# Shri Colonizers And Developers Pvt. Ltd. & Anr v. Abha Gupta

- **Citation:** (2025) 12 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-16
- **Case number:** Special Appeal No. 394 of 2025
- **Bench:** Rajan Roy, Rajeev Bharti
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-colonizers-and-developers-pvt-ltd-anr-v-abha-gupta-52815
- **Pages:** 11

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
note that the Hon'ble Supreme Court in the
case of Sumita Singh versus Kumar
Sanjay and another; reported in AIR
2002 SC 396, has held as under:

"3. It is the husband's suit against
the wife. It is the wife's convenience that,
therefore,
must
be
looked
at.
The
circumstances
indicated
above
are
sufficient to make the transfer petition
absolute."

25. The conduct of the applicant to
prefer the Family Court at Gonda for
instituting the proceeding and thereafter to
make request for transfer of the subsequent
proceeding emanating from the same to the
Family Court at Lucknow, is reflective of
his ulterior motive to cause delay in the
proceeding.

26. In view of the facts and the
discussion made hereinabove, this Court
does not find any good ground to accept the
prayer made by the Applicants for transfer
of the proceedings of Misc. Case No.52 of
2019 (Smt. Sarla Sharma versus Nagendra
Sharma) pending before the learned Family
Court at Gonda to any competent Court at
District Lucknow.

27.
Resultantly,
the
present
Application filed by the applicants under
Section 24 of C.P.C. is hereby dismissed.

28. No order as to cost.
----------
(2025) 12 ILRA 164
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAJEEV BHARTI, J.
Special Appeal No. 394 of 2025

Shri Colonizers And Developers Pvt. Ltd. &
Anr. ...Appellants
Versus
Abha Gupta ...Respondent

Issue for Consideration
(1) Maintainability of Special Appeal against the
Judgment and order passed by Single Judge
while functioning as Commercial Division under
the Commercial Courts Act, 2015.
(2) Appropriate Court/forum for execution of an
award passed in the context of an international
commercial arbitration.

Headnotes
(A) Practice and procedure - Special
Appeal - Impugned Judgment and order
was
passed
by
Single
Judge
while
functioning as Commercial Division under
the Commercial Courts Act, 2015 - Special
Appeal
was
filed
against
it
-
Maintainability. (E-1)
Held : As the learned Single Judge in this case
has passed the order impugned in exercise of
his original jurisdiction under the Act, 2015 read
with the Act, 1996 and not under an appellate
or revisional or supervisory jurisdiction, nor
under Article 226 or 227 of Constitution of India,
therefore, the said exclusion clause not being
applicable,
this
appeal
is
found
to
be
maintainable. [Para 6]
(B)
Arbitration
law
-
Award
-
Enforceability - Nature of award, not
being a foreign award, but a domestic
award
albeit
in
an
international
commercial arbitration - The facts about
the arbitration, being an international
commercial arbitration and its seat was
within
India
are
not
in
dispute
-
Commercial Courts established at the
district level or Commercial Division of the
High Court, which has jurisdiction to
execute this kind of award. (E-1)
Held : So far as domestic award in a domestic
arbitration is concerned, it is executed through
the commercial courts at the district level. As
regards, foreign awards rendered in the context
of international commercial arbitration also
there is no dispute that in view of the
explanation to section 47, such awards are
12 All. Shri Colonizers And Developers Pvt. Ltd. & Anr. Vs. Abha Gupta
165
executable/enforceable through the High Court
as referred in the said explanation - In either
eventuality, where it is the Act 1996 or the Act
2015, it is the High Court which is the 'Court' for
filing an application under Section 36 of the
Arbitration and Conciliation Act, 1996 for
enforcement of a domestic award pertaining to
an international commercial arbitration. [Para 15
and 44]

