(Prayer In Both Appeals: Appeals filed under Order XXVI Rule 1 of O.S. Rules read with Clause 15 of Letters Patent against the common order and Decreetal order dated 19.08.2019 passed by His Lordship Mr.R.Subramanian in Application Nos. 2291 and 2292 of 2019 on the file of Original Side of this Hon'ble Court.)

Common Judgment:

1. Both these Appeals have been filed questioning a common order dated 19.08.2019 of a learned Single Judge of this Court in Application Nos. 2291 of 2019 and 2292 of 2019 on the file of the Original Side (Commercial division) of this Court.

2. The appellant M/s. Ennore Tank Terminals Private Limited and the respondent Kamarajar Port Limited had entered into a license agreement dated 10.11.2004 relating to the commercial terms of the operation of an integrated Marine Liquid Terminal Structure featuring a 360 meters continuous quay and tank farm and related facilities to handle liquid products at Kamarajar Port Trust. The right to operate the Marine Liquid Terminal (MLT-I) had been granted by the respondent pursuant to a tendering process. Under the license agreement, the appellant was permitted to build, operate and transfer the MLT-I tank farm in Ennore Port.

3. The appellant sought to exercise their right for expansion as provided under the terms of the agreement and submitted a Detailed Project Report 2014 DPR.

4. This was however rejected by the respondent. Disputes arose between the parties in relation to the rights of expansion under the license agreement. The disputes were referred to arbitration. An award was passed on 28.09.2017 holding that the appellant was entitled to an expansion of 330 meters as projected in 2014 DPR. Neither the appellant nor the respondent filed applications under Section 34 of the Arbitration and Conciliation Act 1996 (the Act) questioning the said award. The award had thus become final.

5. The respondent neglected to comply with the award, but attempted to grant Marine Liquid Terminal – II (MLT-II) to another consortium, which according to the appellant would prevent the expansion rights granted under the award.

6. The appellant then filed O.A.Nos. 184 and 185 of 2018 under Section 9 of the Act seeking a restraint against the respondent from allotting alternate MLT-II to any third party. These applications were dismissed by a learned Single Judge by order dated 06.06.2018. Thereafter, the appellant filed O.S.A.Nos. 262 and 263 of 2018. The Division Bench directed status quo. In the meanwhile, the appellant also filed an Enforcement Petition under Section 36 of the Act in E.P.No. 124 of 2018 before the learned Master, who allowed the Execution Petition by order dated 08.02.2019, upholding the right of expansion of the appellant. The learned Master also directed the respondent to approve the 2014 DPR and allot an area of 330 meters expansion of the existing MLT-I and to allot an area of 300 sq.mts for raised area for truck drivers and 3.75 acres to install additional surcharge area within a period of six weeks.

7. The respondent filed Application Nos. 2291 and 2292 of 2019 questioning the order of the learned Master before the learned Single Judge seeking to set aside the order of the learned Master and to grant stay of the said order. These applications had been filed under Order 14 Rule 12 of the Original Side Rules of the Madras High Court.

8. The appellant herein raised a preliminary objection regarding maintainability of the applications since an appeal against an order passed in execution of an Arbitration award is not provided under the Act. The learned Single Judge passed an order on 19.08.2019 holding that the applications were maintainable. Challenging that order, the present Appeals have been filed.

9. The learned Single Judge had held that once an award had been passed, the arbitral proceedings are terminated under Section 32 of the Act. He further held that enforcement of the award is outside the Arbitration and Conciliation Act. He placed reliance on the Judgment of the Hon'ble Supreme Court in Sundaram Finance Ltd., Vs. Abdul Samad and another reported in (2018) 3 SCC 622 and held that a reading of paragraph No.14 of the said Judgment would show that the Tribunal does not have the power of execution and for the purpose of execution of a decree, the award has to be enforced in the same manner as if it were a decree under the Code of Civil Procedure. The learned Single Judge further held that the Judgment of the Hon'ble Supreme Court in Fuerst Day Lawson Ltd., Vs. Jindal Exports Ltd., reported in (2011) 8 SCC 333 cannot be read to have laid down a proposition to bar appeals arising out of execution of an award. The learned Single Judge further held that the Judgment of the Hon'ble Supreme Court in Kandla Export Corporation Vs. OCI Corporation reported in (2018) 14 SCC 715 also does not support the contention that an appeal would not lie against an order passed in execution of an award.

