The Managing Director, Bihar State Food And Civil Supplies Corporation Ltd. & Anr. vs Umesh Prasad Yadav

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 28-08-2026

The present commercial appeal arises out of an order dated 21.07.2026 passed by learned Principal District Judge-cum-Commercial Court, Patna (hereinafter referred to as ‘the Commercial Court’) in Execution Case No. 176 of 2025, whereby and whereunder the learned Commercial Court has been pleased to direct for attachment of the immovable and movable properties of the award debtors-appellants for purpose of enforcement of the arbitral award dated 02.10.2024 passed by a learned sole Arbitrator in Arbitration Case No. 03 of 2023.

At the outset, this Court would record that in course of hearing of the appeal, a question arose as to whether an appeal in terms of proviso to Section 13(1A) of the Commercial Courts Act, 2015 (hereinafter referred to as ‘the Act of 2015’) would lie before this Court in its commercial appellate jurisdiction against an order of attachment passed by the learned Commercial Court in exercise of its power to enforcement of award as contained under Section 36 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’).

On 12.08.2026, this Court took note of the issue and appointed Mr. Apurv Yash, a learned Advocate of this Court, as Amicus Curiae to assist this Court in this matter.

For a better appreciation of the issue of maintainability of the appeal, this Court deems it appropriate to reproduce the impugned order hereunder for a ready reference:-

It appears from the records that the respondent was engaged in transportation of foodgrains from CMR Godown to TPDS Godown, Raniganj. A dispute arose between the parties, the contract was terminated and an adverse order was passed against the transporter. Two FIRs were also lodged against the transporter. A certificate case, being Certificate Case No. 1 of 2016-17, was lodged by the Bihar State Food and Civil Supplies Corporation (hereinafter called ‘the Corporation’). The Corporation obtained certificate in equal proportion worth Rs. 3,53,65,414.14/- from the Certificate Officer of Araria. The Managing Director of the Corporation, though held the respondent entitled to payment of his bills quantified at Rs. 1,95,82,244.72/- but ordered adjustment of Rs. 4,11,96,997.50/-which was the value of the goods quantified on account of short supplies in the Raniganj TPDS Godown.

On the request of the respondent in Request Case No. 90 of 2022 filed under Section 11 of the Act of 1996, the Hon’ble Chief Justice appointed the learned sole Arbitrator and referred the dispute to the Arbitrator. Upon reference, Arbitration Case No. 03 of 2023 was registered by the learned Arbitral Tribunal. In ultimate analysis, the learned sole Arbitrator passed an award for a total sum of Rs. 6,09,37,971.88 (rounded off Rs. 6,09,37,972/-). The arbitral award dated 02.10.2024 directed the Corporation-respondents before the learned Arbitrator to pay the said amount within a period of 30 days from the date of the award, failing which the claimant shall be entitled to get interest as mandated under the provisions of the Act of 1996 (as amended up to date) on the entire award amount.

The Corporation-appellant has challenged the award by filing an application under Section 34 of the Act of 1996 before the learned Commercial Court. With the said application, the Corporation has filed a stay petition.

The claimant-respondent filed an application under Section 36 of the Act of 1996 for enforcement of the award, which has been registered as Execution Case No. 176 of 2025. It is stated that on 21.07.2026, the Arbitration Case No. 94 of 2024 and Execution Case No. 176 of 2025 were listed side by side before the learned Commercial Court, Patna.

It is contended on behalf of the appellants that the appellants had prayed before the learned Commercial Court to consider the stay petition dated 30.10.2024 in Arbitration Case No. 94 of 2024, but it remained pending. On the same day, the learned Commercial Court passed the impugned order by which the office of the appellants along with all movable and immovable assets have been directed to be attached.

