STEEL AUTHORITY OF INDIA LIMITED vs M/S EASTERN MINERALS AND TRADING AGENCY

IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
RESERVED ON: 06.08.2026
DELIVERED ON: 07.09.2026
PRESENT:
THE HON’BLE MR. JUSTICE GAURANG KANTH
EC-COM 155 OF 2025
STEEL AUTHORITY OF INDIA LIMITED
VS
M/S EASTERN MINERALS AND TRADING AGENCY
Appearance: -
Mr. Rudraman Bhattacharya, Sr. Adv.
Ms. Supriya Dubey, Adv.
Mr. Akash Munshi, Adv.
………….. for the petitioner
Mr. Jishnu Saha, Sr. Adv.
Mr. Chayan Gupta, Adv.
Mr. Tanay Agarwal, Adv.
Mr. Chitresh Saraogi, Adv. ……….…for the respondent
JUDGMENT
Gaurang Kanth, J. :-
1. The present execution petition has been filed seeking implementation of
the impugned award dated 29.02.2008 passed by the learned sole
Arbitrator Shri. Shambhu Kumar, in the arbitration proceedings between
Eastern Minerals & Trading Agency and Steel Authority of India.
2. The decree holder, Steel Authority of India Limited, had entered into a
contract dated 06.04.1992 with the respondent for raising, seizing and
transportation of limestone at the Kuteshwar Limestone Mines, Madhya
Pradesh. On account of the respondent's failure to perform its obligations
under the said contract, the contract was terminated with effect from
05.09.1997, giving rise to disputes between the parties, which were
referred to arbitration. By the Award dated 29.02.2008 the learned

2
Arbitrator held the decree holder entitled to a sum of Rs. 5,51,98,684.13/-,
together with interest @ 18% per annum, compounded monthly.
3. The award debtor had filed an application under Section 34 of the
Arbitration and Conciliation Act, 1996, being A.P. No. 269 of 2008, for
setting aside the said Award. The said application came to be dismissed for
default on 28.8.2023, and a subsequent application for recall thereof was
also dismissed for default on 19.12.2023. Upon a further application filed
by the award debtor, A.P. No. 269 of 2008 has since been restored and is
stated to be pending. However, no order staying the operation of the Award
is presently in force.
4. In view thereof, the award holder preferred the present execution Petition
for the implementation of the arbitral award dated 29.02.2008.
5. At the outset, Mr. Jishnu Saha, learned Senior Counsel appearing for the
Award Debtor, challenged the maintainability of the present execution
petition on the ground that the same is barred by limitation.
Submissions on behalf of the award holder, with respect to the
maintainability of the present execution petition
6. Mr. Rudhaman Bhattacharya, learned counsel for the award holder
submits that the present execution petition is not barred by limitation and
is liable to be entertained.
7. Learned Senior counsel places reliance upon Section 36 of the Arbitration
and Conciliation Act, 1996 as it stood prior to its amendment in 2015, and
submits that under the said unamended provision, an arbitral award
became enforceable, and could be put into execution as if it were a decree
of the Court, only upon the expiry of the period prescribed for filing an
application under Section 34 without such application having been made,

3
or, where such an application had been made, upon its rejection. Learned
counsel submits that this position was recognised and given effect to by
the Supreme Court in National Aluminium Co. Ltd. v. Pressteel &
Fabrications (P) Ltd., reported as (2004) 1 SCC 540 , wherein it was held
that the mere filing of an application under Section 34 operated as an
automatic suspension of the execution of the award, leaving no discretion
with the Court to pass any interlocutory order in that regard, and that this
defeated the very object of the Act. Learned counsel submits that it was
precisely this mischief, as noticed in National Aluminium , which
(supra)
th
led the 246 Report of the Law Commission of India (August, 2014) to
recommend an amendment of Section 36, so that the mere filing of a
Section 34 application would no longer render an award unenforceable.
8. Learned Senior counsel submits that, pursuant to the said Report, Section
36 of the Act was amended with effect from 23.10.2015, doing away with
the automatic stay of an award upon filing of a Section 34 application, and
requiring the award debtor to make a separate application for stay of the
award, on such terms as the Court may impose. Learned counsel submits
that the amended Section 36, and its applicability even to Section 34
applications filed and pending prior to 23.10.2015, was considered and
upheld by the Supreme Court in BCCI v. Kochi Cricket (P) Ltd., reported
as (2018) 6 SCC 287, wherein it was held that Section 36, being
procedural in nature, would apply to all court proceedings initiated after
23.10.2015, regardless of when the underlying arbitral or Section 34
proceedings had commenced.
9. Learned Senior counsel for the award holder further submits that
thereafter, by the Arbitration and Conciliation (Amendment) Act, 2019,