10. The learned Single Judge held that the provisions under Section 36 of the Arbitration and Conciliation Act 1996 makes an award a deemed decree executable under the provisions of the Code of Civil Procedure and once execution is levied under the Code of Civil Procedure all rights of appeal under the code would ennure to question an order passed in an Execution Petition. The learned Single Judge held that the bar of filing on appeal under Section 37 would only be in relation to an order passed under the provisions of the Arbitration and Conciliation Act 1996 and not in relation to orders passed in execution of an award which according to the learned Single Judge was outside the Act and under the provisions of the Code of Civil Procedure.

11. The learned Single Judge further held that in Execution Petitions in the Original Side of this Court, the Master acts only as a delegate of the Court and an Appeal against an order of the learned Master passed in execution is only in the nature of a review and therefore the bar created under Section 37 of the Arbitration and Conciliation Act 1996 would not be attracted. Holding as above, the learned Single Judge held that the applications/appeals against the order of the learned Master filed under Order 14 Rule 12 of the Original Side Rules were permissible and maintainable.

12. Questioning the said view taken by the learned Single Judge, the respondent in the applications has filed these Original Side Appeals.

13. Mr. Vijay Narayan, learned Senior Counsel assailed the reasonings given to justify the maintainability of the applications which in effect were appeals against the order of the learned Master. The learned Senior Counsel first pointed out Section 5 of the Act and was very emphatic in his submission that the legislation did not provide for frequent judicial interventions in arbitration proceedings. He contended that though Section 32 of the Act provided for termination of arbitral proceedings, the further proceedings under Section 34, Section 36 and 37 of the Act are all confined within the four walls of the procedure enunciated under the Act and under no other statute. He contended that the enforcement of an award under Section 36 of the Act would necessarily have to conform only to the stipulations provided under the Act and not under the Code of Civil Procedure. An award is only deemed to be a decree of a Civil Court and is executable as such under the Code of Civil Procedure but it is not an actual decree of a Civil Court. The learned Senior Counsel argued that the provisions of the Code of Civil Procedure could be invoked only so far they assist in enforcement of the award and not in derailing such enforcement. Judicial interventions could only be to the extent provided under the Act itself.

14. In this connection, strong reliance had been placed on Section 5 and Section 37 of the Act. The learned Senior Counsel argued that when the Master is considered to be a delegate of the Court, the procedure involved in preferring appeals against any order of the Master can only be as envisaged under Section 37 of the Act and not under Order 14 Rule 12 of the Original Side Rules, under which every order of the Master could be made appealable before a learned Single Judge. The learned Senior Counsel placed very strong reliance on the Judgment of the Hon'ble Supreme Court in Fuerst Day Lawson Ltd., referred supra reported in (2011) 8 SCC 333 to contend that the provisions of the Arbitration and Conciliation Act 1996 are exhaustive and if an order is not appealable under Section 50 of the said Act then, it cannot be made appealable under any other law. The learned Senior Counsel also placed reliance on the observations of the Hon'ble Supreme Court in Kandla Export Corporation Ltd., reported supra reported in (2018) 14 SCC 715, again with respect to maintainability of an appeal under Section 50 of the Act, vis-a-vis Section 13(1) of the Commercial Courts Act 2015.