Case Law Cited
Sundaram Finance Limited vs. Abdul Samad and
another, AIR 2018 SC 965; Paramjeet Singh
Patheja vs. ICDS Ltc., (2006) 13 SCC 322; ITI
Limited vs. Alphion Corporation, United States of
America and Another, 2022 SCC OnLine Kar
1631
(Karnataka
High
Court);
M/s.
OCI
Corporation vs. Kandla Export Corporation & 2;
2016 SCC OnLine Guj 5981 (Gujarat High
Court); Lucknow Agencies Lko vs. U.P. Avas
Vikas Parishad; AIR OnLine 2019 All 3138; Civil
Misc. Arbitration Application No. 100 of 2023;
M/s Deep Distributors Pvt. Ltd. Thru Director
Ashok Kumar Jaiswal vs. Tigers Brewery
Industries Pvt. Ltd. Thru M.D. Ishwari Khadka
decided on 20.03.2024; Bharat Aluminium
Coompany vs. Kaiser Aluminium Technical
Services Inc., (2012) 9 SCC 552 (BALCO Case);
PASL Wind Solutions Private Limited vs GE
Power Conversion India Private Limited, (2021)
7 SCC 1 - referred to.

List of Acts
Arbitration
and
Conciliation
Act,
1996
(hereinafter referred as the 'Act 1996 - Ss.
2(1)(e)(ii), 3, 36, 47 (Explanation); Commercial
Courts Act, 2015 - S. 10; Allahabad High Court
Rules, 1952 - Chapter VIII, Rules 5; Code of
Civil Procedure, 1908 - Order XXI

List of Keywords
Execution
case;
Award;
Foreign
award;
Domestic
award;
International
commercial
arbitration;
Jurisdiction;
Decree
of
Court;
Arbitral proceeding; District Commercial Courts;
Commercial
Division
of
the
High
Court;
Domestic arbitration; Seat of arbitration in
India; Domestic arbitration; Party-centric; Placecentric; Original civil jurisdiction; Procedural law

Case Arising From
Judgment and order dated 09.10.2025 of the
learned Single Judge functioning as Commercial
Division under the Commercial Courts Act, 2015
passed in Execution Case No. 1 of 2025

Appearances for Parties
Advs. for the Appellant : Pritish Kumar,
learned Senior Advocate, Rajeev Sharan, Amal
Rastogi, Devesh Bahadur Singh
Advs. for the Respondents :
Utkarsh
Srivastava, Pankaj Kumar Singh, Anurag Tyagi

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Pritish Kumar, learned
Senior Advocate assisted by Shri Rajeev
Sharan, Advocate, Shri Amal Rastogi
Advocate, Shri Devesh Bahadur Singh,
Advocate, Shri Utkarsh Srivastava, Advocate
for appellants and Shri Pankaj Kumar Singh,
Advocate along with Shri Anurag Tyagi,
learned counsel for respondents.

2. Counsel for parties have argued the
matter finally at the stage of admission itself,
therefore, we proceed to dispose of the appeal.

3. By means of this appeal filed under
Chapter-VIII Rule 5 of the Allahabad High
Court Rules, 1952 (hereinafter referred as
'Rules of the Court') judgment and order of
the learned Single Judge of this Court
functioning as Commercial Division under
the
Commercial
Courts
Act,
2015
(hereinafter referred as the 'Act 2015') dated
09.10.2025 passed in Execution Case No.1 of
2025 has been challenged.

4. The Parties counsel are ad idem that
against such an order no further remedy is
prescribed either under the Arbitration and
Conciliation Act, 1996 (hereinafter referred
as the 'Act 1996') or the Act 2015, therefore,
this Special Appeal has been filed.

