South Delhi Municipal Corporation vs M/S Delhi Gurgaon Super Connectivity Limited Dgscl
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 14.05.2026
Judgment pronounced on: 01.07.2026
+ EX.P. 23/2017 & EX.APPL.(OS) 203/2018 (Objections on
behalf of the judgment debtor to the execution petition filed by
the decree holder)
SOUTH DELHI MUNICIPAL CORPORATION
.....Decree Holder
Through: Mr. Rakesh Mittal, Ms. Yamini
Mittal and Mr. Ajay Harshana,
Advocates.
versus
M/S DELHI GURGAON SUPER CONNECTIVITY LIMITED
DGSCL .....Judgement Debtor
Through: Mr. Dayan Krishnan, Senior
Advocate with Mr. Deepak
Khurana, Mr. Vineet Tayal &
Mr. Anurag Vats, Advocates.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
HARISH VAIDYANATHAN SHANKAR, J.
1. The present Execution Petition, stated to have been filed under
1
Part II of the Code of Civil Procedure, 1908 , seeks execution of the
2
Consent Order dated 15.03.2012 passed by this Court in O.M.P.
1
CPC
2
Consent Order
`
Signature Not Verified
EX.P. 23/2017 Page 1 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
3
No. 408/2011 , read along with the Report dated 03.03.2014
4
submitted by the Board constituted pursuant thereto .
2. By way of this Petition, the Decree Holder seeks enforcement
of the said Consent Order and the Board's Report and has, inter alia ,
prayed for attachment and sale of the movable and immovable
properties of the Judgment Debtor for recovery of a sum of Rs.
15,73,95,405/-, along with pendente lite and future interest at the rate
of 18% per annum until actual realization; grant of police assistance
for effective execution of the Order; and arrest and detention of the
Managing Director, Directors, employees, agents, or any other persons
acting on behalf of the Judgment Debtor in the event they obstruct or
interfere with the execution proceedings.
3. The Judgment Debtor has filed detailed objections to the
maintainability of the present Execution Petition. It has been
contended that the Petition is fundamentally misconceived, as neither
the Consent Order nor the Board's Report constitutes a decree, arbitral
award, or any other executable instrument recognized in law. In
support of this contention, the Judgment Debtor has raised several
legal as well as factual objections.
4. In light of the rival submissions, the principal question that
arises for consideration at the threshold is whether the Board's Report
of the Board constituted pursuant to the Consent Order passed by this
Court in OMP No. 408/2011, either by itself or when read in
conjunction with the said Consent Order, possesses the character of a
3
Section 9 Petition
4
Board‟s Report
`
Signature Not Verified
EX.P. 23/2017 Page 2 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
decree, arbitral award, or any other enforceable determination capable
of execution in law.
5. The answer to the aforesaid question goes to the very root of the
maintainability of the present proceedings. It is only if this Court
concludes that the Board's Report, either independently or read along
with the Consent Order, is capable of execution in law that it would be
necessary to examine the merits of the reliefs sought by the Decree
Holder. Conversely, if the Board's Report is found not to possess the
status of an executable award, decree, or other enforceable instrument,
the present Execution Petition would fail at the threshold and be liable
to dismissal without any further examination of the reliefs claimed
therein.
BRIEF FACTS:
6. Shorn of unnecessary details, the facts germane to the
institution of the present Petition are as follows:
(a) It is stated that the Judgement Debtor entered into a Concession
5
Agreement dated 18.04.2002 with the National Highways
6
Authority of India , upon the Judgement Debtor being
awarded the work of conversion of NH-8 (14.3KM to 42KM)
('Delhi-Gurgaon-Expressway') to six/eight lanes on a BOT
7
basis .
(b) Pursuant to the Concession Agreement, a State Support
8
Agreement dated 24.05.2004 and 22.02.2005 was entered
5
Concession Agreement
6
NHAI
7
Project
8
SSA
`
Signature Not Verified
EX.P. 23/2017 Page 3 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
into between the Judgment Debtor, Government of National
9
Capital Territory of Delhi , State of Haryana, and NHAI.