This Court has called for the records of the Execution Case No. 176 of 2025 and perused the same. On perusal of the records, it appears that on 20.05.2026, a submission was made on behalf of the award holder-respondents herein that the award debtors had entered appearance, but despite several directions of the court, they had neither filed reply-cum-objection till date nor had discharged the ‘Award amount’ along with the accrued interest towards satisfaction of the award under execution. It was also pointed out to the learned Commercial Court that in Civil Appeal No. 3640-3642 of 2025 (arising out of SLP (C) No. 8490-8492 of 2020), the Hon’ble Supreme Court has directed that all pending execution cases shall be adjudicated and disposed of within a period of six months without exception. Since the award debtors were not complying with the orders of the court, a prayer was made for issuance of an order of attachment of the properties belonging to the award debtors, namely (a) Office of the Bihar State Food and Civil Supplies Corporation Limited with all immovable and movable assets situated at R-Block, Khadya Bhawan, P.O. - GPO, Daroga Prasad Rai Path, Road No. 2, District and Town Patna - 800001, Bihar and (b) Office of Bihar State Food and Civil Supplies Corporation Limited with all immovable and movable assets situated at Om Nagar, Ward No. 8, P.S. - Town, District Araria – 854311.

On perusal of the order dated 20.05.2026, it appears that on the said date, the learned court directed to issue notice of attachment through Najarat to the award-debtors, requiring the award-debtors to furnish an explanation as to why the property referred to above should not be ordered to be attached. It is evident that on 20.05.2026, when the notice of attachment was issued, both the parties were in attendance. Thereafter, the execution case was adjourned on 01.06.2026, 18.06.2026, 30.06.2026 and 10.07.2026. On 30.06.2026, the award-debtors were directed to file reply-cum-objection, if any, and deposit the awarded amount with accrued interest. Again, on 10.07.2026, time was given to the award-debtors to file reply-cum-objection, if any.

In the aforementioned background, the impugned order dated 21.07.2026 has been passed by the learned Commercial Court. It is evident on a bare reading of the impugned order that despite service of notice of attachment on the award-debtors, they had neither filed any reply-cum-objection nor deposited the arbitral dues. These facts have been taken note of to appreciate the entire matter and the circumstances under which the impugned order has been passed.

Since the question of maintainability of appeal is to be decided at this stage, learned Senior counsel for the appellant submits that from a bare reading of Section 13(1A) of the Act of 2015, it would appear that this provision does not place any limitation in the matter of filing of an appeal by any person aggrieved by the judgment or order of the Commercial Court at the level of District Judge exercising original civil jurisdiction. It is submitted that proviso to sub-section (1A) of Section 13 is couched by way of an enabling provision and it cannot be subjected to a restricted meaning.

Learned Senior counsel has heavily relied upon the Hon’ble Division Bench judgment of Delhi High Court in the case of Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Another vs. Himgiri Realtors Pvt. Ltd. and Another reported in 2021 SCC OnLine Del 3603. It is submitted that in this case, the Hon’ble Delhi High Court has relied upon a coordinate Bench judgment of its own High Court in the case of D & H India Ltd. vs. Superon Schweisstechnik India Ltd. reported in 2020 SCC OnLine Del 477. Learned Senior counsel submits that in paragraph ‘42’ of the judgment in case of Delhi Chemical and Pharmaceutical Works Pvt. Ltd. (supra), the Hon’ble High Court has held that Rule 46H and 103 of Order XXI of the CPC provide for adjudication of the disputes specified therein to be having the force of a decree and which would then be appealable as a judgment within the meaning of Section 13 of the Commercial Courts Act, in accordance with HPL (India) Ltd. Similarly, it is not as if Order XLIII of the CPC, to orders specified wherein the right of appeal against orders is confined by the proviso after Section 13(1A), does not cater to any orders in the course of an execution. In this judgment it has been held that Order XLIII Rule 1(j) and (ja) provide for appeals against orders passed in the course of an execution proceeding. The Division Bench held that an order under Order XXI Rule 41 is not covered therein but in view of the dicta of the Court in D & H India Ltd., the appeal against such an order would also be maintainable. It is, thus, submitted that this appeal be held maintainable.

