Supreme Court – Daily Orders
Sanjay Dattatreya Kakade vs Vistra Itcl (India) Ltd. (Formerly … on 24 February, 2026
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ITEM NO.2 COURT NO.7 SECTION IX-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 29597/2025
[Arising out of impugned final judgment and order dated 22-02-2018
in JO No. 74/2017 passed by the High Court of Judicature at Bombay]
SANJAY DATTATREYA KAKADE & ANR. Petitioner(s)
VERSUS
VISTRA ITCL (INDIA) LTD. (FORMERLY KNOWN AS IL AND FS TRUST COMPANY
LIMITED) & ORS.Respondent(s)
FOR ADMISSION and I.R.
IA No. 166854/2025 - CONDONATION OF DELAY IN FILING
IA No. 166843/2025 - CONDONATION OF DELAY IN REFILING / CURING THE
DEFECTS
IA No. 166851/2025 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 172322/2025 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES
IA No. 166859/2025 – PERMISSION TO PLACE ON RECORD SUBSEQUENT FACTS
WITH
Diary No(s). 14111/2025 (IX-A)
IA No. 106352/2025 – CONDONATION OF DELAY IN REFILING / CURING THE
DEFECTS
IA No. 106354/2025 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
Date : 24-02-2026 These matters were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE J.B. PARDIWALA
HON’BLE MR. JUSTICE K.V. VISWANATHANFor Petitioner(s) :
Mr. Mukul Rohatgi, Sr. Adv.
Mr. C. A. Sundaram, Sr. Adv.
Mr. Shivaji M. Jadhav, Adv.
Signature Not Verified
Mr. Shivaji M. Jadhav, AOR
Mr. Mahesh Bhoite, Adv.
Digitally signed by
HARPREET KAUR
Date: 2026.02.28
16:14:26 IST
Reason: Mr. Vignesh Singh, Adv.
Mr. Brij Kishor Sah, Adv.
Ms. Apurva, Adv.
Mr. Aditya S. Jadhav, Adv.
Mr. Amit Kumar Gupta, Adv.
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For Respondent(s) :
M/S. D.s.k. Legal, AOR
Mr. Shyam Divan, Sr. Adv.
Mr. Nakul Dewan, Sr. Adv.
Mr. Jatin Pore, Adv.
Ms. Gargi Patil, Adv.
Mr. Vishal Mandal, Adv.
Mr. Chandra Prakash, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Delay condoned.
2. Since the issues raised in both the captioned petitions are
the same and the parties are also the same, those were taken
up for hearing analogously and are being disposed of by this
common order.
3. This is a long-drawn litigation between the parties and it is
high time we give a quietus to the same.
4. It all started with a share subscription and shareholders
agreement dated 30.01.2007, executed by Kakade Construction
Company Private Limited, for short, KCCPL, i.e., the
respondent no.3 before us and its promoters, Ms. Usha Kakade
i.e., petitioner no.2 and Mr. Sanjay Kakade, petitioner no.1
respectively before us with Vistra ITCL (India) Ltd., formerly
known as “IL and FS Trust Company Limited”, a company
incorporated under the Companies Act, 1956, i.e., the
respondent no.1 before us.
5. The respondent nos.1 and 2, respectively were the investors
who were looking to invest in the capital of the respondent
no.3 company for the project referred to above.
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6. In accordance with the agreement, the respondent nos.1 and 2,
respectively agreed to invest an amount of Rs.75 crore in
tranches in the respondent no.3 company by subscribing to
(i) Equity shares; and (ii) Class A Redeemable Optionally
Convertible Cumulative Preference shares of the respondent
company.
7. It appears from the materials on record that both the parties
executed supplementary agreement dated 05.02.2007 to further the
understanding reached in the earlier agreement dated 30.01.2007
referred to above.
8. Sometime in 2011, disputes arose between the parties. In such
circumstances, an Arbitral Tribunal had to be constituted.
9. On 14.07.2014, the Arbitral Tribunal passed its award in terms
of the consent terms signed by the parties before us.
10. It is not in dispute that respondent nos.1 and 2 respectively
agreed to accept a reduced amount of Rs.178 crore with interest
from the respondent no.3 company in lieu of their claim.
11. In view of such understanding, the respondent no.3 company
also agreed to drop the arbitration proceedings against the
petitioners and respondent no.4 before us.
