Execution Petition No. 177 of 2024 · Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.23189 of 2025 (In the matters of petitions under Articles 226 and 227 of the Constitution of India, 1950). M/s. Bhanja Minerals Pvt. Ltd. …. Petitioner(s) -versus- M/s Terrier Security Service Ltd …. Opposite Party(s) Advocates appeared in the case through Hybrid Mode: For Petitioner (s) For Opp. Party(s) : : -versus- Mr. Amitav Mishra, Adv. Mr. Anupam Dash, Adv. CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATES OF HEARING:- 19.09.2025 DATE OF JUDGMENT:- 31.10.2025 Dr. Sanjeeb K Panigrahi, J. 1. The petitioner has filed the present Writ Petition challenging the order dated 09.07.2025 passed by the learned Civil Judge (Senior Division), Commercial Court, Cuttack, in Execution Petition No.177 of 2024, whereby the petitioner’s application to drop the execution proceedings on the ground of lack of jurisdiction was rejected. I. FACTUAL MATRIX OF THE CASE:
Legal Reasoning
2. Succinctly put, the facts of the case are as follows: Page 1 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 (i) The petitioner and the opposite party entered into a Master Service Agreement dated 27.01.2020 for the provision of security services to the petitioner’s premises. The agreement contained a dispute resolution clause under the heading “Settlement of Disputes, Governing Law and Jurisdiction,” which provided for arbitration and stipulated that the parties would submit to the exclusive jurisdiction of the Courts at Bhubaneswar. (ii) In the course of performance, the opposite party committed several infractions and lapses in rendering the agreed services. Despite repeated communications from the petitioner, the lapses continued. Instead of rectifying them, the opposite party raised untenable claims and eventually withdrew its services. (iii) Subsequently, the petitioner received a notice from the Commercial Court, Cuttack, in Execution Petition No.177 of 2024. Upon appearance through counsel on 23.10.2024, it was discovered that the execution petition sought enforcement of an ex parte arbitral award passed by a sole arbitrator appointed under Section 11 of the Arbitration and Conciliation Act, 1996. (iv) It was later found that the petition under Section 11 (ARBP No.39 of 2022) had been filed without complying with the prerequisite of mutual settlement envisaged in the agreement and contrary to the agreed jurisdiction clause. The petitioner had not received any notice in the Section 11 proceedings and, therefore, could not raise these objections before the Court.
Legal Reasoning
(v) By order dated 16.09.2022, this Court appointed Mr. Sidharth Shankar Padhy, Advocate, as the sole arbitrator, with the place of arbitration Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 fixed at the Arbitration Centre, High Court of Orissa, Cuttack. Pursuant thereto, ARBP No.50 of 2022 was registered, and the learned arbitrator passed an ex parte award dated 05.02.2024 in favour of the opposite party, awarding the claimed amount with interest. (vi) The record of the arbitral proceedings shows that notices sent to the petitioner by post and e-mail were returned unserved. The arbitrator thereafter directed substituted service through publication on 18.04.2023 in The Samaj (Keonjhar Edition) and The New Indian Express (Bhubaneswar Edition). The petitioner, who subscribes to neither newspaper, remained unaware of the proceedings and was thus prevented from appearing and contesting the case. (vii) Upon learning of the award, the petitioner filed an application before the Commercial Court, Cuttack, in the execution proceedings seeking to drop the same for want of territorial jurisdiction, both under law and under the agreement. The opposite party filed objections contending that an arbitral award may be executed anywhere in the country. (viii) After hearing both sides, the learned Civil Judge (Senior Division), Commercial Court, Cuttack, by order dated 09.07.2025, rejected the petitioner’s plea, holding that since the arbitration was conducted at Cuttack and the services were rendered there, no part of the cause of action arose at Bhubaneswar. The Court thus concluded that Bhubaneswar Courts lacked jurisdiction, despite the parties’ agreement to the contrary. (ix) Aggrieved by the impugned order, the petitioner has filed the present writ petition. Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 II. PETITIONER’S SUBMISSIONS: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) The petitioner submitted that the learned Sole Arbitrator, while passing the ex parte award dated 05.02.2024, expressly recorded under the heading “Non-appearance of the Respondent” that notices sent to the petitioner by post and e-mail were returned unserved. Thereafter, substituted service was directed through publication on 18.04.2023 in The Samaj (Keonjhar Edition) and The New Indian Express (Bhubaneswar Edition). The petitioner, who subscribes to neither newspaper, had no knowledge of the proceedings and was therefore prevented from appearing and presenting his case in Arbitration Case No.50 of 2022. (ii) The petitioner asserted that the learned Commercial Court, Cuttack failed to appreciate that in arbitration matters, the agreement holds primacy and that the exclusive jurisdiction of the Courts at Bhubaneswar, as expressly stipulated in the contract, could not be overridden. (iii) The petitioner contended that the Arbitration Centre of this Court conducts arbitrations in matters arising from across the State pursuant to orders under Section 11(6) of the Arbitration and Conciliation Act, 1996. Such administrative allocation does not alter the territorial jurisdiction agreed upon by the parties. Hence, the Courts at Bhubaneswar retain jurisdiction as per the agreement dated 27.01.2020. (iv) The petitioner further submitted that the learned Commercial Court, Cuttack erred in conflating the “place of arbitration” with the “seat of Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 arbitration”. A mere sitting of the arbitral tribunal at Cuttack pursuant to a Section 11 order does not displace the jurisdiction of Bhubaneswar Courts, which were designated by the parties as the exclusive forum under the agreement. (v) The petitioner contended that reliance placed by the learned Commercial Court on Sundaram Finance Ltd. v. Abdul Samad1 is misconceived. The Supreme Court therein held that an arbitral award may be executed anywhere in the country where the judgment debtor’s assets are located, without the necessity of obtaining a transfer decree, but it did not dilute the effect of a jurisdiction clause agreed upon by the parties. In the present case, the opposite party neither pleaded nor established that any of the petitioner’s assets are situated within the territorial jurisdiction of Cuttack. The learned Commercial Court therefore erred in assuming jurisdiction. (vi) The petitioner submitted that it is well settled that when parties to a contract confer exclusive jurisdiction on courts at a particular place, it is immaterial that no part of the cause of action has arisen there. The impugned order, being contrary to the settled law and the contractual clause, is liable to be set aside. (vii) The petitioner asserted that arbitration being a creature of contract, the terms of the agreement are of paramount importance. The dispute resolution clause, which provides both for arbitration and for jurisdiction, must be read as an integrated whole. Invoking one part of the clause on arbitration while disregarding the other on jurisdiction renders the clause internally inconsistent and defeats its object. 1 (2018) 3 SCC 622. Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 (viii) The petitioner submitted that the petitioner became aware of the ex parte arbitral award only at the stage of execution. A certified copy of the award was obtained on 17.03.2025 under Section 31(5) of the Arbitration and Conciliation Act, 1996, and ARBP No.41 of 2025 has since been filed before the learned Commercial Court, Bhubaneswar, which is presently pending consideration. (ix) The petitioner contended that the learned Commercial Court, Cuttack was misled by the arbitrator’s reference to Cuttack as the “place of arbitration” and wrongly assumed jurisdiction on that basis. Even assuming such an observation was made, it cannot confer jurisdiction where none exists under the contract or the law. (x) The petitioner submitted that the impugned order has been passed in a mechanical manner, as evident from the erroneous mention of the decretal amount as ₹5,08,764/- instead of the actual figure of ₹50,87,674/-. Such an error reflects non-application of judicial mind, rendering the order unsustainable in law. III. SUBMISSIONS OF THE OPPOSITE PARTIES: 4. Per contra, the learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) The opposite party submitted that the petitioner was duly served at every stage of the proceedings, including the Section 11 petition, the arbitration before the sole arbitrator, and the execution case, but failed to appear. In ARBP No.39 of 2022, this Court had recorded that “despite service of notice, none appears for the opposite party.” (ii) During the arbitration, the High Court of Orissa Arbitration Centre issued notice dated 27.10.2022 to the petitioner’s registered office Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 address, the same address used in all subsequent proceedings. When the notice