Point of law: Arbitral Award - Law permits a litigant to claim reliefs in alternative and merely because a relief claimed in the alternative has been granted cannot come in the way of impugning the denial of primary/first relief.

JUDGMENT :

RAJIV SAHAI ENDLAW, J.

1. This appeal, under Section 13(1A) of the Commercial Courts Act, 2015, impugning the orders dated 23rd December, 2019 and 13th March, 2020 of the Commercial Division of this Court in OMP(ENF.)(COMM) No.140/2019, and accompanied with applications for condonation of delay of 346 days in filing of the appeal and for stay of the impugned orders, came up before us for admission on 27th April, 2021, when finding the impugned orders to have been passed by only referring to Bhandari Engineers & Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture MANU/DE/4601/2019 and further being of the view that there was an inconsistency between Bhandari Engineers & Builders Pvt. Ltd. supra and M.L. Gupta Vs. Aerens Gold Souk International Ltd. 2018 SCC OnLine Del 7621, and being otherwise also of the opinion that the matter required consideration, leaving open the aspect of maintainability of the appeal, notice of the appeal and the applications was issued.

2. The senior counsel for the appellant no.1 Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and appellant no.2 Ameet Sharma, the counsel for the respondent no.1 Himgiri Realtors Pvt. Ltd. and the senior counsel for respondent no.2 Samir Dev Sharma, were heard on 25th May, 2021, on, the application for condonation of delay in preferring the appeal, maintainability of the appeal as well as on the merits of the appeal, and orders reserved.

3. As far as the delay in preferring the appeal is concerned, the appellants, in the application for condonation of delay, have attributed the same to (i) suspension of the period of limitation during the prevalent Covid-19 pandemic; and, (ii) the appellant no.2, who is the authorized signatory of the appellant no.1, being unwell and the old age of his mother.

4. The counsel for the respondent no.1, which is the only contesting respondent, to be fair to him, did not seriously contest the application for condonation of delay.

5. Owing to the Supreme Court, vide orders dated 23rd March, 2020 and 8th Match, 2021 in SMW(C) No. 3/2020 titled In Re: Cognizance for Extension of Limitation having suspended the period of limitation, CM No.11906/2021 for condonation of delay, though superfluous, is allowed and the appeal considered on merits.

6. CM No.11906/2021 is disposed of.

7. The respondent no.1 filed OMP (ENF.) (COMM.) No.140/2019 for execution of the arbitral award dated 11th March, 2019 as a decree of the Court, describing itself as the decree holder and the two appellants and the respondent no.2 as the judgment debtors, and pleading that a total amount of Rs.21,17,80,487/- was due as on 11th July, 2019, jointly and severally from the two appellants and the respondent no.2 [hereinafter together referred to as “judgment debtors”] to the respondent no.1 [hereinafter referred to as “decree holder”] under the award dated 11th March, 2019. In paragraph 10 of the Execution Petition [filed in the form prescribed in the Code of Civil Procedure, 1908 (CPC)], requiring the decree holder to state “In what manner court’s assistance is sought”, the decree holder pleaded, “By issuance of attachment warrant the Hon’ble court may be pleased to attach the movable and immovable properties of the judgment debtors in view of Order XXI of the CPC”. In paragraph 11 of the Execution Petition, requiring the decree holder to furnish “Any other information”, the decree holder pleaded, that (i) the judgment debtors had failed to make payment of the awarded amount to the decree holder; (ii) the decree was to be executed jointly and severally against the judgment debtors; and, (iii) “To the best of the knowledge of the decree holder, the judgment debtors have assets and properties, movable and immovable”. The decree holder, in the prayer paragraph of the Execution Petition, sought (a) a direction to the judgment debtors to pay to the decree holder the awarded amount with interest, in terms of the arbitral award dated 11th March, 2019; (b) to restrain the judgment d