5. We have gone through Chapter VIII
Rule 5 of the Rules of the Court which
reads as under:-
166 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. Special appeal.-An appeal
shall lie to the Court from a judgment (not
being a judgment passed in the exercise of
appellate jurisdiction) in respect of a
decree or order made by a Court subject to
the superintendence of the Court and not
being an order made in the exercise of
revisional jurisdiction or in the exercise of
its power of superintendence or in the
exercise of criminal jurisdiction [or in the
exercise of the jurisdiction conferred by
Article
226
or
Article
227 of
the
Constitution in respect of any judgment,
order or award - (a) of a tribunal, Court or
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act, with
respect to any of the matters enumerated in
the State List or the Concurrent List in the
Seventh Schedule to the Constitution, or (b)
of the Government or any officer or
authority, made or purported to be made in
the exercise or purported exercise of
appellate or revisional jurisdiction under
any such Act of one Judge."

6. An appeal under the said provision
shall lie to the Court from a judgment of
one Judge subject to the exclusionary
clause contained therein. We have gone
through the exclusionary clause and as the
learned Single Judge in this case has passed
the order impugned in exercise of his
original jurisdiction under the Act 2015
read with the Act 1996 and not under an
appellate or revisional or supervisory
jurisdiction, nor under Article 226 or 227
of Constitution of India, therefore, the said
exclusion clause not being applicable, this
appeal is found to be maintainable.

7. At the very outset, it needs to be
mentioned that the appellant herein does not
dispute the fact that the award in question is
not a foreign award, but is a domestic award
albeit in an international commercial arbitration.
The fact that the arbitration in question is also
an international commercial arbitration is not in
dispute. It is also not in dispute that the seat of
arbitration was within India.

8. Now, the question before us is as to
whether such an award is to be enforced
through the Commercial Courts established at
the district level or the Commercial Division
of the High Court.

9. In this context, we may refer to section
36 of the Act 1996 which contains the
substantive law. It reads as under:-

"36. Enforcement--(1) Where the
time for making an application to set aside the
arbitral award under section 34 has expired,
then, subject to the provisions of sub-section
(2), such award shall be enforced in
accordance with the provisions of the Code of
Civil Procedure, 1908 (5 of 1908), in the same
manner as if it were a decree of the court.

(2) Where an application to set
aside the arbitral award has been filed in the
Court under section 34, the filing of such an
application shall not by itself render that
award unenforceable, unless the Court grants
an order of stay of the operation of the said
arbitral award in accordance with the
provisions of sub-section (3), on a separate
application made for that purpose.

(3) Upon filing of an application
under sub-section (2) for stay of the operation
of the arbitral award, the Court may, subject
to such conditions as it may deem fit, grant
stay of the operation of such award for
reasons to be recorded in writing:

Provided that the Court shall,
while considering the application for grant
12 All. Shri Colonizers And Developers Pvt. Ltd. & Anr. Vs. Abha Gupta
167
of stay in the case of an arbitral award for
payment of money, have due regard to the
provisions for grant of stay of a money
decree under the provisions of the Code of
Civil Procedure, 1908 (5 of 1908).

Provided further that where the
Court is satisfied that a prima facie case is
made out that,--

(a) the arbitration agreement or
contract which is the basis of the award; or

(b) the making of the award,

was induced or effected by fraud
or corruption, it shall stay the award
unconditionally pending disposal of the
challenge under section 34 to the award.

Explanation.--For the removal of
doubts, it is hereby clarified that the above
proviso shall apply to all court cases
arising out of or in relation to arbitral
proceedings, irrespective of whether the
arbitral
or
court
proceedings
were
commenced
prior
to
or
after
the
commencement of the Arbitration and
Conciliation (Amendment) Act, 2015."

10. Section 36 does not specifically
provide
the
Forum
or
Court
for
execution of an award including an
award passed in the context of an
international
commercial
arbitration.
What it says is that it shall be enforced
in accordance with provisions of the the
Code of Civil Procedure, 1908, in the
same manner as if it were a decree of
Court. An award is not a decree of Court
but it is to be executed and enforced as a
decree
of
Court.
The
provisions
pertaining to execution of a decree of
Court are contained in Section 36 read
with order XXI C.P.C.