4
Section 87 was introduced into the Act, seeking to restrict the applicability
of the 2015 Amendment only to arbitral and court proceedings commenced
on or after 23.10.2015, thereby seeking to restore, for all earlier
proceedings, the very automatic-stay regime that the 2015 Amendment
and Kochi Cricket (supra) had done away with. Learned counsel submits
that Section 87, together with the deletion of Section 26 of the 2015
Amendment Act, came to be struck down as unconstitutional and
manifestly arbitrary by the Supreme Court in Hindustan Construction
Co. Ltd. v. Union of India, reported as (2020) 17 SCC 339 . Learned
counsel draws attention to the finding of the Supreme Court therein that
the automatic-stay doctrine, as laid down in National Aluminium (supra)
and the decisions following it, was rendered per incuriam for not having
noticed Sections 9, 35 and the second part of Section 36 of the Act, and
did not state the law correctly; and that the amended Section 36, being
clarificatory in nature, merely restated the true position, namely, that the
unamended Section 36 never stood in the way of the law relating to the
grant of stay of a money decree under the Code of Civil Procedure.
10. In view of the aforesaid, learned counsel for the award holder submits that,
upon the striking down of Section 87 and the automatic-stay doctrine by
the Supreme Court in Hindustan Construction Co. Ltd. (supra) , the
position brought about by the 2015 Amendment stands restored and is
applicable to the present proceedings, and the award became enforceable,
and the period of limitation of twelve years for its execution under Article
136 of the Limitation Act, 1963 began to run, with effect from 23.10.2015,
being the date on which the 2015 Amendment to Section 36 came into
force. Learned counsel submits that, computed from the said date, the

5
present execution petition, having been filed well within twelve years
therefrom, is not barred by limitation.
Submissions on behalf of the Award Debtor w.r.t maintainability of the
present execution petition.
11. Mr. Jishnu Saha, learned Senior Counsel for the award debtor submits
that the present execution petition is barred by limitation and is liable to
be dismissed on that ground alone.
12. Learned Senior Counsel submits that the Award in question was made and
published on 29.02.2008, and that the present execution petition has been
filed after a gap of approximately seventeen years therefrom. Learned
Senior counsel submits that, under Article 136 of the Limitation Act, 1963,
the period of limitation for execution of a decree is twelve years, and that
even allowing for the pendency of the application under Section 34 of the
Arbitration and Conciliation Act, 1996, the said period stands long expired.
13. Learned counsel places reliance upon the judgment of this Court in
Goutam Paul v. Union of India, AO-COM/60/2025 , decided on
12.02.2026, wherein, on materially identical facts, an award of 2009, a
Section 34 application filed shortly thereafter, and an execution petition
filed after a gap exceeding twelve years from the date of the award, Division
Bench of this Court has authoritatively held that the execution petition
was barred by limitation, computed from the date of the award itself.
Learned counsel submits that the Division Bench, after considering the
very submissions now sought to be advanced by the award holder, and
after extracting paragraphs 38 and 41 of Hindustan Construction Co.
Ltd. (Supra) , held in terms that the doctrine of automatic stay, as laid
down in National Aluminium Co. Ltd. (supra) and the decisions following