Mr. Apurv Yash, learned Amicus Curiae has ably assisted this Court. It is submitted that since Delhi Chemical and Pharmaceutical Works Pvt. Ltd. (supra) has relied upon D & H India Ltd. (supra), it would be important to take a glace over D & H India Ltd. at first instance. Learned Amicus Curiae submits that in paragraph ‘49’ of its judgment in the case of D & H India Ltd. (supra), the Hon’ble Delhi High Court has summarised the reasons. On reading sub-paragraph (iii) and (iv) of paragraph ‘49’ it would appear that the case before the Hon’ble Delhi Court was filed against an order passed by the Joint Registrar in the original side of the High Court in exercise of his power under Rule 5 in Chapter II of the 2018 Original Side Rules.

Learned Amicus Curiae submits that earlier, in two judgments namely HPL (India) Ltd. vs. QRG Enterprises reported in 2017 SCC OnLine Del 6955 and Samsung Leasing Ltd. vs. Samsung Electronics Co. Ltd. reported in 2017 SCC OnLine Del 9374, the two Division Benches of the Hon’ble Delhi High Court had held in categorical words that the provisions of the Commercial Courts Act were required to be read in conjunction with the CPC and that, as the right to appeal under Section 104 of the CPC was limited to orders enumerated under Order XLIII thereof, an order which, though passed under the CPC, if not amongst the orders enumerated in Order XLIII, would not amenable to appeal under Section 104 of the CPC and, consequently, would equally not amenable to appeal under the proviso to Section 13(1A) of the Commercial Courts Act. In Samsung Leasing Ltd. (supra) also dealing with an intra-Court appeal, preferred against an order of the learned Single Judge, allowing an application for amendment, under Order VI Rule 17 of the CPC, in a commercial dispute, the learned Division Bench held that, as orders passed on applications for amendment, under Order VI Rule 17 of the CPC, were not amongst the orders enumerated in Order XLIII thereof, no intra-Court appeal would lie, in view of the proviso to Section 13(1A) of the Commercial Courts Act, as interpreted in HPL India Ltd. (supra).

Learned Amicus Curiae submits that in fact D & H India Limited (supra) distinguished HPL India Ltd. (supra) and Samsung Leasing Ltd. (supra) by saying that the impugned order in D & H India Limited (supra) was relatable to Rule 5 in Chapter II of the 2018 Original Side Rules and not from an order passed under Order VI Rule 17 of the CPC. In D & H India Limited (supra) it has been clearly held by the court that “we are not concerned with such a challenge.”

Learned Amicus Curiae has placed before this Court the judgment of the Hon’ble Supreme Court in the case of Kandla Export Corporation and Another vs. OCI Corporation and Another reported in (2018) 14 SCC 715 (paragraph ‘14’) and judgment of the Hon’ble Division Bench of the Delhi High Court in the case of H.P. Cotton Textile Mills Limited vs. Oriental Insurance Company Limited reported in (2023) 1 HCC (Del) 506: 2023 SCC OnLine Del 511. It is submitted that in H.P. Cotton Textile Mills Limited (supra), the Hon’ble Delhi High Court has relied upon Kandla Export Corporation (supra), considered D & H India Limited (supra) and ultimately held in clear words that the provisions of Section 13(2) of the Commercial Courts Act read with Section 13(1-A) of the Commercial Courts Act, which restricts the appeals to only those orders as specified in Order XLIII of CPC, shall override the provisions of Section 10 of the Delhi High Court Act, 1966 and the rules made thereunder.