12. Sometime in 2017, the respondent nos.1 and 2, respectively
preferred a Commercial Execution Application (L) bearing no.31/2017
before the High Court of Judicature at Bombay under Section 36 of
the Arbitration and Conciliation Act, 1996, for short, “the Act,
1996” to enforce the consent award dated 14.07.2014 referred to
above.
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13. The execution proceedings were instituted for the purpose of
recovery of an amount of Rs.276.63 crore from the respondent no.3.
14. In the said proceedings, a learned Single Judge of the High
Court passed an order dated 22.02.2018. This order came to be
passed in Judge’s order no.74/2017 filed in the Commercial
Execution Application (L) No.31/2017.
15. The order passed by the learned Single Judge referred to above
dated 22.02.2018 is a subject matter of challenge in the SLP (C)
Diary No.29597/2025.
16. The petitioners being dissatisfied with the order passed by
the learned Single Judge referred to above, went in appeal before
the Division Bench of the High Court on its Ordinary Original
Jurisdiction side. Three appeals, i.e., Commercial Appeal
No.542/2019, Commercial Appeal No.29/2020 and Commercial Appeal
No.22/2023, respectively were preferred by the petitioners before
us.
17. When the appeals referred to above were taken up for hearing
by the Division Bench of the High Court, a preliminary objection
came to be raised by the respondent no.1 herein as regards its
maintainability.
18. The objection as regards the maintainability of the appeals
was raised on the premise that the proceedings for enforcement of
the Arbitral Award cannot be said to be proceedings under the Civil
Procedure Code or under the Commercial Courts Act but those could
be said to be under the Arbitration Act.
19. It was argued before the Division Bench that the issue as
regards maintainability of the appeals should be determined by
5reference to the provisions of the Arbitration Act, more
particularly, Section 37 of the same and not by any of the
provisions of the Civil Procedure Code or the Commercial Courts
Act.
20. It appears on plain reading of the impugned order passed by
the Division Bench of the High Court that the Court decided to
answer the issue of maintainability and it took the view that the
appeals preferred under Sections 13 or 13(1A) of the Commercial
Courts Act were not maintainable.
21. The Appeal Court while holding the appeals to be not
maintainable, observed as under:-
“SECTION 13(1A) CCA ARGUMENT
74. The arguments based upon the interpretation of the
provisions of Section 13 or 13 (1A) of the CCA or Order
XLIII of the CPC fade into irrelevancy once it is clear
that the maintainability of these appeals has to be
adjudged by following the drill of Section 37 of the ACA.
The provisions of the ACA determine the issue of
appealability in such matters. The provisions of the CCA,
or the CPC, can be examined only to determine the forum
of appeal. The latter two enactments do not decide the
substantive maintainability of the appeal. Thus, if the
appeal is not maintainable under the ACA, then there is
no question of referring to the forum provided by the CCA
or the CPC and then holding that the appeals are
nevertheless maintainable.
75. Similarly, the decisions in D & H India Ltd. (supra),
Hubtown Limited (supra) and Sigmarq Technologies Pvt.
Ltd. and others (supra) would not apply given the legal
position that the issue of maintainability of these
appeals must be determined by reference to the provisions
of ACA and not the CCA or the CPC. In any event, another
Coordinate Bench of this Court, in the case of Shailendra
Bhadauria and others (supra), has expressly held that
“the earlier view in Hubtown Limited (supra) and Sigmarq
Technologies (supra) will have to give way and all the
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more after the judgments of the Hon’ble Supreme Court
delivered in the case of Fuerst Day Lawson Limited v.
Jindal Exports Limited and the authoritative and binding
pronouncement in the case of Kandla Export Corporation
(supra). The statute has to confer a right of appeal.
That has to be conferred in clear words. We cannot, as
suggested by Mr Andhyarujina, by an interpretative
process carve out a right of appeal, when the law is not
creating it.”
76. Thus, the Coordinate Bench, in Shailendra Bhadauria
and others (supra) upheld that the preliminary objection
regarding maintainability of appeals against an order
made by the learned Single Judge by this Court in an
application for execution/enforcement of an arbitral
award, inter alia on the ground that such an appeal was
not maintainable under Section 37 of the ACA, and
therefore, by tortious interpretation of the provisions
of the CCA or the CPC, right of appeal against such
orders could not be carved out by the Court.
77. In Bank of India v. M/s Maruti Civil Works33, another
coordinate Bench of this Court distinguished D & H India
Ltd. (supra) and referred to a later decision of the
Delhi High Court in Delhi Chemical and Pharmaceutical
Works Pvt. Ltd. v. Himgiri Realtors Pvt Ltd.34 which had
doubted the correctness of the view taken in D & H India
Ltd. (supra). The Court held that an appeal under Section
13(1A) of the CCA would lie only against the judgment and
orders enumerated or enlisted under Order XLIII of the
CPC.