11. The parties are also not in dispute
nor was it canvassed before us to the
contrary that an award whether it be a
domestic award or a foreign award is to be
executed through the Court. The question is
if it is a domestic award pertaining to an
international commercial arbitration, which
Court?

12. Learned counsel for the appellant
laid great emphasis upon the provisions of
Section 10 of the Act 2015 as also the
explanation to Section 47 of the Act of
1996 to impress upon the Court that it is the
District Commercial Court which would
have jurisdiction to consider an application
under Section 36 for enforcement of a
domestic award even if rendered in an
international commercial arbitration. His
contention was; firstly, that in view of the
language used in Section 36, as the award
is to be executed as a decree of the court in
terms of the Code of Civil Procedure and
such execution is done before the District
Court, therefore, in this case, application
should have been filed before the District
Commercial
Court.
Secondly,
his
submission was that Legislature in its
wisdom consciously amended Section 47
by the Act No. 3 of 2016 to make it clear
that
such
international
commercial
arbitration where the award is a foreign
award would be enforced or executed
before the High court. It being so, the
logical inference from that is that other
awards
pertaining
to
international
commercial
arbitration
would
be
enforceable/executable
by
the
District
Commercial Courts, otherwise why would
the Legislature make such an amendment
in Section 47.

13. It was also his contention that
arbitral
proceedings
terminated
on
rendering of the award in view of Section
168 INDIAN LAW REPORTS ALLAHABAD SERIES
32 of the Act of 1996, therefore, for
execution of the said award as it is deemed
to be a decree, proceedings have to be
initiated before the District Commercial
Court. He relied upon the decision reported
in AIR 2018 SC 965; Sundaram Finance
Limited vs. Abdul Samad and another. He
also referred to Section 10 of the Act 2015
to contend that there is distinction between
an international commercial arbitration
which is place-centric and one which is
party-centric.
According
to
him,
an
international commercial arbitration where
the award is place-centric, the execution
would be under Section 47 before the High
court, but, one which is party-centric, the
execution will be before the District
Commercial court.

14. On the other hand, learned counsel
for the respondents submitted that the
provisions contained in Section 36 read
with Section 2(1)(e)(ii) of the Act 1996 are
explicit and leave no doubt that the Court
which is to enforce/execute the award even
if a domestic award, but in the context of
international commercial arbitration, has to
be the High Court irrespective of the fact
that it has original civil jurisdiction or not.
There is no such provision in the entire Act
1996 which bestows jurisdiction upon the
district commercial court to entertain an
application for enforcement/execution of
such an award. He, in this context, invited
our attention to several decisions such as
Paramjeet Singh Patheja vs. ICDS Ltc.;
(2006) 13 SCC 322 and Sundaran
Finance Limited vs. Abdul Samad and
another; AIR 2018 SC 965. In addition to the
decisions of Hon'ble the Supreme Court
referred hereinabove, he also relied upon the
decisions of the Division Bench of the
Karnataka High Court (ITI Limited vs.
Alphion Corporation, United States of
America and Another; 2022 SCC OnLine
Kar 1631), Gujarat High Court (M/s. OCI
Corporation vs. Kandla Export Corporation
& 2; 2016 SCC OnLine Guj 5981) and a
Single Judge Bench decision of this High
Court (Lucknow Agencies Lko vs. U.P. Avas
Vikas Parishad; AIR OnLine 2019 All 3138
and judgment dated 20.03.2024 passed in
Civil Misc. Arbitration Application No. 100
of 2023; M/s Deep Distributors Pvt. Ltd.
Thru Director Ashok Kumar Jaiswal vs.
Tigers Brewery Industries Pvt. Ltd. Thru
M.D. Ishwari Khadka) wherein, according to
him, this very aspect was dealt with
extensively especially in the Division Bench
decision of the Karnataka High Court and it
was expressly held that an application for
execution/enforcement of an award under
Section 36 of Act 1996 pertaining to
international commercial arbitration would
lie only before the Commercial division of
the High court. He also impressed upon us
the provisions of Section 10(1) which has
been considered in the said decisions.