6
it, was per incuriam and did not state the law correctly, and that this
position obtained even under Section 36 as originally enacted, and was not
a consequence introduced only by the 2015 Amendment. Learned counsel
submits that it necessarily follows, and was so held by the Division Bench,
that an award holder was never, at any point of time, prevented by
operation of law from putting the award into execution merely on account
of the pendency of a Section 34 application, and that the plea of automatic
stay is accordingly no answer to the running of limitation.
14. Learned Senior counsel further submits that the Division Bench, at
paragraph 16 of Goutam Paul (supra) , rejected the very contention that is
sought to be raised in the present proceedings, holding the same to be
foreclosed by the binding precedent of Hindustan Construction Co. Ltd.
(supra) , and further observing that no explanation had been furnished for
the delay in initiating execution even after the said judgment was rendered
in the year 2020. Learned counsel submits that this Court is similarly
placed in the present case, inasmuch as the award holder has offered no
explanation for its failure to initiate execution proceedings at any time
between the date of the Award and the filing of the present petition.
15. Learned Senior counsel submits that the reasoning in Goutam Paul
(supra) constitutes a considered pronouncement of a Division Bench of this
Hon'ble Court, rendered after full consideration of National Aluminium
Co. Ltd., National Buildings Construction Corp. Ltd., Fiza Developers
& Inter-Trade (P) Ltd., BCCI v. Kochi Cricket (P) Ltd., and Hindustan
Construction Co. Ltd. (all supra) , and is directly applicable to, and
dispositive of, the question of limitation arising in the present proceedings.
Learned counsel accordingly submits that the present execution petition,

7
having been filed more than twelve years after the date of the Award, is
barred by limitation under Article 136 of the Limitation Act, 1963, and is
liable to be dismissed as such.
Legal Analysis
16. This Court has heard learned counsel for the parties and considered the
submission of the parties the precedents cited and the provisions placed
on record.
17. The question for determination is the point from which the period of twelve
years prescribed under Article 136 of the Limitation Act, 1963 begins to
run for the execution of an award made in 2008, where the application
under Section 34 of the Arbitration and Conciliation Act, 1996 challenging
the award was filed prior to the Arbitration and Conciliation (Amendment)
Act, 2015 and remains pending.
18. To answer this question, it is necessary, at the outset, for this Court to
trace the legal history surrounding the issue in some detail.
19. Section 36 of the Act of 1996, as it originally stood, read as follows:
"36. Enforcement: -Where the time for making an application to
set aside the arbitral award under Section 34 has expired, or
such application having been made, it has been refused, the
award shall be enforced under the Code of Civil Procedure,
1908 (5 of 1908) in the same manner as if it were a decree of
the Court."
20. On a plain reading, this provision creates a two limb conditionality: an
award becomes enforceable, and executable as a decree, only upon (i) an
expiry of the time prescribed for filing an (Section 34) application under
Section 34 without such application having been made, or (ii) where such
application is made, upon its refusal.
21. This provision was construed by the Supreme Court in National
Aluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd., reported as

8
(2004) 1 SCC 540 as producing an automatic suspension of the award
upon the mere filing of a Section 34 application, without reference to its
merits and without any discretion in the Court to order otherwise. This
construction was followed in National Buildings Construction Corpn.
Ltd. v. Lloyds Insulation (India) Ltd. , reported as (2005) 2 SCC 367 and
Fiza Developers and Inter-Trade (P) Ltd. v. AMCI (India) Pvt. Ltd. ,
reported as (2009) 17 SCC 796 , and remained binding law throughout the
period with which this Court is presently concerned.
22. This position was noticed by the 246th Report of the Law Commission of
India (August, 2014), which observed that the automatic suspension of an
award upon the mere filing of a Section 34 application "virtually paralyses
the process for the winning party/award creditor ," and recommended
amendment of Section 36 so that the award would not become
unenforceable merely upon the making of an application under Section 34.
23. Pursuant to the said recommendation, Section 36 was substituted by the
Arbitration and Conciliation (Amendment) Act, 2015, with effect from
23.10.2015, to read as follows:
"36. Enforcement. -(1) Where the time for making an application
to set aside the arbitral award under Section 34 has expired,
then, subject to the provisions of sub-section (2), such award
shall be enforced in accordance with the provisions of the Code
of Civil Procedure, 1908 (5 of 1908), in the same manner as if it
were a decree of the court.
(2) Where an application to set aside the arbitral award has
been filed in the Court under Section 34, the filing of such an
application shall not by itself render that award unenforceable,
unless the Court grants an order of stay of the operation of the
said arbitral award in accordance with the provisions of sub-
section (3), on a separate application made for that purpose.
(3) Upon filing of an application under sub-section (2) for stay of
the operation of the arbitral award, the Court may, subject to
such conditions as it may deem fit, grant stay of the operation
of such award for reasons to be recorded in writing..."

