, 2015. The applicability of
the Act, 2015, is not disputed by the parties. Sections 13(1A) r/w
13(2) of the Act, 2015, explicitly bars a Letters Patent Appeal
against an order passed by the Commercial Division of the High
Court, unless the said order is appealable under Order XLIII of the
CPC or the order is appealable under Section 37 of the Act, 2015.
It is pertinent to note that the object behind the Act, 2015, is to
establish Commercial Courts and Commercial Divisions &
Commercial Appellate Divisions at the High Courts, for speedy
29
disposal of commercial disputes including cases pertaining to
arbitration. Pursuant to the said object, Sections 10 and 13 were
incorporated in the Act, 2015, in order to restrict the right of appeal
to orders passed under Order XLIII and Section 37 of the Act,
1996.
29. The Hon’ble Supreme Court in Kandla Export Corpn.
(supra), explaining the scope of Section 13 of the Act, 2015, held
that an appeal lies only against orders enumerated in Order XLIII
of the CPC and orders appealable under Section 37 of the Act,
1996. The relevant paragraphs are extracted below:
13. Section 13(1) of the Commercial Courts Act, with
which we are immediately concerned in these appeals, is
in two parts. The main provision is, as has been
correctly submitted by Shri Giri, a provision which
provides for appeals from judgments, orders and decrees
of the Commercial Division of the High Court. To this
main provision, an exception is carved out by the
proviso. The primary purpose of a proviso is to qualify
the generality of the main part by providing an
exception, which has been set out with great felicity
in CIT v. Indo-Mercantile Bank Ltd. [CIT v. Indo-
Mercantile Bank Ltd., 1959 Supp (2) SCR 256 : AIR
30
1959 SC 713] , thus: (SCR pp. 266-67 : AIR pp. 717-18,
paras 9-10)
“9. … The proper function of a proviso is that it
qualifies the generality of the main enactment by
providing an exception and taking out as it were, from
the main enactment, a portion which, but for the proviso
would fall within the main enactment. Ordinarily it is
foreign to the proper function of a proviso to read it as
providing something by way of an addendum or dealing
with a subject which is foreign to the main enactment.
‘8. … it is a fundamental rule of construction that a
proviso must be considered with relation to the principal
matter to which it stands as a proviso.’
Therefore, it is to be construed harmoniously with the
main enactment. (Per Das, C.J. in Abdul Jabar
Butt v. State of J&K [Abdul Jabar Butt v. State of J&K,
1957 SCR 51 : AIR 1957 SC 281 : 1957 Cri LJ 404] ,
SCR p. 59 : AIR p. 284, para 8). Bhagwati, J., in Ram
Narain Sons Ltd. v. CST [Ram Narain Sons Ltd. v. CST,
(1955) 2 SCR 483 : AIR 1955 SC 765] , said: (SCR p.
493 : AIR p. 769, para 10)
’10. It is a cardinal rule of interpretation that a
proviso to a particular provision of a statute only
embraces the field which is covered by the main
provision. It carves out an exception to the main
provision to which it has been enacted as a proviso and
to no other.’
31
10. Lord Macmillan in Madras & Southern Mahratta
Railway Co. Ltd. v. Bezwada Municipality [Madras &
Southern Mahratta Railway Co. Ltd. v. Bezwada
Municipality, 1944 SCC OnLine PC 7 : (1943-44) 71 IA
113] laid down the sphere of a proviso as follows: (IA p.
122 : SCC OnLine PC)
‘… The proper function of a proviso is to except and
deal with a case which would otherwise fall within the
general language of the main enactment, and its effect is
confined to that case. Where, as in the present case, the
language of the main enactment is clear and
unambiguous, a proviso can have no repercussion on the
interpretation of the main enactment, so as to exclude,
from it by implication what clearly falls within its
express terms.’
The territory of a proviso therefore is to carve out an
exception to the main enactment and exclude something
which otherwise would have been within the section. It
has to operate in the same field and if the language of
the main enactment is clear it cannot be used for the
purpose of interpreting the main enactment or to exclude
by implication what the enactment clearly says unless
the words of the proviso are such that that is its
necessary effect. (Vide also Toronto Corpn. v. Attorney-
General of Canada [Toronto Corpn. v. Attorney-
General of Canada, 1946 AC 32 (PC)] , AC p. 37.)”
32
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.
15. Thus, an order which refers parties to arbitration
under Section 8, not being appealable under Section
37(1)(a), would not be appealable under Section 13(1)
of the Commercial Courts Act. Similarly, an appeal
rejecting a plea referred to in sub-sections (2) and (3) of
Section 16 of the Arbitration Act would equally not be
appealable under Section 37(2)(a) and, therefore, under
Section 13(1) of the Commercial Courts Act.