15. It is not in dispute that so far as
domestic award in a domestic arbitration is
concerned, it is executed through the
commercial courts at the district level. As
regards, foreign awards rendered in the
context
of
international
commercial
arbitration also there is no dispute that in
view of the explanation to section 47, such
awards are executable/enforceable through
the High Court as referred in the said
explanation.

16. The question here is, what if, though
the arbitration is an international commercial
arbitration, but the seat of arbitration is in
India and the award is a domestic arbitration?
Which Court shall execute it?

17. In this regard, the law is clear that
the definition of international commercial
arbitration as available in Section 2(1)(f)
12 All. Shri Colonizers And Developers Pvt. Ltd. & Anr. Vs. Abha Gupta
169
would apply in such a case. We may in this
regard refer to the Constitution Bench decision
of Bharat Aluminium Coompany vs. Kaiser
Aluminium Technical Services Inc.; (2012) 9
SCC 552 (BALCO Case) and the Three Judge
bench of Hon'ble the Supreme Court in Case
of PASL Wind Solutions Private Limited vs
GE Power Conversion India Private Limited;
(2021) 7 SCC 1.

18. Section 2(1)(f) act of the 1996
reads as under:-

"(f) "international commercial
arbitration" means an arbitration relating
to
disputes
arising
out
of
legal
relationships, whether contractual or not,
considered as commercial under the law in
force in India and where at least one of the
parties is-

(i) an individual who is a national
of, or habitually resident in, any country
other than India; or

(ii) a body corporate which is
incorporated in any country other than
India; or

(iii) an association or a body of
individuals whose central management and
control is exercised in any country other
than India; or

(iv) the Government of a foreign
country."

19. As already stated, it is not in
dispute that the arbitration at hand is an
international commercial arbitration within
the meaning of Section 2(1)(f) of the Act
1996.

20. In view of the decision referred
above,
International
Commercial
Arbitration referred in Section 2 (2) does
not apply in this case.

21. On facts, the respondents herein
initially filed an application under Section
36 for enforcement of the award before the
District commercial court but finding it as
not maintainable, they withdrew it from the
district commercial court and filed an
application under Section 36, before the
commercial division of the High Court at
Lucknow.

22. It is not in dispute that an award
though it has not been rendered by a Court,
has to be enforced/executed through a
Court under Section 36 in the same manner
as if it were a decree of the Court, but
Section 36 does not specify the Court
which is to execute it, therefore, we have to
take recourse to the definition of Court as
contained in Section 2(1)(e) of the Act,
1996. Section 2(1)(e) of the Act 1996 reads
as under:-

"2 (1) Definitions. (1) In this
Part, unless the context otherwise requires,
-

(a)
"arbitration"
means
any
arbitration whether or not administered by
permanent arbitral institution;

(b)
"arbitration
agreement"
means an agreement referred to in section
7;

(c) "arbitral award" includes an
interim award;

(d) "arbitral tribunal" means a
sole arbitrator or a panel of arbitrators;

(e) "Court" means- (i) in the
case
of
an
arbitration
other
than
170 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

Above quoted provision draws a
distinction
between
an
International
Commercial
Arbitration
and
other
Arbitration. The term 'Court' has different
meaning for these two categories of
Arbitration.

23. Section 2(1)(e)(i) applies to a case
of arbitration 'other than an international
commercial arbitration', therefore, the said
provision is not applicable to the case at
hand.

24. What is applicable is Section
2(1)(e)(ii). According to Section 2(1)(e)(ii),
Court means 'in the case of international
commercial arbitration, the High court in
exercise of its ordinary original civil
jurisdiction having jurisdiction to decide
the question 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 the
appeals from decrees of Courts subordinate
to that High Court'.