(c) It is stated that the Rajokari Border became functional and
operational on 23.01.2008, whereupon the collection of toll tax
commenced, including by the Judgment Debtor.
(d) The Judgment Debtor was collecting integrated toll taxes within
its own toll collection system, i.e., the toll collected by the
Judgment Debtor included the toll taxes to be collected by the
Decree Holder, State of Haryana, as well as the service charges
component charged by the Judgment Debtor.
(e) It is further stated that since the Decree Holder and the
Judgement Debtor could not arrive at a consensus with respect
to the rate of Service Charges and in view thereof, the Decree
Holder, M/s. PKSS Infrastructure Ltd. and the Judgement
Debtor entered into a Memorandum of Understanding dated
10
15.05.2008 and it was agreed inter alia , that the MoU was
valid for a period of three years, and that for the said three-year
period, the rate of Service Charges would be decided by a
mutually agreed Government Agency and that such
recommendation shall be final and binding on all the parties.
(f) Subsequently, the parties mutually agreed upon the appointment
of M/s RITES Ltd., a Public Sector Undertaking, to determine
the rate of Service Charges payable to the Judgement Debtor.
M/s. RITES Ltd. vide its report dated 05.09.2008 fixed the
Service Charges @11.28%.
9
GNCTD
10
MoU
`
Signature Not Verified
EX.P. 23/2017 Page 4 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
(g) It is stated that in the meeting dated 01.10.2008, it was agreed
between the Judgment Debtor and the Decree Holder that the
Service Charges shall be collected @11% for the period
16.05.2011 to 16.05.2014.
(h) Therefore, pursuant to the MoU, the report of M/s. RITES Ltd.
and the meeting dated 01.10.2008, it was agreed that the
Judgment Debtor would collect the toll from commercial
vehicles at Rajokari Border and remit the toll tax to PKSS after
deducting the Service Charges at the agreed rate of 11%.
(i) It is stated that meetings were held between the Decree Holder
and the Judgment Debtor in 2011, to agree upon the rate of
Service Charges for the period after 16.05.2011. However, the
parties could not arrive at a mutually agreeable rate.
(j) On 14.05.2011, the Judgment Debtor sent a letter to the Decree
Holder, stating that the latter had not made necessary
arrangements to collect toll tax, and that any newly appointed
representatives of the Decree Holder doing so was likely to
result in extensive traffic jams, thereby inconveniencing the
public at large. It is further stated that to prevent the public
nuisance, the Judgment Debtor informed the Decree Holder that
it would continue to collect toll tax on behalf of the Decree
Holder and levy Service Charges at the existing rate of 11%, till
such other rate was decided by M/s. RITES Ltd. or any similar
government agency.
(k) The Decree Holder, to the contrary, insisted upon the
Judgement Debtor to collect Service Charges only @3%.
`
Signature Not Verified
EX.P. 23/2017 Page 5 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
(l) Since disputes had arisen between the parties, it is stated that
the Judgement Debtor invoked the arbitration clause, being
Clause 9.2 of the SSA vide letter dated 17.05.2011; however, no
response to the same was given by the Decree Holder.
(m) Subsequently, the Judgment Debtor filed a petition under
11
Section 9 of the Arbitration and Conciliation Act, 1996 ,
being O.M.P. 408/2011 titled as „ M/S Delhi-Gurgaon Super
Connectivity Limited vs. Govt of National Capital Territory of
Delhi & Ors. ‟, seeking protection against any interference by
the Decree Holder in its collection of toll tax at the Rajokari
Border.
(n) By an order dated 04.07.2011, this Court granted ad interim
protection by directing maintenance of the status quo and
restraining the Decree Holder from interfering with the
Judgment Debtor's collection of toll tax pending further orders.