30. In the present case, the impugned order dated 27.06.2025
only decides the issue of maintainability of the execution petition
(EXEP No. 1 of 2018). Likewise, the impugned order dated
10.12.2025 directs provisional attachment of bank accounts of the
Appellant. The said orders are not appealable either under Order
33XLIII of the CPC or under Section 37 of the Act, 1996. Therefore,
the present appeals are not maintainable.
31. Relying on Shah Babulal Khimji (Supra) and D & H
India Ltd. (Supra), it was vehemently contended on behalf of the
Appellant that, notwithstanding the bar under Section 13(2) of the
Act, 2015, the present appeal would be maintainable, as the
impugned orders have trappings of finality. As such, the same can
be termed as “judgments”, which are appealable under Clause 15
of the Letters Patent. According to this Court, the reliance on the
said decisions is misplaced.
32. In Shah Babulal Khimji (Supra), the Hon’ble Supreme
Court held that a Letters Patent Appeal would be maintainable
even against an interlocutory order if it possesses the trappings of
finality. However, the Court in subsequent decisions made it clear
that where a statute expressly or by necessary implication excludes
the right of appeal under the Letters Patent, no such appeal would
be maintainable notwithstanding the nature of the impugned order.
34
33. In Subal Paul v. Malina Paul 11, the Hon’ble Supreme
Court held as follows:
35. In Shah Babulal Khimji case [(1981) 4 SCC 8] the
Apex Court in no uncertain terms referred to the
judgment under the special Act which confers additional
jurisdiction on the High Court even in internal appeals
from an order passed by the trial Judge to a larger
Bench. Letters Patent has the force of law. It is no
longer res integra. Clause 15 of the Letters Patent
confers a right of appeal on a litigant against any
judgment passed under any Act unless the same is
expressly excluded. Clause 15 may be subject to an Act
but when it is not so subject to the special provision the
power and jurisdiction of the High Court under clause
15 to entertain any appeal from a judgment would be
effective.
34. A Constitution Bench of the Hon’ble Supreme Court, in
P.S. Sathappan v. Andhra Bank Ltd. 12, held that Letters Patent
Appeal can be specifically excluded by a subsequent enactment.
The relevant paragraph is extracted below:
30. As such if an appeal is expressly saved by Section
104(1), sub-section (2) cannot apply to such an appeal.
11
(2003) 10 SCC 361
12
(2004) 11 SCC 672
35
Section 104 has to be read as a whole. Merely reading
sub-section (2) by ignoring the saving clause in sub-
section (1) would lead to a conflict between the two sub-
sections. Read as a whole and on well-established
principles of interpretation it is clear that sub-section (2)
can only apply to appeals not saved by sub-section (1) of
Section 104. The finality provided by sub-section (2)
only attaches to orders passed in appeal under Section
104 i.e. those orders against which an appeal under “any
other law for the time being in force” is not permitted.
Section 104(2) would not thus bar a letters patent
appeal. Effect must also be given to legislative intent of
introducing Section 4 CPC and the words “by any law
for the time being in force” in Section 104(1). This was
done to give effect to the Calcutta, Madras and Bombay
views that Section 104 did not bar a Letters Patent. As
appeals under “any other law for the time being in
force” undeniably include a letters patent appeal, such
appeals are now specifically saved. Section 104 must be
read as a whole and harmoniously. If the intention was
to exclude what is specifically saved in sub-section (1),
then there had to be a specific exclusion. A general
exclusion of this nature would not be sufficient. We are
not saying that a general exclusion would never oust a
letters patent appeal. However, when Section 104(1)
specifically saves a letters patent appeal then the only
way such an appeal could be excluded is by express
mention in Section 104(2) that a letters patent appeal is
36
also prohibited. It is for this reason that Section 4 of the
Civil Procedure Code provides as follows:
“4. Savings.–(1) In the absence of any specific
provision to the contrary, nothing in this Code shall be
deemed to limit or otherwise affect any special or local
law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed,
by or under any other law for the time being in force.
(2) In particular and without prejudice to the
generality of the proposition contained in sub-section
(1), nothing in this Code shall be deemed to limit or
otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in
force for the recovery of rent of agricultural land from
the produce of such land.”
As stated hereinabove, a specific exclusion may be clear
from the words of a statute even though no specific
reference is made to Letters Patent. But where there is
an express saving in the statute/section itself, then
general words to the effect that “an appeal would not
lie” or “order will be final” are not sufficient. In such
cases i.e. where there is an express saving, there must be
an express exclusion. Sub-section (2) of Section 104
does not provide for any express exclusion. In this
context reference may be made to Section 100-A. The
present Section 100-A was amended in 2002. The earlier
Section 100-A, introduced in 1976, reads as follows:
37
“100-A. No further appeal in certain cases.–
Notwithstanding anything contained in any Letters
Patent for any High Court or in any other instrument
having the force of law or in any other law for the time
being in force, where any appeal from an appellate
decree or order is heard and decided by a Single Judge
of a High Court, no further appeal shall lie from the
judgment, decision or order of such Single Judge in such
appeal or from any decree passed in such appeal.”