15. The learned Senior Counsel also pointed out to a Full Bench Judgment of the Bombay High Court in Conros Steels Pvt. Ltd., Vs. Lu Qin (Hong Kong) Company Ltd., reported in 2014 SCC OnLine Bom 2305, wherein the question referred to the Full Bench was whether an appeal under the provisions of Clause 15 of the Letters Patent against an order passed by a learned Single Judge in a Civil Suit in an application filed under Section 8 of the Arbitration Act would be maintainable or not.

16. The learned Senior Counsel then pointed out the Judgment of the Hon'ble Supreme Court in Sundaram Finance Ltd., Vs. Abdul Samad referred supra reported in (2018) 3 SCC 622 which had been relied on by the learned Single Judge, and pointed out that it had been actually therein held that an award could be enforced in accordance with the provisions of the Code of Civil Procedure but the award itself is not a decree of the Civil Court. It is a Tribunal which renders an award and since the Tribunal does not have the power of execution of a decree, the award is enforced in the same manner as if it was a decree under the Code.

17. The learned Senior Counsel argued that the reasoning of the learned Single Judge that these observations of the Hon'ble Supreme Court would indicate that an award stands outside the Arbitration Act is not correct and emphasised that an award would still have to be enforced only under the provisions of the Arbitration Act and not otherwise. Mr. Vijay Narayan, therefore urged that this Court should hold that Appeals against an order of the learned Master in an Execution Petition are not maintainable and that therefore these Appeals should be allowed and the order of the learned Single Judge should be set aside.

18. Mr.S.Parthasarathy, learned Senior counsel however pointed out Section 13(1-A) of the Commercial Courts Act 2015 which provided that appeals shall lie from orders of a Commercial Court or a Commercial Division only against such orders that are specifically enumerated under Order 43 of the Code of Civil Procedure and under Section 37 of the Arbitration Act. The learned Senior Counsel argued that the order of the learned Single Judge in the applications which are now impugned do not fall under any of the orders enumerated under Order 43 of the Code of Civil Procedure or under Section 37 of the Arbitration Act. He further pointed out Section 100A of the Code of Civil Procedure which also barred an appeal from an Original or Appellate decree or order heard and decided by a Single Judge of the High Court. The learned Senior Counsel therefore argued that these Original Side Appeals are themselves not maintainable and urged that the Appeals should be dismissed.

19. We have carefully considered the arguments advanced and perused the materials available on records.

20. These appeals have been preferred against the common order of a learned Single Judge on the Original Side of the High Court in effect, the Commercial Division, in Application Nos. 2291 and 2292 of 2019 in E.P.No. 124 of 2018.

21. The appellant herein had the benefit of an award which affirmed the right of the appellant to expand by 330 meters the Marine Liquid Terminal-I granted to it under an agreement with the respondent. The circumstances surrounding grant of such license to operate have been narrated in the initial portions of this Judgment. However, disputes arose between the appellant and the respondent in putting into effect the claim of the appellant for such expansion. The disputes were referred to arbitration. Finally an award on the aforesaid terms were granted.

22. The appellant then filed E.P.No. 124 of 2018 under Section 36 of the Arbitration and Conciliation Act, 1996 before the learned Master sitting on the Original Side of the High Court seeking enforcement of the Award.

23. The Master is a delegate of the Court in the Original Side of this Court.

24. The applications that could be preferred before the Master had been enumerated under Order XIV Rule 10 of the Original Side Rules. Under Order XIV Rule 10(xix) of the Original Side Rules gives the power to the Master to entertain an Execution Petition. The said provision is as follows:-

               “(xxix) Applications for or relating to an order for transmission or for the execution of a decree or order for arrest, attachment, sale or otherwise, with power to issue notice under Order XXI, Rules 16, 22 or 37 of the Code, or where notice is otherwise necessary or considered advisable (except matters dealt with by the Registrar under the powers delegated to him by the Chief Justice.”