(o) Subsequently, with the consent of the parties, this Court vide
Order dated 25.04.2012 directed the constitution of a Board for
determining the collection charges payable to the Judgment
Debtor for rendering integrated toll tax collection services at the
Rajokri Border. It was directed that the Board would comprise
representatives not below the rank of Chief Engineer from the
12
National Institute of Financial Management, Faridabad
and Infrastructure Development Financial Corporation
13
Limited , who would jointly nominate a third member. In view
11
A&C Act
12
NIFM
13
IDFC
`
Signature Not Verified
EX.P. 23/2017 Page 6 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
of the aforesaid arrangement, the Section 9 Petition came to be
disposed of by consent.
(p) It is stated that the Board could not be constituted in terms of
the Order dated 25.04.2012. Consequently, the Decree Holder
moved an application before this Court seeking modification of
the said Order and reconstitution of the Board for the
determination of the service charges payable in respect of the
integrated toll collection operations at the Rajokri Border.
Accordingly, with the consent of the parties, this Court vide
Order dated 20.02.2013 modified the earlier arrangement and
directed that the Board be constituted through the Central
14
Road Research Institute, Mathura Road, New Delhi , for
carrying out the aforesaid exercise.
(q) Thereafter, upon a further application seeking clarification and
modification of the Order dated 20.02.2013, this Court, by the
Consent Order dated 15.03.2013, modified the earlier directions
and ordered that NIFM and CRRI would jointly nominate a
third expert member for constituting the Board. It was further
directed that the Board would submit its final report
determining the collection charges payable for integrated toll
tax collection within a period of four months.
(r) Pursuant to the aforesaid directions, a three-member Board
came to be duly constituted.
(s) The Board thereafter undertook an examination of the
integrated toll collection mechanism at the Rajokri Border,
including the traffic management system, infrastructure
14
CSIR
`
Signature Not Verified
EX.P. 23/2017 Page 7 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
deployed, operational requirements, and expenses incurred in
the collection process. Upon consideration of the relevant
material and after carrying out its assessment, the Board
submitted its Report dated 03.03.2014, setting out its findings
and recommendations.
(t) In its report, the Board, inter alia , recommended that the service
charges payable to the concessionaire/Judgment Debtor for
rendering integrated toll collection services should be fixed at
7% of the toll tax collections for the contractual period
commencing from 16.05.2011 at 6:00 A.M. and ending on
16.05.2014 at 5:59 A.M.
(u) According to the Decree Holder, notwithstanding the
determination made by the Board, the Judgment Debtor
continued to deduct service charges at the rate of 11% instead
of 7%, thereby retaining an additional 4% of the toll tax
collections, which, according to the Decree Holder, belonged to
it.
(v) It is the case of the Decree Holder that, as a consequence of the
aforesaid excess deduction of 4% service charges during the
relevant period, a sum of Rs. 15,73,95,405/-, along with
applicable interest, became recoverable from the Judgment
Debtor.
(w) In these circumstances, the Decree Holder, after three years
from the date of the Board's Report, instituted the present
Execution Petition seeking enforcement of the Consent Order
read in conjunction with the Report submitted by the Board
constituted pursuant to the directions of this Court.
`
Signature Not Verified
EX.P. 23/2017 Page 8 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
SUBMISSIONS ON BEHALF OF THE PARTIES:
7. In support of the objections raised to the maintainability of the
present Execution Petition, learned Senior Counsel appearing on
behalf of the Judgment Debtor would submit that neither the Consent
Order nor the Board's Report, which are sought to be enforced through
the present proceedings, possesses the character of an executable
decree or an arbitral award.
8. It would be contended that, in the absence of any decree, award,
or other executable instrument recognized by law, the present
Execution Petition is not maintainable and is liable to be dismissed at
the threshold.
