SUMMARY OF ARGUMENTS

It is humbly submitted before the Hon’ble High Court that the Execution Court is correct in
rejecting the objections raised by the petitioner under section 47 of CPC. Firstly these
objections cannot be raised under section 47 of CPC. Section 47 of CPC, which provides for
determination of question by the executing court in relation to the validity of the decree, does
not apply to execution of arbitral awards. The arbitrator was correct in proceeding with the
arbitral proceedings which is permissible under section 25(c) of the Arbitration and
Conciliation Act, 1996. Also, the Execution court is correct in implementing the orders issued
by the Supreme Court.

ARGUMENTS ADVANCED
4.1. THE OBJECTIONS FILED UNDER SECTION 37 OF CPC WERE RIGHTLY
REJECTED BY THE EXECUTION COURT.

It is humbly submitted by the counsel that the Execution court is right in rejecting the
objections raised by the petitioner. In M/s Bellary Nirmithi Kendra v. M/s Capital Metal
Industries1 case it was held that that Section 47 of CPC, which provides for determination of
question by the executing court in relation to the validity of the decree, does not apply to
execution of arbitral awards.

It was further held that an arbitral award can only be challenged on the grounds mentioned
under Section 34 of the Arbitration & Conciliation Act, 1996 (A & C Act) and not otherwise.
It held that the award is deemed to be a decree for the purpose of the enforcement, however,
this deeming fiction is limited to its enforcement only.

In the case of Bharat Pumps and Compressors V. Chopra Fabricators (2022),2 the Supreme
Court held that an arbitration award is not included under the definition and meaning of
decree in CPC and so no questions can be raised in the execution of such an award.

In the case of State of Tripura, Rep.by Secy., Dept. of PWD, Govt. of Tripura & anr., v. Ashes
Deb3 has held as follows: In the scheme of the Arbitration Act, a challenge against an arbitral
award can be made by taking recourse to Section 34 of the Arbitration Act and that too on the
1
M/s Bellary Nirmithi Kendra v. M/s Capital Metal Industries, C.R.P. No.100067 OF 2022
2
2 Bharat Pumps and Compressors V. Chopra Fabricators, CR No. - 53 of 2022
3
State of Tripura, Rep.by Secy., Dept. of PWD, Govt. of Tripura & anr., v. Ashes Deb. Arb.A./4/2023
grounds set out under Sub-Section (2-A) of section 34 of the Act. It has surfaced from the
record that the present petitioner against whom the arbitral awards were made did not prefer
any application under Section 34 of the Act. After the time prescribed for filing such
application expired, the respondent award holder approached the Court by filing a petition
under Section 36 for enforcement of the arbitral award. Only then, the petitioner-State against
whom the arbitral awards were passed raised objection under Section 47, CPC. Section 5 of
the Arbitration Act clearly provides that "Notwithstanding anything contained in any other
law for the time being in force, in matters governed by this Part, no judicial authority shall
intervene except where so provided in this Part", which implies that the only remedy
available to the aggrieved party against whom an arbitral award is passed, is Section 34 of the
Arbitration Act. Obviously, the petitioner-State did not avail such remedy to resist the
execution within the time prescribed under the law. Petitioner raised objection to resist the
execution only by filing an application under Section 47, CPC despite the specific remedy
available under Section 34 of Arbitration Act. In view of the prohibition imposed under
Section 5 of the Act, objection except under Section 34 of the Act is not entertainable."

There is a material breach of contract on part of the VSPL and the contract can be terminated
for this. In the case of the case of China Cotton Exporters v Beharilal Ramcharan Cotton
Mills Ltd,4 it was held that in commercial contracts time is ordinarily of the essence of the
contract. This is so because the business world requires certainity.5 If time of performance is
of the essence of the contract, any delay will render the contract voildable at the option of the
other party and the affected party can sue for breach.6

4.2 VSPL'S VOLUNTARY ABSENCE FROM ARBITRATION PROCEEDINGS

RENDERS CHALLENGE TO AWARD UNATTAINABLE

It is humbly submitted before the Honourable High Court that the petitioner (VSPL) has
intentionally not participated in the arbitration proceedings and now they cannot challenge
the proceedings at this stage. VSPL has malafidely filed objections under Section 47 of the
Code of Civil Procedure

In Ravinder Kaur v Ashok Kumar and another,7 it was held that courts of law should be
careful enough to see through such diabolical plans of the judgment-debtors to deny the

4
China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd, AIR 1961 SC 1295.
5
Hitkari Motors v Attar Singh, AIR 1962 J&K 10.
6
Kamal Rani v Chand Ram, AIR 1980 Del 188.
7
Ravinder Kaur v Ashok Kumar and another AIR 2004 SC 904.
decree-holders the fruits of the decree obtained by them under section 47 and Or.21 R.58(1)
(b). These type of errors on the part of the judicial forums only encourage frivolous and
cantankerous litigations causing law's delay and bringing bad name to the judicial system.

