Execution Case No. 24 of 2019 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 W.P.(C) No.26628 of 2024 (In the matter of an application under Articles 226 and 227of the Constitution of India, 1950). M/s. S.K. Cattle and Poultry Feeds, Nabarangapur. …. -versus- Petitioner(s) M/S. Japfa Comfeed India Private Ltd., Pune …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. D.R. Bhokta, Adv. Mr. Haripad Mahanty, Adv. CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING:-04.08.2025 DATE OF JUDGMENT:-17.10.2025 Dr. Sanjeeb K Panigrahi, J. 1. The present Writ Petition has been preferred challenging the entire proceeding in Execution Case No.24 of 2019 pending in the Court of the Learned District Judge, Nabarangpur which arises out of Arbitration award dated 31.8.2013 passed by Learned Sole Arbitrator, Sri S.B. Panse. I. FACTUAL MATRIX OF THE CASE: 2. The present Opposite Party is in the business of manufacturing and supply of animal feeds. The present Petitioner had a processing unit Page 1 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 and entered into a Storage Agreement dated 1.9.2008 with the Opposite Party for processing of the Opposite Party’s products. 3. As per the terms of the Agreement, the Opposite Party was to supply raw materials and packing material to the present Petitioner. Thereafter, the Petitioner was under the obligation to exclusively process the products of the Opposite Party and maintain inventory. 4. Allegedly, after April, 2009 disputes arose between the Parties due to stoppage of production and consequently, the present Opposite Party terminated the Agreement on 2.5.2009. This is where the dispute arose. 5. The matter was referred to the Ld. Sole Arbitrator. The present Opposite Party claimed a total of Rs.12,91,153.66/- with 18% interest p.a.. The arbitration process culminated in Arbitration award dated 31.8.2013 passed by Ld. Sole Arbitrator. Due to non-representation of the present Petitioner, the arbitration was set ex-parte and Ld. Sole Arbitrator was pleased to allow the claims of the present Opposite Party in its entirety along with Arbitrator fees of Rs.2,00,000/- and Rs.1,000/- towards incidental expenses. 6. The present Petitioner alleges that though the award was passed in 2013, the same was never communicated to her and the petitioner had no knowledge of the same till notice in the Execution Proceeding was issued and delivered to her. Aggrieved, the present Writ Petition has been filed. 7. Now that the facts leading up to the instant Petition has been laid
Legal Reasoning
down, this Court shall endeavour to summarise the contentions of the Parties and the broad grounds that have been raised. Page 2 of 21 II. PETITIONER’S SUBMISSIONS: 8. The Learned Counsel for the Petitioner contends that the said award Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 was passed without her knowledge or participation, as she was never properly served with notice of the arbitral proceedings and was not supplied a copy of the final award. She claims that she only came to know about the existence of the award in September 2024 upon receiving notice in the execution case. The petitioner further asserts that the execution proceedings are therefore illegal, arbitrary, and without jurisdiction, as they are based on an award that was never communicated to her, depriving her of the opportunity to challenge it before the competent court within the statutory time period under Section 34 of the Arbitration and Conciliation Act, 1996. 9. The petitioner further argues that the execution petition filed in 2019 suffers from gross delay, being instituted nearly six years after the award without any petition for condonation of delay. He further contends that such delayed initiation of arbitration proceedings violates the principles of limitation and fairness. Moreover, while the award amount determined by the arbitrator was Rs.12,91,153.66/-, the Opposite Party has now sought for attachment proceedings for an inflated amount of Rs.47,45,003/-, which the petitioner terms as unjust, excessive, and unlawful. She submits that the executing court failed to appreciate that the award was ex parte, never communicated, and therefore unenforceable in law. The petitioner also asserts that the Arbitrator’s proceedings were conducted outside Odisha, making her physical participation impractical. In the absence of any other adequate remedy, she invokes the extraordinary writ jurisdiction of Page 3 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 this Court to quash the execution proceedings as void ab initio, to prevent coercive recovery and to protect her constitutional and procedural rights from irreversible prejudice. III. OPPOSITE PARTY’S SUBMISSIONS: 10. Per contra, the Learned Counsel for the Opposite Party contends that the writ petition filed by M/s S.K. Cattle and Poultry Feeds is not maintainable under Article 226 of the Constitution. It argues that the petition raises disputed questions of fact, which cannot be adjudicated in writ jurisdiction. Further, an effective alternative remedy was available to the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 for challenging the arbitral award, which she chose not to avail. Ld. Counsel recounts that, after receipt of notice from the learned arbitrator, the petitioner’s husband sent a letter claiming that his wife, Mrs. Mamata Padhy, was mentally ill and unable to participate. The arbitrator, after directing submission of medical proof, received no compliance. Consequently, the present Petitioner was set ex parte, and the arbitration proceeded lawfully, resulting in the award dated 31.8.2013. Therefore, the Opposite Party asserts that due process was followed and the award cannot now be challenged collaterally through a writ petition. 