25. Order XIV Rule 12 of the Original Side Rules provides for an appeal by a person affected by any order or decision of the Master in respect of all matters judicially dealt in the exercise of the powers delegated. Order XIV Rule 12 of the Original Side Rules is as follows:-

               “Rule 12: Any person affected by any order or decision of the Master (except on a question of Courtfees) or of the Registrar, in respect of all matters judicially dealt with in the exercise of the powers delegated to him by the Hon'ble Chief Justice from time to time may appeal therefrom to a Judge. Such appeal shall be by Judge's summons filed within eight clear days of the date of the order or decision or within such further time as the Judge may allow and shall briefly set out the grounds of the appeal. Except with the special leave of the Court no fresh affidavit or document or evidence will be allowed to be filed or adduced.

               It shall not be necessary to file a copy of the order or decision appealed against and the time for obtaining any such copy shall not be excluded in computing the said period of eight days.

               Unless the Court shall otherwise order, the filing of an appeal shall not operate as a stay of the order or decision appealed against.”

26. The one distinction which must be kept in mind is that the matter in hand is a commercial dispute and is governed by Commercial Courts Act 2015 and more specifically by the Arbitration and Conciliation Act, 1996. Under the Commercial Courts Act, the hierarchy of the Courts are a Commercial Court, the Commercial Division and the Appellate Commercial Court / Appellate Commercial Division. In the High Court, the Court adjudicating commercial disputes is called the Commercial Division. When an Execution Petition is preferable before the Master in a cause arising out of a commercial lis or out of an arbitration award, on adjudication of a commercial dispute, the Master though normally under the Original Side Rules is termed as a delegate of the Court, while adjudicating an Execution Petition arising out of a Commercial Cause acts not as a delegate but as a substitute of the Commercial Division. The concept of 'Master' is not recognised in the Commercial Courts Act.

27. The Commercial Courts Act provides a bar of an appeal from an order passed by the Commercial Division under Section 13(1-A) of the Act. When this provision is read holistically, it would imply that in a cause arising from a commercial dispute and if it is presented before the learned Master then an appeal would not lie from the order of the Master as though he was a delegate of the Commercial Division. The Execution Petition had been presented before the Master more out of convenience, but should have been preferred before the Commercial Division itself. An appeal is not provided under the Commercial Courts Act and Section 5 of the Arbitration Act restricts judicial interventions in arbitral proceedings.

28. In the instant case, the appellant herein had filed an Execution Petition under Section 36 of the Arbitration Act before the learned Master, on a cause arising out of a commercial dispute. It is also to be noted that an Award by an Arbitral Tribunal is deemed to be a decree but not a decree of a Court since the Arbitral Tribunal is not a Court. The award passed by an Arbitral Tribunal can be enforced using the provisions of the Code of Civil Procedure to put into effect the award. As a matter of fact every Rule under Order 21 of the Code of Civil Procedure has been formulated only with the object to put into effect a decree of a Court through Execution of the decree, and not to stifle execution. When a Master passes an order in an Execution Petition filed under Section 36 of the Arbitration Act, the said order is equivalent to the order of the Commercial Division of the High Court and there cannot be an appeal filed again before the Commercial Division. To reiterate the Master acts as a delegate of the Court when he discharges judicial act under the Original Side Rules and not when he discharges judicial act under the Commercial Courts Act or on a Commercial dispute adjudicated under the Arbitration and Conciliation Act, 1996. This view has been strengthened by the subsequent amendment to the procedure when Execution Petitions on a commercial dispute are brought directly before the Commercial Division and not before the Master.

29. On the other hand, when the Master sits on the Original Side of the High Court and examines any other cause which is not commercial in nature, he acts as a delegate of the Court and any order passed by him though termed to be appealable under Order XIV Rule 12 of the Original Side Rules is only a review of the said order by the learned Single Judge. This is provided in view of the hierarchy of the Courts. The Master is delegate as subordinate in rank to a learned Single Judge sitting in the Original Side. A Civil Judge, Senior Division adorns the chair of a Master. Since he acts as delegate of a High Court Judge, any order passed by him could be sought to be reviewed or re-examined by a learned Single Judge to check whether the delegate has functioned within the rules laid down by law. This check is required to maintain judicial discipline and consistency.