78. For all the above reasons, we hold that these appeals
cannot be held to be maintainable by reference to
sections 13 or 13(1A) of the CCA read with the provisions
in Order XVIII of the CPC.”
22. We also take notice of the fact that since the High Court took
the view that the appeals were not maintainable in law, more
particularly, under Sections 13 or 13(1A) respectively of the
Commercial Courts Act, a fervent appeal was made by the learned
senior counsel appearing for the petitioners before the High Court
that the petitioners may be permitted or rather be granted liberty
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to approach the very same Court, i.e., the Court that passed the
order dated 22.02.2018 with a request to modify/revise its order on
the ground that the compromised terms agreed upon and duly signed
by the petitioners were contrary to law.
23. The aforesaid request made by the learned senior counsel also
came to be declined by the High Court, observing in para 80 as
under:-
“80. Since we have held that the proceedings for
enforcement of the arbitral award before the learned
Single Judge were not proceedings under Order XXI or any
other provisions of CPC, there is no question of granting
the liberty as prayed for. Banwari Lal (supra) and Vipan
Aggarwal and another (supra) are cases concerning
proceedings under the CPC. In the context of such
proceedings, the two decisions hold that parties
aggrieved by a compromise decree had a right to avail
either the remedy of appeal in terms of Order XLIII Rule
1A of CPC or to file an application before the Court
which made the compromise decree given the proviso along
with Explanation to Rule 3 of Order XXIII of CPC. These
decisions do not even remotely deal with proceedings for
the enforcement of arbitral awards, and the consent
orders compromise orders made in such proceedings.
Therefore, the liberty to move the Court which made the
order dated 22 February 2018, i.e., the learned Single
Judge of this Court, cannot be granted as prayed for.”
24. Ultimately, the appeals preferred by the petitioners came to
be dismissed with costs, having regard to the dubious conduct of
the petitioners over a period of time. We quote paras 82 and 83,
respectively of the impugned order, which read thus:-
“82. Thus, the appellants are determined not to pay the
first and second Respondents under the consent award
dated 14 July 2014 and the consent order dated 22
February 2018. Considerable judicial time has been spent
8dealing with almost identical arguments on the issue of
maintainability in Commercial Appeal (L) No.109 of 2019
and connected matters and the present appeals. This is at
the cost of several non-commercial matters, which cry for
scarce judicial time and commercial matters, which must
be expedited given the legislative intent of both the
Commercial Courts Act and the Arbitration Act. Even
though all the arguing counsel presented arguments with
clinical precision and admirable restraint, considerable
judicial time of the Single Judge and two Division
Benches was consumed. For all this, the appellants must
pay costs not only to the first and second Respondents
but also to the Maharashtra State Legal Services
Authority, which provides legal aid to those who cannot
afford the luxury of engaging advocates to prosecute
their causes.
83. Accordingly, we dismiss these appeals as not
maintainable. The appellants are directed to pay
consolidated costs of Rs.20,00,000/-, out of which Rs
10,00,000/- to be shared by the first and second
Respondents, and the balance Rs 10,00,000/- by the
Maharashtra State Legal Services Authority. These costs
must be paid within four weeks from today, and proof of
payment must be filed in the Registry.”
25. In such circumstances referred to above, the petitioners are
here before us with the two captioned Special Leave Petitions.
26. As noted aforesaid, in so far as the SLP (C) Diary
No.29597/2025 is concerned, the order is of the year 2018. It has
been preferred with a delay of 2557 days. Mr. Shyam Divan, the
learned counsel appearing for the respondent no.1 would submit that
the SLP (C) Diary No.29597/2025 deserves to be dismissed only on
the ground of delay. It would not make any difference whether we
dismiss it on delay or otherwise because we are concerned with the
order passed by the Division Bench of the High Court which has been
impugned in the SLP (C) Diary No.29597/2025.
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27. We heard Mr. C.A. Sundaram and Mr. Mukul Rohatgi, the learned
senior counsel appearing for the petitioners and Mr. Shyam Divan
and Mr. Nakul Dewan, the learned senior counsel appearing for the
respondent no.1.
