A memorandum of settlement does not attain finality and is not executable as an award under the Arbitration Act; therefore, an appeal against a refusal to execute such an award is not maintainable under the Commercial Courts Act.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appellants have assailed the judgment and order dated May 20, 2025 passed in EC-COM/9/2025 with IA No. GA-COM/1/2025.

2. By the impugned judgment and order, learned Single Judge has dismissed an execution petition by which the appellant sought to execute a memorandum of settlement arrived at between the parties as an award.

3. Learned advocate appearing for the appellants has submitted that, the parties to the appeal entered into an understanding to settle their disputes and differences. The parties to the appeal had entered into an memorandum of settlement dated September 10, 2024 settling their disputes by way of conciliation.

4. Learned advocate for the appellants has submitted that, the memorandum of settlement dated September 10, 2024 partakes the character of an award in terms of the Arbitration and Conciliation Act, 1996. He has referred to the various provisions of the Act of 1996 and contended that, since, the parties agreed to settle their disputes by way of conciliation, and entered into the settlement in writing, the same can be executed as an award.

5. Learned advocate appearing for the appellants has contended that, since, the memorandum of settlement dated September 10, 2024 is an award within the meaning of the Act of 1996, the same is executable. The appellants therefore had put the same into execution on the respondents failing to adhere and comply with the memorandum of settlement dated September 10, 2024.

6. Learned advocate appearing for the appellants has contended that, by the impugned judgment and order learned Single Judge has held that the memorandum of settlement dated September 10, 2024 cannot be enforced by the executing Court under Section 36 of the Act of 1996. He has submitted that, the learned executing Court in effect set aside an award within the meaning of the Act of 1996. According to him, since, the learned executing Court has refused to execute the memorandum of settlement dated September 10, 2024 as an award, the same tantamounts to setting aside of an award. Consequently, the provisions of Section 34 of the Act of 1996 and Section 37 thereof stands attracted. Therefore, according to him, under the provisions of Section 13 of the Commercial Courts Act, the present appeal is maintainable.

7. Learned advocate appearing for the appellants has relied upon 2021 SCC Online Cal 3065 ( Damodar Valley Corporation vs. Reliance Infrastructure Ltd. ), order dated July 8, 2024 passed in APOT 244 of 2024 (R. Piyarelall Iron & Steel Pvt. Ltd. vs. Ram Prasad Agarwala & Ors.) and 2024 SCC OnLine Cal 8835 (Kolkata Metropolitan Development Authority vs. Dagcon (India) Pvt. Ltd.) in support of the contention that the appeal is maintainable.

8. Learned Senior Advocate appearing for the respondents has contended that, the appeal is not maintainable in view with the provisions of Section 13 of the Commercial Courts Act, 2015. According to him, the learned executing Court did not set aside the award and could not have done so as an executing Court. Therefore, the provisions of Section 34 and 37 of the Act of 2026 have no manner of application. He has contended that, the learned executing Court has passed the impugned judgment and order on an execution petition and not on a petition under of the Act of 1996.

9. With regard to the maintainability of the appeal, learned Senior Advocate appearing for the respondents has relied upon 2018