30. On the other hand when the Master examines a commercial cause, he does not examine it as a delegate of the Commercial Division of the High Court. It is for this reason that subsequent amendment had been brought in that Execution Petitions under Section 36 of the Act should be presented only before the Commercial Division in the High Court and not before the Master. Merely because at a particular point of time, the Master was discharging such duty would not give a right to file an appeal again before the Commercial Division since a right to an appeal against an order passed by the Commercial Division is restricted under Section 13(1-A) of the Commercial Courts Act, 2015 and more particularly Section 5 of the Act restricts judicial intervention.

31. In Kandla Export Corporation referred supra reported in (2018) 14 SCC 715, the question before the Hon'ble Supreme Court had been stated as follows:-

               “The present appeals raise an important question as to whether an appeal, not maintainable under Section 50 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”), is nonetheless maintainable under Section 13(1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as “the Commercial Courts Act”). ”

32. In paragraph No.13, was observed is follows:-

               “5. 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 XLIII 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 XLIII of the 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.”

33. The Hon'ble Supreme Court finally held as follows:-

               “25. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie.

               26. In this view of the case, it is unnecessary to advert to Shri Giri’s arguments based on Section 21 of the Commercial Courts Act. Section 21 would only apply if Section 13(1) were to apply in the first place, which, as has been found, cannot be held to apply for the reasons given hereinabove. Equally, it is unnecessary to advert to the arguments of the learned counsel for the Appellants based on Section 11 of the Commercial Courts Act.

               27. The matter can be looked at from a slightly different angle. Given the objects of both the statutes, it is clear that arbitration itself is meant to be a speedy resolution of disputes between parties. Equally, enforcement of foreign awards should take place as soon as possible if India is to remain as an equal partner, commercially speaking, in the international community. In point of fact, the raison d’être for the enactment of the Commercial Courts Act is that commercial disputes involving high amounts of money should be speedily decided. Given the objects of both the enactments, if we were to provide an additional appeal, when Section 50 does away with an appeal so as to speedily enforce foreign awards, we would be turning the Arbitration Act and the Commercial Courts Act on their heads. Admittedly, if the amount contained in a foreign award to be enforced in India were less than Rs. one crore, and a Single Judge of a High Court were to enforce such award, no appeal would lie, in keeping with the object of speedy enforcement of foreign awards. However, if, in the same fact circumstance, a foreign award were to be for Rs.one crore or more, if the Appellants are correct, enforcement of such award would be further delayed by providing an appeal under Section 13(1) of the Commercial Courts Act. Any such interpretation would lead to absurdity, and would be directly contrary to the object sought to be achieved by the Commercial Courts Act, viz., speedy resolution of disputes of a commercial nature involving a sum of Rs.1 crore and over. For this reason also, we feel that Section 13(1) of the Commercial Courts Act must be construed in accordance with the object sought to be achieved by the Act. Any construction of Section 13 of the Commercial Courts Act, which would lead to further delay, instead of an expeditious enforcement of a foreign award must, therefore, be eschewed. Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-à-vis the more general statute, namely the Commercial Courts Act, being left to operate in spheres other than arbitration.”

34. It is thus seen that the scope of appeal in enforcement of awards have been narrowed down by the Hon'ble Supreme Court.

35. Section 5 of the Arbitration and Conciliation Act, 1996 is as follows:-

               “5. Extent of judicial intervention.- 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.”

36. Section 37 of the Arbitration and Conciliation Act is as follows:-

               “37. Appealable orders.- (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:-

               a) refusing to refer the parties to arbitration under section 8;

               b) granting or refusing to grant any measure under section 9;

               c) setting aside or refusing to set aside an arbitral award under section 34.