9
24. Section 26 of the 2015 Amendment Act, being the transitional provision,
provided that nothing contained in the Amendment Act would apply to
"arbitral proceedings" commenced before 23.10.2015, unless the parties
otherwise agreed, but that the Amendment Act would apply to arbitral
proceedings commenced on or after that date. It is to be noted that Section
26 speaks only of arbitral proceedings, and is silent as to court
proceedings, namely, applications under Section 34 and Section 36,
arising from such arbitral proceedings.
25. The question whether amended Section 36 would apply to Section 34
applications filed and pending before 23.10.2015, came to be
authoritatively settled by the Supreme Court in Kochi Cricket (supra) .
The Supreme Court held that Section 26 bifurcates proceedings into two
categories, arbitral proceedings themselves, and court proceedings in
relation thereto, and that the bar contained in the first part of Section 26
applies only to arbitral proceedings and not to court proceedings. The
Supreme Court held:
" Section 26, therefore, bifurcates proceedings, as has been
stated above, with a great degree of clarity, into two sets of
proceedings, arbitral proceedings themselves, and court
proceedings in relation thereto. The scheme of Section 26 is
thus clear: that the Amendment Act is prospective in nature,
and will apply to those arbitral proceedings that are
commenced, as understood by Section 21 of the principal Act,
on or after the Amendment Act, and to court proceedings which
have commenced on or after the Amendment Act came into
force."
26. Since amended Section 36 governs the manner and conditions of
enforcement of an award before a court, since a matter of procedure, and
not a substantive right of parties inter se in the arbitration, the Hon’ble
Supreme Court held that it would apply to all court proceedings, including
Section 34 applications, pending as on 23.10.2015, irrespective of whether

10
the underlying arbitral proceedings or the Section 34 application itself had
commenced before that date. This is what may be termed the retroactive
operation given to amended Section 36 by judicial construction, it is not a
retrospectivity created by the text of the 2015 Amendment Act itself, which
nowhere states that Section 36 shall apply to pending court proceedings; it
is a construction placed upon Section 26's silence regarding court
proceedings, holding that a procedural amendment, absent an express
restriction, applies to all proceedings pending before a court from the date
it comes into force.
27. By the Arbitration and Conciliation (Amendment) Act, 2019, Section 87 was
introduced into the Act with effect from the date of assent, reading as
follows:
"87. Effect of arbitral and related court proceedings commenced
prior to 23.10.2015, Unless the parties otherwise agree, the
amendments made to this Act by the Arbitration and
Conciliation (Amendment) Act, 2015 (3 of 2016) shall—
(a) not apply to—
(i) arbitral proceedings commenced before the commencement of
the Arbitration and Conciliation (Amendment) Act, 2015 (3 of
2016);
(ii) court proceedings arising out of or in relation to such arbitral
proceedings irrespective of whether such court proceedings are
commenced prior to or after the commencement of the
Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016);
(b) apply only to arbitral proceedings commenced on or after the
commencement of the Arbitration and Conciliation (Amendment)
Act, 2015 (3 of 2016) and to court proceedings arising out of or
in relation to such arbitral proceedings."
28. Section 15 of the 2019 Amendment Act simultaneously omitted Section 26
of the 2015 Amendment Act, with retrospective effect from 23.10.2015.
The combined effect of Section 87(a)(ii) was to expressly extend the pre-
2015 automatic-stay regime to all court proceedings arising from pre-2015