It is thus to be seen that when the legislature wanted
to exclude a letters patent appeal it specifically did
so. The words used in Section 100-A are not by way
of abundant caution. By the Amendment Acts of
1976 and 2002 a specific exclusion is provided as the
legislature knew that in the absence of such words a
letters patent appeal would not be barred. The
legislature was aware that it had incorporated the
saving clause in Section 104(1) and incorporated
Section 4 CPC. Thus now a specific exclusion was
provided. After 2002, Section 100-A reads as follows:
“100-A. No further appeal in certain cases.–
Notwithstanding anything contained in any Letters
Patent for any High Court or in any instrument having
the force of law or in any other law for the time being in
force, where any appeal from an original or appellate
decree or order is heard and decided by a Single Judge
of a High Court, no further appeal shall lie from the
judgment and decree of such Single Judge.”
38
To be noted that here again the legislature has
provided for a specific exclusion. It must be stated
that now by virtue of Section 100-A no letters patent
appeal would be maintainable. However, it is an
admitted position that the law which would prevail
would be the law at the relevant time. At the relevant
time neither Section 100-A nor Section 104(2) barred a
letters patent appeal.
35. The decision in D & H India Ltd. (Supra) also does not
help the Appellant. In the said decision, the Delhi High Court held
that Section 13(1A) of the Act, 2015, shall be read in an expansive
manner. The relevant paragraph relied upon by the Appellant is
extracted below:
“23. On a plain reading, the proviso to Section 13 (1A)
of the Commercial Courts Act is an enabling, rather than
a disabling, provision. There is nothing, in the said
proviso, which would seem to indicate that it dilutes the
effect of sub-section (1A) of Section 13. If we were to
read the said proviso as excluding, from the jurisdiction
of the appellate court, all orders, passed by a
Commercial Court, save and except those which find
specific enumeration in Order XLIII of the CPC, it may
amount to rewriting the proviso to read “Provided
that no appeal shall lie, except from such orders passed
by a Commercial Division or the Commercial Court as
39are specifically enumerated under Order XLIII of
the Code of Civil Procedure, 1908 (5 of 1908) as
amended by this Act and section 37 of the Arbitration
and Conciliation Act, 1996 (26 of 1996).” We are not
convinced that the province of our jurisdiction, in the
present case, allows us to so legislate. To our mind,
therefore, sub-section (1A) of Section 13 of the
Commercial Courts Act allows appeals to be
preferred against all judgements and orders of the
Commercial Division of the High Court, to the
Commercial Appellate Division thereof, and the proviso,
to the said sub-section merely clarifies that, in the case
of orders specifically enumerated in Order XLIII of
the CPC, such appeals shall lie.”
36. The subsequent decisions of the Delhi High Court have
held that the decision in D & H India Ltd. (Supra) does not lay
down the correct law. In H.P. Cotton Textile Mills Ltd. v.
Oriental Insurance Co. Ltd. 13, the Delhi High Court held as
follows:
7. The learned counsel appearing for the appellant
contended that the proviso to Section 13(1-A) of the
Commercial Courts Act does not restrict the main
provision and the same must be read in an expansive13
2023 SCC OnLine Del 511
40manner. He further referred to the decision of a
Coordinate Bench of this Court in D&H India
Ltd. v. Superon Schweisstechnik India Ltd. [D&H India
Ltd. v. Superon Schweisstechnik India Ltd., 2020 SCC
OnLine Del 477] , and drew the attention of this Court
to paras 44 and 45 of the said decision. In particular, she
referred to the following observations:
“44. … We see no reason to exclude orders passed
by the learned Single Judge, exercising commercial
jurisdiction, which have not been passed under any of
the provisions of the CPC, from the expansive sweep of
Section 13(1-A) of the Commercial Courts Act, within
which such orders would undoubtedly stand covered.
45. ∗∗∗
(iii) The proviso to Section 13(1-A) cannot, in our
view, be read as limiting the right to appeal, conferred
by Section 13(1-A). The said proviso merely states that,
from orders passed by the Commercial Division of the
High Court, as are specifically enumerated under Order
43CPC, an appeal would lie under Section 13(1-A). In
our view, the proviso cannot be read as meaning that no
appeal would lie in any other case, especially where the
order under appeal has not been passed under the CPC at
all, but under Rule 5 in Chapter II of the 2018 Original
Side Rules.”