28. Both the learned senior counsel appearing for the petitioners
would vehemently submit that the High Court committed an egregious
error in taking the view that the appeals were not maintainable
under the provisions of the Commercial Courts Act. They would
submit that after the consent arbitral award was passed, the matter
travelled to the stage of execution of the said award. Before the
Executing Court, the terms of the original consent arbitral award
came to be modified and an order came to be passed.
29. It was argued that this order passed by the Executing Court
cannot be said to be an award and could be said to have been passed
under the provisions of the Civil Procedure Code and, therefore,
the appeals under the provisions of the Commercial Courts Act could
be said to be maintainable in law.
30. In the aforesaid context, reliance was placed on the
provisions of Order 43 Rule 1A, more particularly, sub-rule 2 of
Rule 1A. Order 43 Rule 1A reads thus:-
“1A. Right to challenge non-appealable orders in
appeal against decrees.—(1) Where any order is made under
this Code against a party and thereupon any judgment is
pronounced against such party and a decree is drawn up,
such party may, in an appeal against the decree, contend
that such order should not have been made and the
judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit
after recording a compromise or refusing to record a
10compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should, or
should not, have been recorded.”
31. It was strenuously argued before us that it was just
impossible for the petitioners to comply with the consent terms,
more particularly, when those could be said to be in violation of
the FEMA regulations. Those, consent terms could be said to be
violative or rather in contravention of Sections 23 and 24 of the
Contract Act respectively being opposed to public policy.
32. In the last, it was argued that assuming for the moment that
the appeals could be said to be not maintainable in law, the High
Court ought to have permitted the petitioners to approach the very
same Court for the purpose of seeking appropriate relief, applying
the principles analogous to order 23 Rule 3 of the Civil Procedure
Code, more particularly, the proviso to Rule 3.
33. On the other hand, the learned senior counsel appearing for
the respondent no.1 would submit that both the petitions deserve to
be dismissed outright, having regard to the dubious conduct of the
petitioners over a period of time.
34. It was argued that the High Court committed no error, much
less an error of law in taking the view that the appeals are not
maintainable.
35. It was argued that if an appeal against the order passed by
the Executing Court is not maintainable under Section 37 of the
Arbitration Act, then those appeals cannot be said to be
maintainable under the provisions of the Commercial Courts Act.
36. Both the learned senior counsel tried their best to convince
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us to take the view that the order passed by the Executing Court
could be said or could be termed as an Arbitral Award and if that
be so, then the appeals cannot be said to be maintainable.
37. We were taken through various other documents, more
particularly, the orders passed by this Court over a period of
time, reflecting on the issues which are now by and large
concluded.
38. In the last, both the learned senior counsel submitted that
having regard to the dubious conduct of the petitioners, this Court
may not interfere with the impugned orders in exercise of
jurisdiction under Article 136 of the Constitution of India.
39. Having heard the learned senior counsel appearing for the
parties and having gone through the materials on record, we are of
the view that we should not return any findings on the questions of
law in the present litigation.
40. We keep all the legal issues open to be agitated or looked
into in any other appropriate proceedings.
41. We decline to interfere with the impugned orders taking the
view that this is not a case where we should exercise our
jurisdiction under Article 136 of the Constitution of India, more
particularly, keeping in mind the gross facts of this case.
42. We are taking this view, more particularly, keeping in mind
the undertaking given by the petitioners before the High Court
dated 22.02.2018 which reads thus:-
“CONSENT TERMS IN EXECUTION
1. The Respondents hereby confirm the Consent Award
dated July 14, 2014 (“Consent Award”)and do hereby
withdraw all challenges to
12the same, including the challenges raised in Chamber
Summons (CD) (L) No.160 of 2018 in JO No. 74 of 2017 and
Chamber Summons (CD) (L) No.161 cf 2018 in JO No, 74 of
2017.
2. The Respondents, by themselves and on behalf of
board of Respondent No.3, further undertake not to
challenge the Consent Award dated July 14, 2014 and
present Order, on any ground whatsoever including the
grounds in the Affidavit in Reply dated July 31, 2017
filed In the present execution proceedings and the
Chamber Summons (CD) (L) Nos. 160 and 161 of 2018 in JO
No. 74 of 2017.
3. Respondent Nos. 1 and 2, for themselves and on
behalf of
Respondent No.3, jointly and severally undertake to make
payment
under the Consent Award subject to what is set out
hereunder. The
pending Arbitral proceedings, other than the Application
under Section 27 (5) of the Arbitration and Conciliation
Act, 1996, between the Applicants and Responder1t Nos.