It is submitted that in H.P. Cotton Textile Mills Limited (supra), in paragraph ‘8’, the Hon’ble Delhi High Court has taken note of the fact that the decision in Kandla Export Corporation (supra) was not brought to the notice of the Court in D & H India Limited (supra). There is yet another judgment of Hon’ble Delhi High Court in the case of Arrena Overseas (P) Ltd. vs. Batra Art Press reported in 2023 SCC OnLine Del 6479 wherein an identical issue as to maintainability of commercial appeal had fallen for consideration. In the said case, the Commercial Court had rejected an application under Order XII Rule 6 of the CPC. The Hon’ble Delhi High Court relied upon the judgment of the Hon’ble Supreme Court in the case of Kandla Export Corporation (supra) and took a view that sub-section (2) of Section 13 of the Commercial Courts Act contains a non obstante clause and expressly provides that, notwithstanding any law for the time being in force, or the Letters Patent of the High Court, no appeal would lie from any order or decree of the Commercial Division or Commercial Court otherwise in accordance with the provisions of the Commercial Courts Act. Referring to Section 21 of the Act of 2015, the Hon’ble Division Bench held that it contains a non obstante provision and expressly provides that save as otherwise provided, the provisions of the Commercial Courts Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

We have heard learned Senior Counsel for the appellants and learned Amicus Curiae.

The present appeal has been preferred under Section 13(1A) of the Act of 2015. The issue is that of the maintainability of the appeal, therefore, it would be appropriate to extract Section 13(1A) of the Act of 2015 hereunder for a ready reference:-

Before we proceed to consider Section 13(1A) with its proviso, it would be important to take note of some relevant provisions of the Act of 2015 hereunder:-

The words “Specified Value” have been defined under clause (i) of sub-section (1) of Section 2-in relation to a commercial dispute, shall mean the value of the subject-matter in respect of a suit as determined in accordance with section 12 (which shall not be less than three lakh rupees) or such higher value, as may be notified by the Central Government.

Determination of Specified Value is to be done as per the provision contained in Section ‘12’ of the Act of 2015. Section ‘12A’ talks of pre-litigation mediation and settlement. Then comes Section 13 sub-section(1), (1A) and (2) under Chapter IV of the Act of 2015;

Section 21 of the Act of 2015 reads as under:-

In the case of Kandla Export Corporation (supra), the Hon’ble Supreme Court has considered Section 13(1) and its proviso under the Act of 2015 as existing at the relevant time. Sub-section (1) of Section 13 was later on substituted with effect from 03.05.2018 (vide amendment act no. 28 of 2018) Judgment in case of Kandla Export Corporation (supra) came on February 7, 2018, therefore, we would reproduce sub-section (1) of Section 13 and the proviso prior to its substitution:-

The Hon’ble Supreme Court has held in paragraph ‘13’, ‘14’ and ‘15’ of its judgment in the case of Kandla Export Corporation (supra) as under:-

Sub-section (1) of Section 13 of the Act of 2015 came to be substituted by Act 28 of 2018 with effect from 03.05.2018. We reproduce the substituted provision of Section 13(1) hereunder:-

In H.P. Cotton Textile Mills Limited (supra), a Division Bench of the Hon’ble Delhi High Court was considering an intra-court appeal impugning an order dated 31.08.2018 passed by a learned Single Judge, disposing of the appellant’s petition for enforcement of an arbitral award dated 19.10.2026. Admittedly, the said order was passed under Section 36 of the Act of 1996. The Hon’ble Delhi High Court has observed in paragraph ‘6’ of its judgment that:-

Here, this Court would like to point out with all humility and respect as it’s command that, in fact, in Kandla Export Corporation (supra), the Hon’ble Supreme Court has explained the scope of the appeal under Section 13(1) and not that of Section 13(1-A) of the Act of 2015, because at the time of decision in Kandla Export Corporation (supra), Section 13(1-A) was not in existence.