11. The Opposite Party further submits that the execution petition (No. 24/2019) filed before the District Judge, Nabarangpur, is within the limitation period prescribed under Section 36 of the Arbitration Act and Article 136 of the Limitation Act, 1963, which allows twelve years for execution of a decree. Since the arbitral award has attained finality, any grievance regarding procedure or venue should have Page 4 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 been raised earlier under Section 34, not during execution. Hence, it is submitted that the writ petition, being misconceived, belated, and devoid of merit, should be dismissed in limine. IV. ISSUE FOR CONSIDERATION 12. Having heard the parties and perused the materials available on record, this Court has identified the following solitary issue to be determined: A. Whether the impugned orders passed by the Ld. Executing Court warrant any interference? V. ISSUE A: WHETHER THE IMPUGNED ORDERS PASSED BY THE LD. EXECUTING COURT WARRANT ANY INTERFERENCE? 13. The law is well settled that Arbitral Tribunals are a species of tribunals over which the High Court exercises writ jurisdiction. Challenge to an order of an arbitral tribunal can be raised by way of a writ petition. In Union of India v. R. Gandhi, President Madras Bar Association1 the Supreme Court observed on the question as to what constitutes ‘Courts’ and ‘Tribunals’ as under: “38. The term ‘Courts’ refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes. Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law. Courts refer to Civil Courts, Criminal Courts and High 1(2010) 11 SCC 1 Page 5 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 Courts. Tribunals can be either private Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution (Administrative Tribunals under Article 323A and Tribunals for other matters under Article 323B) or Statutory Tribunals which are created under a statute (Motor Accident Claims Tribunal, Debt Recovery Tribunals and consumer fora). Some Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals). Other statutory Tribunals have Judicial and Technical Members (Administrative Tribunals, TDSAT, Competition Appellate Tribunal, Consumer fora, Cyber Appellate Tribunal, etc).” 14. Similar observations were made by the Supreme Court in SREI Infrastructure Finance Limited2as under: are tribunals regulated. The “14. Arbitration is a quasi judicial proceeding, equitable in nature or character which differs from a litigation in a Court. The power and functions of arbitral tribunal are statutorily special arbitration with institutional mechanism brought into existence by or under statute to decide dispute arising with reference to that particular statute or to determine controversy referred to it. The tribunal may be a statutory tribunal or tribunal constituted under the provisions of the Constitution of India. Section 9 of the into the Civil Court Civil Procedure Code vests jurisdiction to entertain and determine any civil dispute. The constitution of tribunals has been with intent and purpose to take out different categories of litigation into the special tribunal for speedy and effective determination of disputes in the interest of the society. Whenever, by a legislative enactment jurisdiction exercised by ordinary 2 (2018) 11 SCC. 470 Page 6 of 21 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Oct-2025 15:32:00 civil court is transferred or entrusted to tribunals such tribunals are entrusted with statutory power. The arbitral tribunals in the statute of 1996 are no different, they decide the lis between the parties, follows Rules and procedure conforming to the principle of natural justice, the adjudication has finality subject to remedy provided under the 1996 Act. Section 8 of the 1996 Act obliges a judicial authority in a matter which is a subject of an agreement to refer the parties to arbitration. The reference to arbitral tribunal thus can be made by judicial authority or an arbitrator can be appointed in accordance with the arbitration agreement under Section 11 of the 1996 Act.” 15. Thus, the Apex Court has also held that arbitral tribunals are private tribunals unlike those tribunals set up under the statute or specialized tribunals under the Constitution of India. Thus, a Petition under Article 227 challenging orders of an Arbitral Tribunal would be maintainable. 16. Coming to the question as to what would be the scope of interference under Article 226/227 against orders passed by the Arbitral Tribunals, though, a number of judgments have been cited by both parties, recent decisions of the Supreme Court and of this Court have settled the issue. 17. While there is no doubt that the arbitral tribunal is a tribunal over which writ jurisdiction can be exercised, the said interference by a writ court is limited in nature. Recently, in Deep Industries Ltd. v. ONGC Ltd.3 decided on 28th November, 2019, the Supreme Court considered S.B.P. & Company v. Patel Engineering Ltd.4 and Fuerst