8. The observations, to the effect that Section 13(1-A)
of the Commercial Courts Act has to be read in an
41
expansive manner and the proviso to Section 13(1-A)
cannot be read as limiting the right to appeal
conferred under Section 13(1-A), are contrary to the
decision of the Supreme Court in Kandla Export
Corpn. v. OCI Corpn.[Kandla Export Corpn. v. OCI
Corpn., (2018) 14 SCC 715 : (2018) 4 SCC (Civ) 664]
It also apparent that the said decision of the Supreme
Court was not brought to the notice of this Court
in D&H India Ltd. v. Superon Schweisstechnik India
Ltd. [D&H India Ltd. v. Superon Schweisstechnik
India Ltd., 2020 SCC OnLine Del 477]
37. Likewise, in Ramacivil India Construction (P) Ltd. v.
Union of India 14, the Delhi High Court held as follows:
36. Similar is the opinion expressed in a judgment by
another Coordinate Bench of this Court in Synergies
Casting Ltd. v. National Research Development
Corpn., 2025 SCC OnLine Del 177. Our view is also
supported by another Division Bench judgment of this
Court in Prasar Bharati v. Stracon India Ltd., 2020
SCC OnLine Del 737, which relies upon Kandla
Export (supra). Yet a Division Bench of this Court
in H.P. Cotton Textile Mills Ltd. v. Oriental Insurance
Co. Ltd., (2023) 1 HCC (Del) 506, has expressed the
same view as ours.
14
2025 SCC OnLine Del 9140
42
37. Reference may also be had to a judgment of a
Division Bench of the Bombay High Court in Bank of
India &Anr. v. Maruti Civil Works, 2023 SCC OnLine
Bom 2667, where similar view has been taken.
38. The appellants, in support of their submission
regarding maintainability of these appeals, have
placed heavy reliance on a Division Bench judgment
of this Court dated 05.07.2020 in Delhi Chemical and
Pharmaceutical Works Pvt. Ltd. v. Himgiri Realtors
Pvt. Ltd., EFA (OS) (COMM) NO. 4/2021. However,
when we examine Delhi Chemical and
Pharmaceutical (supra), what we find is that the same
is based on yet another Division Bench judgment of
this Court in D & H India Ltd. v. Superon
Schweisstechnik India Ltd., 2020 SCC OnLine Del
477 : (2020) 268 DLT 15 (DB). Delhi Chemical and
Pharmaceutical (supra) itself has doubted the
correctness of the view taken in D & H India
Ltd. (supra). However, the Division Bench in Delhi
Chemical and Pharmaceutical (supra) did not feel any
need to make a reference to the question to a larger
bench disclosed in the said judgment. Paragraph 25 of
the judgment in Delhi Chemical and
Pharmaceutical (supra) is extracted herein below:–
“25. Though we, with due deference to the members
of the Division Bench in D&H India Ltd. supra,
entertain doubts as to the correctness of the view taken
43in D&H India Ltd. but do not, in the facts of the present
case, feel the need to make a reference of the question to
a larger bench; the reason is, that Bhandari Engineers
& Builders Pvt. Ltd. supra, on which the impugned
orders are based, while laying down the law laid down
therein, also directs all Courts to abide thereby,
resulting in plethora of similar challenges as made
herein and it is deemed expedient to settle the law in that
regard and which would remain pending if the question
of maintainability of the appeal were to be referred to a
larger bench.”
39. The judgment by Bombay High Court in Bank of
India (supra) has taken a note of the said fact and,
after considering D & H India Ltd. (supra), held that
an appeal under Section 13 of the Commercial
Courts Act, 2015 will be maintainable only against
the orders which are enumerated or enlisted in
Order XLIII of the CPC.
38. The Bombay High Court in Skil-Himachal
Infrastructure & Tourism Ltd. v. IL&FS Financial Services
Ltd. 15, has held that only orders which are enumerated under Order
XLIII of the CPC and which are appealable under Section 37 of the
Act, 1996, can be appealed under Section 13 of the Act, 2015. The
Court therein also held that no Letters Patent Appeal would lie
15
2022 SCC OnLine Bom 3152
44
against orders not covered under Section 13 of the Act, 2015. The
relevant paragraphs are extracted below:
52. Our conclusions are:
52.1 An appeal from an order granting conditional leave
to defend in a Summons for Judgment in a Commercial
Summary Suit is not maintainable in view of Section 13
of the Commercial Courts Act.
52.2 No appeal under Clause 15 of the Letters Patent is
maintainable under Section 13 of the Commercial
Courts Act, i.e., in a Commercial Suit.
52.3 Section 13 of the Commercial Courts Act permits
only appeals (i) against decrees; (ii) against orders
specifically enumerated in Order 43 of the Civil
Procedure Code, 1908; and (iii) under Section 37 of the
Arbitration Act.
39. Relying on the common order dated 18.12.2024 in OSA
Nos. 3 and 4 of 2024, the Appellant contended that the said appeals
were filed under Clause 15 of Letters Patent. As the same were
heard and disposed of, the present appeal is also maintainable. The
said contention is also liable to be rejected.
40. The order dated 18.12.2024 in OSA Nos. 3 and 4 of 2024
was passed based on the consent of the counsel appearing therein.
45
Vide the said order, the rights of the parties were not adjudicated.
The issue of maintainability was not raised and not decided in the
said order. It is trite that a judicial order passed with the consent of
the parties does not operate as a binding precedent. In MCD v.