I& 2 shall come to an end on these terms and the present
Order shall be executable as a decree against Respondent
Nos. 1 and 2, also.
4. The Court Receiver, High Court Bombay is appointed
as Court
Receiver in respect of 18. 90 Acres of land described at
Schedule 1 hereto and in respect of 10.18 Acres of land
described at Schedule 2 hereto as per letter dated
February 21, 2018 addressed by the Advocate for the
Respondents to the Advocates for the Applicants before
the Hon’ble Court, with all powers under Order 40 Rule 1
under the Code of Civil Procedure, 1908. The Court
Receiver shall forthwith proceed to take possession of
the said properties and shall thereafter proceed to sell
the same for recovery of amounts under the Consent Award
in case of any default in making payment of amounts
mentioned hereunder, without any further orders from
this Hon’ble Court.
5. The Respondents undertake to pay amounts in the
following manner:
i) An amount of Rs.5,00,00,000/- (Rupees Five Crores
only) on or by March 21, 2018;
ii) An amount of Rs.55,00,00,000/- (Rupees Fifty Five
Crores only) on or by June 21, 2018;
iii) An amount of Rs.100,00,00,000/- (Rupees One Hundred
Crores only) on or by November 21, 2018; and
iv) An amount of Rs.100,00,00,000/- (Rupees One
Hundred Crores only) on or by February 21, 2019.
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6. In case all the amounts mentioned hereinabove are
paid on or before their respective due dates, the
Consent Award shall be marked as fully satisfied and the
pending proceedings under Section 27 (5) before the
Arbitral Tribunal/Court shall stand withdrawn.
7. In case there is any default in making payment of
any amount
under these terms, the concessions shall stand revoked
and the
Respondents, jointly and severally, will be liable· to
pay the entire balance amount under the Consent Award.
8. The Respondents further undertake as under:
i) Not to, directly and/or indirectly, obstruct either
the Court
Receiver from taking possession or selling the
properties in the
aforesaid terms;
ii) Not to, directly and/or indirectly, obstruct the
execution of the Consent Award in case of any default;
iii) In case of any default, to obtain from India bulls
Housing Finance Limited NOC for sale of 2.71 Hectares/
27,150 sq. mtrs of land purportedly mortgaged to it and
for cancelling the Mortgage Deed dated April 24, 2017;
and
iv) Not to ask for any further extensions of time.
9. The Respondent Nos.1 to 3 shall, within a period of 2
(two) weeks, disclose on Affidavit details of all their
assets.
10. It is also made clear that in case of default, the
Applicants shall be entitled to execute the Consent
Award against any .of the assets of the Respondents.
11. Pending payment of the amounts mentioned herein, or
sale by the
Court Receiver, the Interim order elated July 6, 2013
and Consent Award passed by the Hon’ble Arbitral
Tribunal, and the orders dated July 5, 2017 and January
19, 2018 of the Hon’ble Bombay High Court shall
continue.
12. Respondents shall be entitled to approach this
Hon’ble Court for mortgage/ sale of aforesaid
properties, in respect of which Court Receiver is
appointed, for making payment of the Decretal claim/
aforesaid amount and for no other purpose.
Dated this 22nd day of February, 2018
Respondent No.1
Mr. Sanjay Dattatreya Kakade
Respondent No.2
Mrs. Usha Sanjay Kakade
Respondent No.3
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Authorised Signatory
Kakade Construction Company Private Limited
For Applicants Nos. 1 and 2
Authorised Signatory”
43. The consent terms also records that in the event of any
default in making payment of any amount under the terms, the
concessions would stand revoked and the petitioners and the
respondent no.3 herein jointly and severally would be liable to pay
the entire balance amount under the consent award.
44. Before closing this matter, we once again enquired with the
learned senior counsel appearing for the petitioners whether their
clients are ready and willing to pay the principal amount, i.e.,
Rs.178 crore. We were informed that it is not possible for the
petitioners to pay this amount, however, both the learned senior
counsel made a request that let the receiver, who has taken over
all the assets of the company put the assets to auction/sale,
recover the amount and pay the same to the respondent nos.1 and 2,
respectively.
45. We do not say anything in the aforesaid regard. It is for the
receiver now to proceed further, in accordance with law.
46. With the aforesaid, both the Special Leave Petitions are
dismissed.
47. Pending application(s), if any, shall stand disposed of.
(HARPREET KAUR) (POOJA SHARMA) COURT MASTER (SH) COURT MASTER (NSH)