Be that as it may, it is evident from paragraphs ‘13’, ‘14’, and ‘15’ of the judgment in case of Kandla Export Corporation (supra) that the Hon’ble Supreme Court has, on the strength of several previous judgments of the Court, came to the conclusion that the orders that are not specifically enumerated under Order XLIII CPC would, 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. We reproduce Section 37 of the Act of 1996 hereunder:-

Taking note of the aforementioned provision, the Hon’ble Supreme Court held that:-

This Court finds that before the Hon’ble Division Bench of the Delhi High Court in case of H.P. Cotton Textile Mills Limited (supra), a specific plea was taken on behalf of the appellant 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 expansive manner. The judgment of the Delhi High Court in the case of D & H India Ltd. (supra) was referred to and the attention of the Court was drawn towards paragraph ‘44’ and ‘45’ of the said decision. We reproduce paragraph ‘7’ and ‘8’ of the judgment in case of H.P. Cotton Textile Mills Limited (supra) hereunder:

This Court has already noticed hereinabove that in D & H India Limited (supra), the Hon’ble Division Bench of Delhi High Court took note of its judgment in HPL India Ltd. (supra) and Samsung Leasing Ltd. (supra) which were adjudicated on the maintainability of an appeal under Section 13 of the Act of 2015, but distinguished those judgments by observing that those appeals were against an order passed by the learned Single Judge in exercise of commercial jurisdiction under one or the other provision of the CPC. Sub-paragraphs ‘(iii)’ and ‘(iv)’ of paragraph ‘49’ in case of D & H India Limited (supra) are as under:-

Since the judgment of the Hon’ble Delhi High Court in the case of Delhi Chemical and Pharmaceutical Works Pvt. Limited (supra) is based on the judgment in the case of D & H India Ltd. (supra), we are of the view that the present discussions are taking care of both the judgments.

One thing which has been noticed by this Court is that Kandla Export Corporation (supra) was decided in February 2018, whereafter sub-section (1) of Section 13 stood substituted and in place of sub-section (1) alone, a new sub-section (1-A) was also inserted but the proviso to sub-section (1) of Section 13 as it stood prior to substitution of sub-section (1), remained intact. Earlier, under sub-section (1), any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court would have preferred an appeal to the Commercial Appellate Division of that High Court within a period of 60 days from the date of the judgment or order. Under the substituted sub-section (1), any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of 60 days from the date of judgment.

It is important to note that vide Amendment Act 28 of 2018 with effect from 03.05.2018, the Legislatures inserted the definitions of the words “Commercial Appellate Courts” and “Commercial Appellate Division” under clause (a) and (aa) of sub-section (1) of Section 2. Under sub-section (1A) of Section 13, any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of 60 days from the date of judgment or order. Thus, the substituted provisions were brought in order to give clarity to the earlier sub-section (1) of Section 13 of the Act of 2015. The proviso remained intact, therefore, the judgment of the Hon’ble Supreme Court in the case of Kandla Export Corporation (supra) on the interpretation of the proviso to sub-section (1) of Section 13 of the Act of 2015 would continue to govern the field.

In view of the authoritative judicial pronouncements of the Hon’ble Supreme Court in the case of Kandla Export Corporation (supra), which has been followed by the Hon’ ble Delhi High Court in case of H.P. Cotton Textile Mills Limited (supra), this Court is of the considered opinion that only those orders which are enumerated under Order XLIII of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015 and Section 37 of the Arbitration and Conciliation Act, 1996 would be appealable under Section 13(1A) of the Act of 2015.

In the present case, the impugned order by which the learned Commercial Court has directed for attachment of movable and immovable assets of the award debtor is not one of the orders envisaged under proviso to sub-section (1A) of Section 13 of the Act of 2015. Therefore, this Court concludes that the present appeal is not maintainable.

This judgment would, however, not come in the way of the appellants in seeking their remedy, if any, available to them in accordance with law.

Mr. Apurv Yash, learned Advocate has very ably assisted this Court. The Patna High Court Legal Services Committee shall pay a sum of Rs. 25,000/- (twenty five thousand) to the learned Amicus Curiae within two weeks from today.

The appeal is held not maintainable and is disposed of accordingly.