25. Section 2(1)(e) (ii) itself can be
split into two parts. As per the first part, the
High Court having jurisdiction to decide
the question forming subject matter of the
arbitration if the same had been the subject
matter of a suit, will be the Court in the
case
of
international
commercial
arbitration. As per the second part - in other
cases i.e. where the High Court does not
have original jurisdiction as referred in part
one, if it has jurisdiction to hear appeals
from decrees of Courts subordinate to that
High Court, such High Court would be the
Court in case of International Commercial
Arbitration.

26. Now, based on the aforesaid
definition, as regards Allahabad High
Court, it does not have original civil
jurisdiction to decide the questions forming
the subject matter of the arbitral award
which is to be enforced in this case,
therefore, the first part of 2(1)(e)(ii) does
not apply, but, it does have jurisdiction to
her appeals from decrees of Courts
subordinate to it under the Code of Civil
Procedure, etc., therefore, it is the second
part which applies. This has not been
disputed by Shri Pritish Kumar, learned
Senior Counsel for the appellant.

27. We have therefore to be guided by
the definition of Court as contained in
Section 2 (1)(e)(ii) of the Act, 1996 in this
regard,
especially
as,
both
Section
2(1)(e)(ii) and Section 36 fall in part I of
the Act 1996.

28. On a bare reading of the aforesaid
provision,
the
Court
which
has
to
execute/enforce the award under Section
12 All. Shri Colonizers And Developers Pvt. Ltd. & Anr. Vs. Abha Gupta
171
36, which falls in part I of the Act of 1996
which is the part applicable in the case at
hand on account of the fact that the seat of
arbitration in this case was within India, is
the High Court and, in this case, the
Allahabad High Court. We may in this
regard refer to Section 2(2) which says that
this part i.e. part I shall apply where the
arbitration is in India.

Of course, proviso thereto does
not apply so far as the reference to
international commercial arbitration is
concerned as already dealt with in the case
of BALCO (supra) and PASL Wind
Solutions Pvt. Limited (supra).

29. As stated earlier, Section 36 does
not specifically indicate the Court which
has to execute/enforce the award; whether
it be a domestic award pertaining to an
international commercial arbitration or a
domestic arbitration, it only provides the
manner in which the award is to be
enforced/executed. It has, therefore, to be
read conjointly with Section 2(1)(e) to
determine the Court which is competent to
enforce it.

30. Merely because it has to be
enforced in accordance with the provisions
of Code of Civil Procedure in the same
manner as if it were a decree of the Court
cannot lead us to conclude that such
enforcement is to be done through the
Commercial Court at the District level
because decrees of Courts are executable in
U.P. by District Court as Allahabad High
Court does not have original jurisdiction as
suggested by Shri Pritish Kumar, as, we
cannot ignore Section 2(1)(e)(ii) of the Act
1996 referred earlier.

31. The words 'in other case, a High
Court having jurisdiction to hear appeals
from decrees of courts subordinate to that
High Court' occurring in second part of
Section 2(1)(e)(ii) of the Act 1996 clinches
the issue in the facts of this case.

32. We cannot read Section 36 of the
Act 1996 in isolation. It has to be read with
Section 2(1)(e)(i) and (ii) which defines
'Court'. High Courts which have original
jurisdiction referred in part one of Section
2(i)(e)(ii) will be Courts for International
Commercial Arbitration in the context of
Part I of the Act 1996, whereas, 'in other
cases' a High Court having jurisdiction to
hear appeals against decrees of Courts
subordinate to it, will be such Courts, for
Part I of the Act 1996. Within Part I of the
Act 1996, Section 2(1)(e) does not make
any
distinction
between
International
Commercial Arbitration based on whether
it is party-centric or place-centric. To put it
differently, wherever Part I of Act 1996
applies, the definition of Court contained in
Section 2(1)(e) will apply. It will not apply
to Part II of the Act 1996.