11
arbitral proceedings, irrespective of when such court proceedings were
themselves filed, thereby legislatively reversing the position settled in
Kochi Cricket (supra) , and reviving, for such proceedings, the very
automatic stay doctrine that the 2015 Amendment had been enacted to
remove.
29. Section 87, together with the deletion of Section 26, came to be challenged,
and were struck down as unconstitutional and manifestly arbitrary under
Article 14 of the Constitution, by the Supreme Court in Hindustan
Construction Co. Ltd. . The Hon’ble Supreme Court held, at para
(supra)
38 thereof, that the automatic stay doctrine as laid down in National
Aluminium (supra) and the decisions following it was per in curiam and
did not correctly state the law even under the unamended Act:
"38. Thus, the reasoning of the judgments in NALCOS, and Fiza
Developers & Inter-Trade (P) Ltd. being per incuriam in not
noticing Sections 9, 35 and the second part of Section 36 of the
Arbitration Act, 1996, do not commend themselves to us and do
not state the law correctly... Thus, it is clear that the automatic
stay of an award, as laid down by these decisions, is incorrect.
The resultant position is that Section 36 even as originally
enacted is not meant to do away with Article 36(2) of the
UNCITRAL Model Law, but is really meant to do away with the
two bites at the cherry doctrine in the context of awards made
in India, and the fact that enforcement of a final award, when
read with Section 35, is to be under the CPC, treating the
award as if it were a decree of the court."
And further, at para 41:
"41. Given the fact that we have declared that the judgments in
NALCO, National Buildings Construction Corpn. Ltd. and Fiza
Developers have laid down the law incorrectly, it is also clear
that the amended Section 36, being clarificatory in nature,
merely restates the position that the unamended Section 36
does not stand in the way of the law as to grant of stay of a
money decree under the provisions of the CPC."
30. The Hon’ble Supreme Court further held that Section 87 was manifestly
arbitrary precisely because it reintroduced the mischief of automatic stay
th
that the 2015 Amendment, following the 246 Law Commission Report,

12
had been specifically designed to remove, without any rational justification
for doing so, and struck down Section 87 and the deletion of Section 26 in
their entirety, holding at para 66 that "Kochi Cricket judgment will therefore
continue to apply so as to make applicable the salutary amendments made
by the 2015 Amendment Act to all court proceedings initiated after 23-10-
2015. "
31. The effect of the striking down of Section 87 is that the field reverts to the
position as settled by Kochi Cricket (supra), namely, that the amended
Section 36 governs all court proceedings, including Section 34 applications
and Section 36 execution petitions, pending or instituted on or after
23.10.2015, irrespective of whether the underlying arbitral proceedings, the
award, or the Section 34 application itself, predate that date. It is only
arbitral proceedings properly so called, the reference, pleadings and
hearing before, and the making of the award by, the arbitrator, that
continue, under the unstruck first part of Section 26, to be governed by the
law as it stood at their commencement, where such commencement
predates 23.10.2015.
32. This being the legal history surrounding the issue in hand, two distinct
questions arise on this record, and it is necessary to keep them apart. The
first is whether the mere filing of the Section 34 application operated, in
law, as an automatic stay of the Award. The first question stands
conclusively answered in the negative by Hindustan Construction ( supra ),
and this Court respectfully proceeds on that footing, as did the Division
Bench of this Court in Goutam Paul (supra) . The second, and analytically
separate, question is when the Award "became enforceable" within the
meaning of Article 136, that is, the date from which the Award-holder could,

13
in fact and in law, have sought and obtained execution. The first question
asks what the law, correctly understood with the benefit of Hindustan
Construction (supra) , has always been. The second asks what remedy was
actually and practically available to a litigant standing in 2008, in 2012, or
in 2015, before Hindustan Construction (supra) was decided in 2020.
These are not the same inquiry, and an answer to the first does not,
without more, supply the answer to the second.
33. The period from 23.10.2015 the position follows directly from Kochi
Cricket and requires no reliance on the retrospective effect of
(supra)
Hindustan Construction (supra) . The substituted Section 36(2) applies to
the present proceeding, which was pending on 23.10.2015. It expressly
provides that the pendency of the Section 34 application does not, by itself,
render the Award unenforceable, and that enforcement could be resisted
only upon a specific order of stay obtained on a separate application. No
such order has been shown to have been sought or granted at any stage.
Applying Section 36(2), as construed in Kochi Cricket (supra) , on its own
terms, the Award was capable of enforcement, in the sense relevant to
Article 136, with effect from 23.10.2015.
34. During the period 29.02.2008 to 22.10.2015, National Aluminium ( supra )
and the decisions following it were binding on every court in India by virtue
of Article 141 of the Constitution. An execution petition filed by the Award-
holder at any point during this period would, applying the law as it then
bound every court to apply it, have been met with the automatic bar
recognised in that line of authority. That Hindustan Construction (supra)
subsequently held this line of authority to be per incuriam does not alter
what relief any court in the country would, as a matter of fact, have granted