was returned marked “insufficient address,” further notices were issued by post and e-mail to the company’s address and corporate e-mail ID available on the MCA portal, but these too were returned unserved. The arbitrator thereafter directed substituted service through publication, and notices were published on 18.04.2023 in The Samaj (Keonjhar Edition) and The New Indian Express (Bhubaneswar Edition). Despite such publication, the petitioner did not appear, and the proceedings continued ex parte, culminating in the award dated 05.02.2024. (iii) The Arbitration Centre subsequently sent a copy of the award to the same registered address by letter dated 08.02.2024. The address remained identical throughout the Section 11 petition, the arbitral proceedings, the execution case, and even in the present writ petition. Service at this address had already been held to be sufficient by this Court in its order dated 16.09.2022. (iv) The opposite party submitted that the agreement shows it was engaged to provide security services at the petitioner’s establishments situated at Plot No. 3B/1331, Sector-11, and B/1469, Sector-6, CDA, Cuttack. Since the work under the agreement was carried out at Cuttack, the cause of action for initiating arbitration arose there due to non-payment of dues. The Court, while considering the arbitration clause, directed that the arbitration be conducted under the aegis of the High Court of Orissa Arbitration Centre. It is contended that an arbitral award can be executed in any court having jurisdiction over the place where the decree can be enforced. Therefore, since the Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 petitioner’s establishments are located at Cuttack and the arbitration was conducted at the Arbitration Centre, Cuttack, the Commercial Court, Cuttack, has territorial jurisdiction to execute the award dated 05.02.2024. (v) It was further submitted that the impugned order is a well-reasoned one and does not warrant interference under Article 226 of the Constitution of India. The executing court, after considering all relevant facts and the agreement between the parties, rightly rejected the petitioner’s application. Since the petitioner’s assets are located at Cuttack and the arbitration was conducted at the Arbitration Centre, Cuttack, there is no legal bar to the execution of the award by the Commercial Court, Cuttack. The order is consistent with paragraph 20 of the judgment in Sundaram Finance Ltd. (supra), which permits execution of an arbitral award in any court having jurisdiction where the decree can be enforced. IV. EXAMINATION OF THE LEGAL MATRIX: 5. Heard learned counsel for the parties and perused the material on record. 6. The controversy that arises for consideration in the present writ petition is narrow but fundamental, namely, whether the learned Commercial Court, Cuttack, possessed jurisdiction to entertain Execution Petition No.177 of 2024, having regard to the express stipulation in the contract conferring exclusive jurisdiction upon the Courts at Bhubaneswar. 7. It is a settled proposition that in matters arising under the Arbitration and Conciliation Act, 1996, the determination of which court possesses Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 jurisdiction depends upon the seat of arbitration as well as any contractual jurisdiction clause agreed upon by the parties. 8. Section 2(1)(e) of the Act defines “court” as the principal civil court of original jurisdiction competent to decide the questions forming the subject-matter of arbitration if it had been the subject of a suit. 9. When parties designate a particular place as the seat of arbitration, the courts of that place alone are vested with supervisory and territorial jurisdiction over the arbitral proceedings. 10. In Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Ors2, the Supreme Court observed that once a seat of arbitration is designated, the clause designating the seat of arbitration becomes an exclusive jurisdiction clause, as a result of which, only the courts within whose territorial limits, the seat is located would have jurisdiction to the exclusion of all other courts. 11. In M/S Swastik Gases Pvt. Ltd v. Indian Oil Corp. Ltd3, the Supreme Court held that where a contract confers jurisdiction upon the courts at a particular place, which otherwise also possess territorial competence, such stipulation must be interpreted as the parties’ conscious intention to exclude the jurisdiction of all other courts that might otherwise have been available under law. 12. The law, therefore, treats the designation of the seat and an exclusive jurisdiction clause as analogous in effect, both restrict jurisdiction to the courts chosen by the parties.