Gurnam Kaur16, the Hon’ble Supreme Court held as follows:
10. It is axiomatic that when a direction or order is
made by consent of the parties, the court does not
adjudicate upon the rights of the parties nor does it
lay down any principle. Quotability as “law” applies to
the principle of a case, its ratio decidendi. The only
thing in a judge’s decision binding as an authority upon a
subsequent judge is the principle upon which the case
was decided. Statements which are not part of the ratio
decidendi are distinguished as obiter dicta and are not
authoritative. The task of finding the principle is fraught
with difficulty because without an investigation into the
facts, as in the present case, it could not be assumed
whether a similar direction must or ought to be made as
a measure of social justice. That being so, the direction
made by this Court in Jamna Das case [ Writ Petitions
Nos. 981-82 of 1984] could not be treated to be a
precedent. The High Court failed to realise that the
direction in Jamna Das case [ Writ Petitions Nos. 981-
82 of 1984] was made not only with the consent of the16
(1989) 1 SCC 101
46parties but there was an interplay of various factors and
the court was moved by compassion to evolve a
situation to mitigate hardship which was acceptable by
all the parties concerned.
41. Further, it is a settled position of law that consent of
parties cannot confer jurisdiction, where none exists under the law.
In this regard, we rely on the decisions in Sushil Kumar Mehta v.
Gobind Ram Bohra 17 and Sarup Singh v. Union of India 18.
42. Therefore, this Court holds that the present Original Side
Appeals are not maintainable.
43. At this stage, it is apposite to advert to I.A. No. 1 of 2026
filed by the Appellant. Vide the said interlocutory application, the
Appellant prayed as follows:
“It is therefore prayed that this Hon’ble Court may be
pleased to convert the present original side appeal into a
writ petition and pass such other order or orders as this
Hon’ble Court may deem fit in the circumstances of the
case.”
44. I.A. No. 1 of 2026 is not maintainable. It is no longer res
integra that a writ petition does not lie against a judicial order
17
(1990) 1 SCC 193
18
(2011) 11 SCC 198
47
passed by the High Court. In Rupa Ashok Hurra v. Ashok
Hurra19, a Constitution Bench of the Supreme Court held that one
Bench of the High Court cannot issue a writ to another Bench of
the High Court. The relevant paragraph is extracted below:
7. Having carefully examined the historical
background and the very nature of writ jurisdiction,
which is a supervisory jurisdiction over inferior
courts/tribunals, in our view, on principle a writ of
certiorari cannot be issued to coordinate courts and a
fortiori to superior courts. Thus, it follows that a
High Court cannot issue a writ to another High
Court, nor can one Bench of a High Court issue a
writ to a different Bench of the same High Court;
much less can writ jurisdiction of a High Court be
invoked to seek issuance of a writ of certiorari to the
Supreme Court. Though, the judgments/orders of High
Courts are liable to be corrected by the Supreme Court
in its appellate jurisdiction under Articles 132, 133 and
134 as well as under Article 136 of the Constitution, the
High Courts are not constituted as inferior courts in our
constitutional scheme. Therefore, the Supreme Court
would not issue a writ under Article 32 to a High Court.
Further, neither a smaller Bench nor a larger Bench of
the Supreme Court can issue a writ under Article 32 of
the Constitution to any other Bench of the Supreme
19
(2002) 4 SCC 388
48
Court. It is pointed out above that Article 32 can be
invoked only for the purpose of enforcing the
fundamental rights conferred in Part III and it is a settled
position in law that no judicial order passed by any
superior court in judicial proceedings can be said to
violate any of the fundamental rights enshrined in Part
III. It may further be noted that the superior courts of
justice do not also fall within the ambit of State or other
authorities under Article 12 of the Constitution.
45. Likewise, in Neelam Manmohan Attavar v.
Manmohan Attavar 20, the Hon’ble Supreme Court held as
follows:
11. Having heard the petitioner who appears in
person and Mr Balaji Srinivasan, learned counsel
appearing on behalf of the Legal Representatives of
the original respondent, we are of the view that a
writ petition under Article 226 of the Constitution
would not be maintainable in order to challenge an
order which has been passed by the High Court in
the exercise of its judicial powers. In the present case,
the High Court has exercised its revisional
jurisdiction. Merely assailing the order as an order
which is void would not enable a litigant to avoid the
consequences which emanate from the order, by
instituting a writ petition under Article 226. A litigant20
(2021) 16 SCC 536
49is not without her remedies. An order which has been
passed by the High Court can either be assailed in a
letters patent appeal (in those cases where the remedy of
a letters patent appeal is available in law) or by way of a
review (where the remedy of a review is available in a
certain class of matters). A remedy is available to a
litigant against a judicial order of the High Court passed
in revisional proceedings, under Article 136 of the
Constitution before this Court.