14
or withheld from this Award-holder had it approached the court between
2008 and 2015. A declaration of per incuriam corrects the law for the future
and for pending matters; it does not retrospectively revive a remedy that
was already foreclosed at the relevant time.
35. This distinction is material because Article 136 does not run from the bare
date of the decree or award, but from the date the decree or order "becomes
enforceable ." The Supreme Court's construction of this expression in Deep
Chand v. Mohan Lal , reported as (2000) 6 SCC 259, Akkayanaicker v.
A.A.A. Kotchadainaidu , reported as (2004) 12 SCC 469, and Hameed
Joharan v. Abdul Salam, reported as (2001) 7 SCC 573 establishes that
the starting point of limitation is the date on which the decree holder could,
in fact and in law, act upon the decree to enforce it, and not invariably the
date of the decree itself. Those cases concerned impediments arising from
the terms of the decree; the impediment here arose from a binding and
uniformly applied rule of law external to the Award. Its practical effect,
however, the complete unavailability of execution, was, if anything, more
absolute, since no court retained any discretion to entertain execution
during this period. The principle that lex non cogit ad impossibilia (the law
does not exact the impossible) applies with corresponding force: a period
during which the remedy of execution stood judicially foreclosed to every
litigant similarly placed cannot be counted against this Award-holder in
computing when the Award became enforceable.
36. The same conclusion also finds support, by analogy, in Section 15(1) of the
Limitation Act, 1963, which provides for exclusion of the period during
which execution of a decree is stayed by an injunction or order. The
underlying principle is that a period during which enforcement of an

15
adjudicated right is legally unavailable ought not to operate to the prejudice
of the person seeking execution. In the present case, the Award-holder was,
during the period from 29.02.2008 to 22.10.2015, confronted with a
binding judicial regime under which execution upon the pendency of a
Section 34 proceeding was not available in practice. Although Hindustan
Construction ( supra ) subsequently declared that such automatic stay was
not the correct interpretation of the unamended Section 36, that
subsequent declaration cannot retrospectively convert a remedy which was
judicially foreclosed during the said period into one which was then
practically available. The period during which execution was so foreclosed
must, therefore, be excluded in determining when the Award became
enforceable for the purposes of Article 136.
37. This construction is reinforced by the purpose the 2015 Amendment was
enacted to serve. The 246th Report of the Law Commission of India (August
2014) recorded that the automatic-stay position then prevailing "virtually
paralyzed the process for the winning party/award creditor." To hold that
limitation ran uninterrupted through the very period in which the award-
holder's remedy stood paralysed by binding authority would allow the
mischief the Amendment was designed to cure to operate as an
independent and permanent bar to the Award, notwithstanding the cure. It
would further mean that a Section 34 application, whatever its ultimate
merit, could be used to defeat an Award by mere attrition, an incentive to
prolong rather than resolve challenges under Section 34 that this Court
declines to read into Article 136 where its language does not compel it.
38. The consequences of declining to adopt this construction merit specific
notice. If limitation under Article 136 were held to run from the date of the

16
Award itself, an Award made in 2008 would stand time-barred, irrespective
of outcome, from 2020 onward, that is, five years before the very statutory
regime under which the present proceeding is being adjudicated came into
force, and while the challenge to the Award under Section 34 was itself still
pending and undecided. On such a construction, even if the Section 34
application were today to be dismissed and the Award upheld in its entirety,
attaining finality on merits, the Award-holder would nonetheless be left
without any means of enforcing it, not because of any infirmity in the
Award, not because of any default or delay on the Award-holder's part in
prosecuting execution once the remedy became available, but solely
because the challenge to the Award took longer than twelve years to be
finally decided, a circumstance ordinarily outside the Award-holder's
control and, on the facts of this case, substantially attributable to defaults
on the part of the Award Debtor itself. Such a result would mean that the
more completely an Award is vindicated on a belated Section 34 challenge,
the less capable it becomes of being given effect to. That cannot have been
intended either by Parliament, which conceived of Sections 34 and 36 as a
coherent scheme for testing and thereafter enforcing an award, or by the
Supreme Court in any of the decisions considered above, none of which
contemplated or sanctioned an outcome where a challenge under Section
34 could be used, regardless of its merit, to defeat the Award through the
mere passage of time.
39. Such a construction would also sit uneasily with the underlying purpose of
the law of limitation itself. Limitation statutes are intended to compel
diligence and to bar stale claims, not to extinguish rights that a party has
been actively, and ultimately successfully, pursuing through the very forum