33. As stated earlier, this court does
not have original civil jurisdiction to decide
questions forming the subject matter of the
arbitration award at hand, but, it is a High
Court having jurisdiction to hear appeals
from decree of courts subordinate to it,
therefore, and application for enforcement
of an award governed by Part I such as the
one at hand, Allahabad High Court is the
Court for filing it.

34. So far as the 'foreign awards' in the
context
of
international
commercial
arbitration are concerned, their enforcement
has been dealt separately in part-II of the
Act 1996, therefore, in view of Section 2(2)
definition of the 'Court' as contained in
Section 2(1)(e) could not be read into or
applied to Part II of the Act 1996 and
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 47 thereof. It applies only to part-I
of the Act 1996 which includes Section 36
meant for enforcement of a domestic award
including those rendered in the context of
international commercial arbitration.

35. Section 47 is a separate provision
contained in part-II of the Act 1996 for
enforcement of Foreign award and it is in
this provision that an explanation was
added by Act No. 3 of 2016 according to
which 'Court' was defined for the purposes
of the said section and the sections which
were to follow in that chapter i.e Chapter-1
of part-II as there was no definition of
'Court' in part-II separately, and such
definition contained in Part I of the Act
1996 cannot be applied to it.

36.
Merely
because
of
amendment/addition of Explanation in Section
47 of Part II of the Act 1996 no inference can
be drawn that for enforcement of a domestic
award
in
an
international
commercial
arbitration, the Commercial Court at the
District level will be the competent forum as
these two issues are separate and are governed
by different parts/provisions of the Act 1996,
especially in view of definition of 'Court'
contained in Section 2(1)(e)(ii) which is in Part
I of the Act 1996, just as Section 36 of the Act
1996. Section 2(1)(e)(ii) does not carve out
any such exception.

37. As there was no definition of
Court pertaining to Part-II, therefore, an
explanation was added by Act No. 3 of
2016. There was already a definition of
Court existing in Part-I which obviously
was not applicable to part-II, hence this
amendment was made in Section 47 of the
Act 1996.

38. In this view of the matter, the
contention of Shri Pritish Kumar, learned
Senior Counsel that because of this
amendment in Section 47 contained in Part
II of the Act 1996, the inference logically
to be drawn is that other awards, that is,
other than foreign awards i.e. domestic
awards, even if they relate to international
commercial
arbitration,
would
be
enforceable and executable by the District
Commercial Courts and this is the logical
conclusion according to him, cannot be
accepted by us.

39. Part-II of the Act 1996 is separate
from part-I and there is no interplay of the
provisions of the two parts of the Act 1996
in view of what has been dealt with in the
Constitutional Bench Judgment in the case
of BALCO (supra) and three-Judge Bench
decision in the case of PASL Wind
Solutions Private Limited (supra).

40. Having gone through the scheme
of the Act 1996 and the Act 2015, we do
not find any other provision which could
persuade us to take any other view of the
matter nor do we find anything there in the
scheme of the two Acts or the intent as was
canvassed by Shri Pritish Kumar that the
Court in the context of the case at hand
should be the District Commercial Court
and not the commercial division of the
High Court.

41. We may in this very context refer
to Section 10 of the Act 2015, which is
primarily a procedural law, as already
observed by Hon'ble the Supreme Court in
PASL Wind Solutions Private Limited
(supra). Section 10 of the Act of 2015 reads
as under:-

"10. Jurisdiction in respect of
arbitration matters. -Where the subjectmatter of an arbitration is a commercial
dispute of a Specified Value and-
12 All. Shri Colonizers And Developers Pvt. Ltd. & Anr. Vs. Abha Gupta
173

(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"

42. Sub-Section 2 and Sub-section 3
of Section 10 of the Act 2015 relate to
arbitration
other
than
international
commercial
arbitration,
therefore,
apparently, they are not applicable to the
case at hand.