46. Before concluding, we cannot help but notice the
contradictory stands taken by the Appellant. Before the learned
Single Judge, the Appellant contended that no Commercial
Division could have been constituted by this Court under Section 4
of the Act, 2015. According to the Appellant, under Section 4(1) of
the Act, 2015, only High Courts exercising ordinary original civil
jurisdiction can constitute a Commercial Division. Since this Court
does not exercise such jurisdiction, no Commercial Division could
have been constituted. Therefore, the execution petition (EXEP No.
1 of 2018) was not maintainable. However, in its Counter Affidavit
filed in reply to I.A. No. 4 of 2025, the Appellant does not dispute
the applicability the Act, 2015, insofar as the maintainability of the
present appeals are concerned.
50
47. Notwithstanding the stands taken by the Appellant, we
intend to clarify that a Commercial Division has been constituted
by this Court under Section 4(1) of the Act, 2015. Vide notification
bearing Notification No. 18/SO/2016 and proceeding bearing
R.O.C. No. 850/SO/2015 dated 08.06.2016, a Commercial
Division was constituted in the then High Court of Judicature at
Hyderabad for the State of Telangana and the State of Andhra
Pradesh. The said notification is extracted below:
48. Likewise, vide notification bearing Notification No.
19/SO/2016 dated 08.06.2016, a Commercial Appellate Division
was also constituted. The said notification is extracted below:
51
49. It is pertinent to note that Section 4(1) of the Act, 2015,
was amended in 2018, w.e.f., 03.05.2018. Prior to the amendment,
High Courts exercising “ordinary civil jurisdiction” could have
constituted a Commercial Division. However, after the 2018
amendment, the phrase “ordinary civil jurisdiction” was amended
to “ordinary original civil jurisdiction”. For the sake of
convenience, Section 4(1) of the Commercial Courts Act, 2015, as
it stood prior to the amendment and as it stands after the
amendment, is extracted below:
Before the 2018 Amendment After the 2018 Amendment
4. Constitution of Commercial 4. Constitution of Commercial
Division of High Court.–(1) In Division of High Court.–(1) In
52all High Courts, having all High Courts, having
ordinary civil jurisdiction, the ordinary original civil
Chief Justice of the High Court jurisdiction, the Chief Justice of
may, by order, constitute the High Court may, by order,
Commercial Division having constitute Commercial Division
one or more Benches consisting having one or more Benches
of a single Judge for the purpose consisting of a single Judge for
of exercising the jurisdiction and the purpose of exercising the
powers conferred on it under jurisdiction and powers
this Act. conferred on it under this Act.
(2) The Chief Justice of the (2) The Chief Justice of the
High Court shall nominate such High Court shall nominate such
Judges of the High Court who Judges of the High Court who
have experience in dealing with have experience in dealing with
commercial disputes to be commercial disputes to be
Judges of the Commercial Judges of the Commercial
Division. Division.
50. The Commercial Division of this Court was constituted
prior to the 2018 amendment to the Act, 2015. Further, the
execution petition (EXEP No. 1 of 2018) was filed on 29.03.2018,
i.e., prior to the 2018 amendment of the Act, 2015. Therefore, the
Appellant is precluded from contending that no Commercial
Division could have been constituted by this Court.
51. Notwithstanding the phraseology employed in the
amended Section 4(1) of the Act, 2015, the constitution of a
Commercial Division in High Courts not exercising “ordinary
53
original civil jurisdiction” is imperative to give effect to Section
2(1)(e) of the Act, 1996, and Sections 10(1) of the Act, 2015. For
the sake of convenience, Section 2(1)(e) of the Act, 1996 and
Section 10 of the Act, 2015, are extracted below:
2 (1) (e) “Court” means–
(i) in the case of an arbitration other than international
commercial arbitration, the principal Civil Court of
original jurisdiction in a district, and includes the High
Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same
had been the subject-matter of a suit, but does not
include any Civil Court of a grade inferior to such
principal Civil Court, or any Court of Small Causes;
(ii) in the case of international commercial arbitration,
the High Court in exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same
had been the subject-matter of a suit, and in other cases,
a High Court having jurisdiction to hear appeals
from decrees of courts subordinate to that High
Court
10. Jurisdiction in respect of arbitration matters.–
Where the subject-matter of an arbitration is a
commercial dispute of a Specified Value and–
54
(1) If such arbitration is 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 have been filed in a High Court, shall be heard
and disposed of by the Commercial Division where
such Commercial Division has been constituted in
such High Court.
(2) 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
have been filed on the original side of the High Court,
shall be heard and disposed of by the Commercial
Division where such Commercial Division has been
constituted in such High Court.
(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.
55
52. As is evident from the above provisions, under Section
2(1)(e) of the Act, 1996, the expression “Court”, in relation to
matters pertaining to international commercial arbitrations, is the
jurisdictional High Court. Correspondingly, Section 10(1) of the
Act, 2015 mandates that all applications or appeals pertaining to an
international commercial arbitration shall be heard and disposed of
by the Commercial Division of the High Court. Thus, a conjoint
reading of Section 2(1)(e) of the Act, 1996, and Section 10(1) of
the Act, 2015, indicates that the applications and appeals arising
out of an international commercial arbitration are required to be
heard by the Commercial Division of the High Court.