17
the statute contemplates. Where a party has kept its dispute alive by
prosecuting a live judicial proceeding, the law of limitation is not ordinarily
construed to visit that party with forfeiture of the fruits of that very
proceeding. It is well settled that where two constructions of a statutory
provision are reasonably open, a court will lean against the one which
produces a result that is unjust, anomalous, or defeats the object that the
statute, read as a whole, seeks to achieve; a construction that leaves a
wholly successful litigant without a remedy, through no fault of its own,
falls squarely within this principle. Law exists as an instrument to secure
justice between parties, and not merely to be applied mechanically to defeat
it; a reading of Article 136 that permits limitation to run out silently while
the very adjudication on which enforcement depends remains sub judice ,
and that penalises the ultimately successful party for delay caused by the
conduct of the other side, would subordinate that end to a rigid and
formalistic application of the provision. For the reasons set out above, such
a construction is not the only one open on the language of Article 136, and
this Court declines to adopt it.
40. Learned Senior Counsel for the Award Debtor relied upon Goutam Paul
( supra ), in which a Division Bench of this Court, on facts stated to be
materially similar, held that limitation ran from the date of the award. On
the submissions recorded before this Court, the Division Bench in Goutam
Paul (supra) was addressed on, and rejected, the contention that the
pendency of a Section 34 application operated as an automatic stay, a
contention squarely foreclosed by Hindustan Construction (supra) and
also had regard to the Award-holder's own conduct in that case, including
the absence of any explanation for delay in initiating execution even after

18
Hindustan Construction ( supra ) was decided in 2020. Nothing in the
record of Goutam Paul (supra) as placed before this Court indicates that
the Division Bench was addressed on, or decided, the distinct contention
advanced in the present proceeding: that the functional unavailability of
execution during 2008–2015, by reason of binding contrary authority
subsequently found to be per incuriam , itself postpones the date on which
the Award "became enforceable" for the purposes of Article 136,
independently of whether an automatic stay existed in strict law. It is well
settled that a judgment is not authority for a proposition it was not called
upon to decide ( Municipal Corporation of Delhi v. Gurnam Kaur ,
reported as (1989) 1 SCC 101 ). This Court, accordingly, respectfully finds
itself not bound by Goutam Paul (supra) on the specific question presented
here, without expressing any view of disagreement with what the Division
Bench in fact decided on the submissions before it. This Court is not
unmindful that Goutam Paul (supra) is stated to be under challenge before
the Hon'ble Supreme Court in Special Leave Petition (C) No. 13785/2026.
41. This Court is conscious that considerations of hardship do not ordinarily
override the plain language of a limitation statute, which is intended to
secure repose and finality. That principle, however, presupposes that the
party against whom limitation is invoked had, throughout the relevant
period, an effective remedy available to it, but failed to pursue the same.
Where, as here, the remedy itself stood foreclosed by binding judicial
authority for the greater part of the period sought to be counted, this is not
a case of the Award-holder having slept over its rights; it is a case of the
law, as it then stood, having closed the door. To fault the Award-holder for

19
not executing the Award between 2008 and 2015 is to fault it for not
defying binding precedent.
42. For the aforesaid reasons with effect from 23.10.2015, the Award was
enforceable under Section 36(2) as construed in Kochi Cricket (supra). T he
period from 29.02.2008 to 22.10.2015 stands excluded in computing when
the Award "became enforceable" for the purposes of Article 136, on the
ground that execution stood judicially foreclosed to the Award-holder
throughout that period by binding authority later held to be per incuriam .
The Award is accordingly to be treated, for the purposes of Article 136, as
having become enforceable on 23.10.2015. The twelve-year period
prescribed under Article 136 accordingly commenced on 23.10.2015 and
would ordinarily expire on 23.10.2027. The present execution petition,
having been filed before expiry of the said period, is not barred by limitation.
The objection raised on behalf of the Award Debtor is accordingly rejected.
43. Since EC (Com)/155/2025 is maintainable the Award debtor is
directed to file its affidavit of asset with in a period of four weeks.
44. List the EC (Com)/155/2025 after five weeks.
(GAURANG KANTH, J.)
SAKIL AMED (P.A)