43.
The
provision
which
is
applicable is Sub-section 1 of Section 10
of the Act 2015 which itself indicates
that
in
matters
of
international
commercial arbitration all applications
or appeals arising out of such arbitration
will lie before the High Court. This
provision is in sync with Section
2(1)(e)(ii) and Explanation to Section 47
of the Act 1996. Act 2015 was amended
subsequent
to
Act
1996
and
the
Legislature is presumed to know the
earlier enactment especially definition of
'Court' contained in Section 2(1)(e)
thereof and explanation to Section 47
contained therein.

44. Thus, in either eventuality,
where it is the Act 1996 or the Act 2015,
it is the High Court which is the 'Court'
for filing an application under Section
36 of the Arbitration and Conciliation
Act, 1996 for enforcement of a domestic
award pertaining to an international
commercial arbitration.

45. For all these reasons, none of
the
contentions on
behalf
of
the
appellant are tenable and we are of the
opinion that the judgment of the learned
Single Judge does not suffer from any
error in so far as it rejects the
objections of the appellants regarding
maintainability of the application of the
respondents under Section 36 of the Act
1996. None of the arguments on behalf
of the appellants has any force nor does
the decision in Sundaram Finance
Limited (supra) have any application to
the facts and issues involved in this
case.

46. We accordingly dismiss the
special appeal.
----------
174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 12 ILRA 174
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE INDRAJEET SHUKLA, J.

Special Appeal No. 431 of 2025

Ashish Yadav ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Issue for Consideration
(1) Maintainability of Special Appeal against an
interlocutory order of a procedural nature.

Headnotes
(A) Practice and procedure - Special
Appeal - Interlocutory order - Vide
impugned order two weeks time was
granted to file response to the short
counter affidavit - Special Appeal was
filed against it - Maintainability. (E-1)

Held : The order impugned is purely an
interlocutory order of a procedural nature which
does not decide any issue whatsoever - Special
Appeal is maintainable against a judgment or
final order or an order having the trappings of
finality. The nature of the order which is
impugned herein does not fall in any of these
categories - No appeal lies under Chapter VIII
Rule 5 of the Allahabad High Court Rules, 1952
against the order impugned herein. This appeal
is not maintainable. [Paras 3, 4 and 5]

Case Law Cited
Midnapore Peoples' Coop. Bank Ltd. and Ors.
Vs. Chunilal Nanda and Ors., (2006) 5 SCC
399; Ashutosh Shrotriya and Ors. Vs. ViceChancellor, Dr. B.R. Ambedkar University and
Ors., (2015) 4 UPLBEC 2673; Deoraj Vs. State
of Maharashtra and Ors., AIR 2004 SC 1975;
- referred to.

List of Acts
Allahabad High Court Rules, 1952 - Chapter
VIII, Rule 5.
List of Keywords
Interlocutory
order;
Special
Appeal;
Maintainability; Trappings of finality; Judgment;
Letters Patent.

Case Arising From
The order dated 26.11.2025 passed by Single
Judge in Writ - A No. 13339 of 2025.

Appearances for Parties
Advs. for the Appellant : Alok Mishra
Advs. for the Respondents : Additional Chief
Standing Counsel

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Indrajeet Shukla, J.)

1. Heard Shri Alok Mishra, learned
counsel for the appellant and learned
Additional Chief Standing Counsel for the
State.

2. By means of this special appeal an
order passed on 26.11.2025 by learned
Single Judge in Writ - A No. 13339 of
2025 has been challenged. The said order
reads as under:-

"Short affidavit filed today on
behalf of State is taken on record.

Learned counsel for petitioner
prays for and is granted two weeks time to
file response thereto.

List this case in 2nd week of
January, 2026 as fresh."

3. The order impugned is purely an
interlocutory order of a procedural nature
which
does
not
decide
any
issue
whatsoever. Two weeks time was sought
by the learned counsel for the appellant
himself which was granted and the matter
was posted in the 2nd week of January,
2026 as fresh.