Where a party did not appear on the adjourned date in spite of a note by the arbitrator in the
minutes of the hearing that if the party doesn’t appear on the appointed date and time, the
hearing would proceed Nagasirinivasulu vs. GLADA Finance Ltd.8 A party who, though
repeatedly written to, doesn’t appear before the arbitrator and allows the proceedings to
continue without any objection and they cannot later on say that they was not given the
opportunity of being heard.

In the present case notice was given to the Petitioners that the Arbitral Tribunal would meet
on a specific day. The petitioner not only chose not to appear but did not even send a
communication to show reasons for his non appearance. The arbitrator has adjourned the
matter. This is more so in the light of the fact that the draft award was available which fact
was known to the Petitioner. It was held that if a party fails to appear at an oral hearing or to
produce documentary evidence, the arbitral tribunal may continue the proceedings and make
an arbitral award on the evidence before it. In fact the arbitral tribunal in this case can be said
to have proceeded under section 25(c).

Section 25(c) in The Arbitration And Conciliation Act, 1996

a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral
tribunal may continue the proceedings and make the arbitral award on the evidence before it. 9

4.3. THE EXECUTION COURT HAS NOT MISINTERPRETED THE

ORDER OF THE SUPREME COURT.

It is humbly submitted before the honourable High Court that the execution court has not
misinterpreted the order of the supreme court. The main objective of arbitration is speedy
resolution of disputes.

There is a famous adage that "the difficulties of a litigant in India begin when he has obtained
a decree." This statement of the Privy Council, capturing the agony of the decree holders, still
holds true even after almost 150 years. Getting a favourable decree from the court is just half

8
Nagasirinivasulu vs. GALADA Finance Ltd, 2008 SCC ONLINE MAD 831.
9
Section 25(c) of Arbitration and Concilation Act, 1996.
the battle won, the real struggle begins when the decree holder approaches the executing
court.10

Even in 2021, a three- judge bench of the Supreme Court, in Rahul S. Shah Vs. Jinendra
Kumar Gandhi,11 issued a direction that Executing Courts must dispose of the Execution
Proceedings within six months from the date of filing, which may be extended only by
recording reasons in writing for such delay.

In 2021, there were a total of 14,19,298 reported execution petitions pending in the lower
courts. The figures for high courts of original jurisdictions are no less alarming. As on date,
32,397 execution petitions are pending before the Delhi High Court and 11,229 petitions are
pending before the Bombay High Court.12 In 2022, in the matter of Delhi Airport Metro
Express Private Limited vs Delhi Metro Rail Corporation Ltd.,13 the Supreme Court
categorically observed that India cannot aspire to be an international arbitration hub if there is
no enforcement of arbitration awards. This was in relation to a 2017 award granting INR
7200 crores in the favour of Delhi Metro Rail Corporation.

In 2016, the Supreme Court, while passing the judgment in Satyawati vs. Rajinder Singh and
Another,14 expressed its disappointment by remarking that "It is really agonizing to learn that
the Appellant-Decree Holder is unable to enjoy the fruits of her success even today i.e. in
2013 though the Appellant - Plaintiff had finally succeeded in January 1996".

10
General Manager of the Raj Durbhunga vs. Coomar Ramaput Singh (1871 – 72) 14 MIA 605.
11
Rahul S. Shah Vs. Jinendra Kumar Gandhi, WRIT PETITION NO. 19698/2021.
12
Arbitral Awards, ADR, Arbitration and Conciliation Act, Zeus Law Associates, Code of Civil Procedure
(livelaw.in).
13
Delhi Airport Metro Express Private Limited vs Delhi Metro Rail Corporation Ltd O.M.P. (I) (COMM)--
200/2017.
14
Satyawati vs. Rajinder Singh and Another, 2013 AIR SCW 3952.