               (2) Appeal shall also lie to a Court from an order of the arbitral tribunal

               a) accepting the plea referred to in subsection (2) or sub-section (3) of section 16; or

               b) granting or refusing to grant an interim measure under section 17.

               3). No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. ”

37. Again the legislation had thought it requisite that judicial intervention should be restricted in matters relating to Arbitration. Courts should respect such limitation.

38. The opinion of the learned Single Judge that an Execution Petition under the Arbitration and Conciliation Act stands outside the provisions of the Act, in our opinion, is not correct and requires interference and is set aside. The enforcement of an award can be done only within the confines of the said Act. The arms of the Code of Civil Procedure could be used to ensure that the award is executed. They are not meant to stifle execution.

39. We hold that the view of the learned Single Judge runs contrary to the observation of the Hon'ble Supreme Court in Sundaram Finance Ltd., referred supra reported in (2018) 3 SCC 622 wherein the Hon'ble Supreme Court had very clearly stated that an award is not a decree of the Civil Court as the decree has never been passed by the Civil Court. It had been passed by an Arbitral Tribunal. The Tribunal does not have the power to execute the award. It is for that limited purpose that the provisions of the Code are resorted to only to put into effect the award and for no other purpose.

40. Mr.S.Parthasarathy, learned Senior Counsel pointed out Section 13(1A) of the Commercial Courts Act and Section 100A of the Code of Civil Procedure to hold that the present Appeals are not maintainable.

41. However when patent irregularity in an order is presented before us, we have to exercise our jurisdiction to set right a wrong and accordingly, we take these appeals as an opportunity to correct the position of law and hold that appeals filed during the course of Execution of an Arbitration Award arising out of a commercial dispute are not appealable. We cannot shrink from that duty. It might be a little incongruous that we hold that an appeal against the Master is not maintainable but still hold that a further appeal emanating from the order of the learned Single Judge is maintainable but however patent illegality is a term which runs through the course of the Arbitration Act and we refer to the said phrase to put in proper perspective, the scope of judicial intervention and its limitations. We would therefore take upon ourselves the responsibility to correct the view of the learned Single Judge and hold that Application Nos. 2291 and 2292 of 2019 were not maintainable before the learned Single Judge.

42. After the introduction of Section 100A of CPC, 1908, a part of the first limb and the second limb of clause 15 of the Letters Patent have become redundant. The third limb has become redundant in view of the Abolition of Privy Council Jurisdiction Act, 1949. All that survives now is a part of the first limb which provides for appeals from the Judgment of a Single Judge to the High Court itself.

43. In Union of India, Ministry of Petroleum Vs. Government of Tamil Nadu, reported in (2013) 4 MLJ 721, a Division Bench opined that in an intra Court appeal, the Division Bench examines the correctness of the order passed by the learned Single Judge vis-a-vis the material on record. It acts as a Court of correction.

44. In Rubinetterie Bresciane Bonomi SPA Vs. Lehry Instrumentation and Valves Pvt. Ltd., reported in (2019) 2 MLJ 257 : (2019) 1 LW 597, a Division Bench acknowledged the restriction in entertaining an appeal as stated in the proviso to Section 13(1-A) of the Commercial Courts Act, 2015, but held that the only exception would be cases where the order impugned is passed before the suit was transferred to the Commercial Division. The very fact that the learned Master entertained the Execution Petition in the instant case and that the Applications were filed under Order XIV Rule 12 of Original Side Rules would indicate that the earlier procedure as provided under the Original Side Rules prevailed.

45. Accordingly, these Appeals are allowed. The order of the learned Single Judge in Application Nos. 2291 and 2292 of 2019 in E.P.No. 124 of 2018 dated 19.08.2019 are set aside. We remand the proceedings in E.P.No. 124 of 2018 for further hearing and if the said Execution Petition had been transferred to the Commercial Division and renumbered, for further proceedings in such renumbered Execution Petition. No order as to costs. Consequently, connected Miscellaneous Petitions stand closed.