53. In this regard, gainful reference can be made to the
decision of the High Court of Karnataka in ITI Ltd. v. Alphion
Corpn. 21 and the decision of the High Court of Andhra Pradesh in
Rashtriyalspat Nigam Ltd. v. Air Liquide India Holding (P)
Ltd. 22. Both the decisions hold that a Commercial Division can be
constituted even by those High Courts which do not exercise
“ordinary original civil jurisdiction”.
21
2022 SCC OnLine Kar 1631
22
2024 SCC OnLine AP 4121
56
54. In ITI Ltd. (Supra), the High Court of Karnataka held as
follows:
27. In terms of sub-Clause (1) of Section 10, where a
Commercial Division is constituted in the High
Court, all applications or appeals arising out of
International Commercial Arbitration would have to
be filed in the Commercial Division where such
Commercial Division has been constituted by such
High Court as regards arbitration other than
International Commercial Arbitration.
28. In terms of sub-Clause (2) of Section 10, if
arbitration is other than an International Commercial
Arbitration, all applications or appeals would have to be
filed on the original side of the High Court which shall
be heard and disposed of by the Commercial Division
where such Commercial Division has been constituted in
the High Court.
29. In all other cases, where such arbitration is other
than an International Commercial Arbitration, where
there is no Commercial Division created, all applications
or appeals would lie before any Principal Civil Court of
original Jurisdiction in a district shall be heard and
disposed by the Commercial Court exercising territorial
Jurisdiction over such arbitration where such
commercial Court has been constituted
30. Thus, it is clear that
5730.1 Any challenge to an arbitral award other than an
International Commercial Arbitration, for convenience,
referred to as a Domestic Arbitral Award would have to
be made before the Commercial Court or a Commercial
Division of the High Court if created.
30.2 In respect of International Commercial
Arbitration, the same would have to be filed before a
Commercial Division where it has been constituted.
31. The problem arises on account of Section 10 not
adverting to a situation where a Commercial Division
has not been constituted. As referred to supra, a
Commercial Division is required to be constituted in
all High Courts exercising Ordinary Original Civil
Jurisdiction in terms of Section 4 of C.C. Act.
Neither Section 4 of CC Act nor any other provision
provides for the constitution of a Commercial
Division by High Court not having Ordinary
Original Civil Jurisdiction.
32. It is due to this that confusion has been created in
the State of Karnataka. Since the High Court of
Karnataka does not exercise Ordinary Original Civil
jurisdiction and as such, no Commercial Division has
been established. However, a Commercial Appellate
Jurisdiction has been established in terms of Section
5 of the C.C. Act.
XXXXX
41. Section 10 refers to applications or appeals arising
out of International Commercial Arbitration to be filed
58
before the Commercial Division, which in terms of
Section 4 is a single judge. Unfortunately, in the year
2018, when an amendment was made to Section 4, the
words “Ordinary Civil Jurisdiction” was replaced
with “Ordinary Original Civil Jurisdiction”, which has
resulted in this anomaly.
42. Insofar as the State of Karnataka, the High Court of
Karnataka does not exercise Ordinary Original Civil
Jurisdiction. Section 4 of CC Act, though provides for
the establishment of a Commercial Division in the High
Court exercising Ordinary Original Civil Jurisdiction,
does not bar such establishment in a High Court not
exercising Ordinary Original Civil Jurisdiction. More so
when Section 4 of the CC Act deals with the Challenge
to a Domestic Arbitral Award.
43. Section 10 of CC Act requires an application or an
Appeal as regards an International Commercial
Arbitration to be filed before the Commercial Division.
Section 10 of the CC Act, does not distinguish between
a High Court exercising Ordinary Original Civil
Jurisdiction from a High Court, which does not so
exercise.
44. A meaningful reading when given to the said
provisions would lead to the irresistible conclusion
that even in so far as the High Court not exercising
Ordinary Original Civil Jurisdiction, a Commercial
59
Division is required to be established for purposes of
consideration of applications and appeals arising out
of International Commercial Arbitrations.
45. Such Commercial Divisions would have to be
constituted comprising of Single Judges which would
give meaning and purport to Clause (1) of Section 10
of C.C. Act, thereby any application or appeal in
respect of International Commercial Arbitration
could be filed before the Commercial Division and in
the event of Challenge required to be made to the
orders passed by the Commercial Division, the same
could be filed before the Commercial Appellate
Division constituted under Section 5 of CC Act.
XXXXX
51. Hence, we answer the questions raised as under:
51.1 A challenge to an award passed in an International
Commercial Arbitration can be made before the High
Court of Karnataka in view of Section 2 (e)(ii) of the A
& C Act, 1996.
