No appeal lies against Master's order in execution of arbitral award in commercial disputes; treated as Commercial Division order, restricted by Arbitration Act Section 5 and Commercial Courts Act Section 13(1-A).

JUDGMENT :

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