51.2 In terms of Section 10 (1) if the CC Act, a
challenge to an International Commercial Arbitral
Award would have to be considered by a
Commercial Division established in the High Court
consisting of a Single Judge.
60
55. In Rashtriyalspat Nigam Ltd. (Supra), the High Court
of Andhra Pradesh held as follows:
21. Under this Section, the Commercial Division would
consist of only single judges of that High Court. Further,
a Commercial Division can be constituted only in a High
Court having Ordinary Original Civil Jurisdiction.
Section 10 (2) of the Commercial Courts Act also speaks
of the Commercial Division hearing matters which have
been filed on the original side of that High Court.
Section 4 does not permit constitution of a commercial
division in a High court which does not have Ordinary
Original Civil Jurisdiction. This would lead to one
difficulty. Section 10 (1) of the commercial Courts Act,
requires applications and appeals from international
arbitrations to be filed before the commercial Division
of the High Court. If no such commercial divisions can
be formed, under section 4 of the Commercial Courts
Act, an aggrieved party would have no remedy against
any award or other proceeding, in an international
commercial arbitration. The only way this conundrum
can be resolved is by holding that a commercial
division constituted in a High court, which does not
have Ordinary Original Civil Jurisdiction, can take
up matters relating only to international arbitrations
and not in relation to domestic arbitration.
61
22. The High Court of Andhra Pradesh does not have
Ordinary Original Civil Jurisdiction. However, a
Commercial Division has been constituted, in the High
court of Andhra Pradesh, by a notification dated
08.06.2016, which was published on 10.06.2016. It must
also be noted that, this notification had been issued prior
to the amendment of the Commercial Courts Act in
2018, wherein the words “Ordinary Original civil
Jurisdiction” were added to the Statute. Consequently,
the commercial division created in the High Court of
Andhra Pradesh cannot hear appeals arising out of
Section 37 of the Arbitration Act, in domestic
arbitrations, either on the original side or by the
commercial division constituted in the High Court.
XXXXX
26. The learned Senior Counsel appearing for the
appellant relied upon a Division Bench of the Hon’ble
High Court of Karnataka in ITI Ltd. v. Alphion
Corporation United States of America. This judgment
came to be rendered in a case where an objection was
taken on the maintainability of a commercial appeal
under Section 34 of the Arbitration Act, in an
international commercial dispute, before the commercial
appellate division of the Hon’ble High Court of
Karnataka. The objection raised, in this regard, was that
the application under Section 34 of the Arbitration Act
should have been heard by the commercial division of
62
the Hon’ble High Court of Karnataka and not the
Commercial Appellate Division.
27. The Division Bench of the Hon’ble High Court of
Karnataka, had gone into the question of whether the
High Court of Karnataka which does not exercise
ordinary original civil jurisdiction, can establish a
commercial division and whether, the commercial
appellate division established in terms of Section 5 of
the commercial Courts Act could exercise powers over
such international commercial arbitral awards. This
Judgment is in accordance with the interpretation placed
by this court on the provisions of the Arbitration Act and
the Commercial Courts Act.
28. The question of the pecuniary jurisdiction of the
District courts, under the Andhra Pradesh Civil Courts
Act, would not be relevant. The Jurisdiction of the
Commercial Courts is created under the Commercial
Courts Act and not under the Civil Courts Act. The
District Judge rank officer is not sitting as a District
Court, in a commercial dispute falling within the ambit
of the Commercial Courts Act. He would be sitting as a
Commercial Court, whose pecuniary jurisdiction is fixed
under the Commercial Courts Act. We are also of the
opinion that the reply of the respondent, set out in
paragraph 11 of this order, is an answer to the
contentions of the Appellant, set out in paragraph 10 of
this order.
63
29. The principles that can be adduced, from the above
consideration are:
A. A High Court which does not have ordinary Original
Civil jurisdiction, cannot, ordinarily, constitute a
Commercial Division, under Section 4 of the
Commercial Courts Act.
B. However, a High Court, which does not have
Ordinary Original Civil jurisdiction, can constitute a
commercial Division for the purposes of hearing
matters only in relation to International arbitrations,
as set out in Section 10 (1) of the Commercial Courts
Act.
………..
56. Therefore, in relation to international commercial
arbitrations, we hold that a Commercial Division can be
established even by those High Courts which do not exercise
“ordinary original civil jurisdiction”.
57. In the light of the aforesaid discussion, we hold as
follows:
i. OSA No. 2 of 2025 is dismissed as not maintainable.
ii. OSA No. 1 of 2026 is also dismissed as not maintainable.
iii. There is no order as to costs.
64
Consequently, pending miscellaneous petitions, if any, in
these appeals, shall stand closed.
_____________________
K. LAKSHMAN, J____________________________
B.R. MADHUSUDHAN RAO, JDate:03.08.2026.
Note: L.R.Copy to be marked.
b/o. vvr.