9. He would submit that the Board constituted pursuant to the
Orders dated 25.04.2012, 20.02.2013 or 15.03.2013 passed by this
Court in the Section 9 Petition was merely an expert committee
formed for the determination of the rate of service charges payable in
respect of integrated toll tax collection at the Rajokri Border and could
not be classified as an Arbitral Tribunal constituted under the
provisions of the A&C Act.
10. Learned Senior Counsel appearing on behalf of the Judgment
Debtor would further submit that the Board was constituted pursuant
to the Orders passed by this Court in the Section 9 Petition instituted
by the Judgment Debtor. It would be contended that none of the said
Orders stipulates that the Report to be submitted by the Board would
be final and binding upon the parties. Consequently, the Board's
Report cannot be treated as a binding adjudication giving rise to any
executable rights or obligations.
`
Signature Not Verified
EX.P. 23/2017 Page 9 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
11. He would further submit that the proceedings before this Court
in the Section 9 Petition merely resulted in the constitution of an
expert Board/Committee for the determination of service charges and
not an Arbitral Tribunal empowered to adjudicate disputes inter se the
parties.
12. Learned Senior Counsel would further contend that the Board‟s
Report is merely recommendatory in nature and does not embody any
binding adjudicatory determination. According to him, this is evident,
inter alia , from the covering letter dated 03.03.2014 accompanying
the Report, wherein the Board itself described its exercise as one
undertaken by "technical experts".
13. It would be argued by the learned Senior Counsel that the Board
did not conduct proceedings in the nature of arbitration, inasmuch as
no statement of claim or pleadings were filed before it, no evidence
was recorded, no oral hearings were conducted and no adjudicatory
procedure contemplated under Section 23 and Section 24 of the A&C
Act was followed.
14. He would submit that the Board merely undertook an
independent technical study based upon empirical data, operational
assessment and visits to various toll plazas and thereafter made
recommendations regarding the appropriate rate of service charges.
Consequently, the Board‟s Report could, at best, be treated as an
expert determination and not as an Arbitral Award capable of
execution under Section 36 of the A&C Act.
15. Learned Senior Counsel would also submit that the essential
requirements of a „decree‟ under Section 2(2) of the CPC, are absent
in the present case since there had been no formal adjudication by a
`
Signature Not Verified
EX.P. 23/2017 Page 10 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
competent Civil Court or Arbitral Tribunal conclusively determining
the rights and liabilities of the parties.
16. It would further be submitted that none of the aforesaid Orders
stipulates that the findings or recommendations of the Board would
conclusively determine the rights and liabilities of the parties or would
be binding upon them. It would, therefore, be submitted that the
Board's Report cannot partake the character of a decree or executable
determination in law.
17. In support of the aforesaid submissions, reliance would be
15
placed upon K.K. Modi v. K.N. Modi and Ors , Bharat Bhushan
16
Bansal v. U.P. Small Industries Corporation Ltd and South Delhi
17
Municipal Corporation v. SMS Limited to contend that an expert
determination or non-binding recommendation cannot be equated with
an Arbitral Award or binding adjudication.
18. Reliance would further be placed upon Singrauli Super
18
Thermal Power Station v. Ashwini Kumar Dubey , Renu Arora v.
19
St. Margaret Senior Secondary School , Kantha Vibhag Yuva Koli
20
Samaj Parivartan Trust v. State of Gujarat and Others and
21
Gastrade International v. Commissioner of Customs to submit that
expert committee reports merely aid adjudication and remain subject
to examination and determination by a competent Court or Tribunal.
19. He would further submit that the conduct of the Decree Holder
itself demonstrates that the Board's Report was never treated as an
15
(1998) 3 SCC 573
16
(1992) 2 SCC 166
17
2025 SCC OnLine SC 1138
18
(2023) 8 SCC 35
19
2025 SCC OnLine Del 7137
20
(2023) 13 SCC 525
21
(2025) 8 SCC 525
`
Signature Not Verified
EX.P. 23/2017 Page 11 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
executable award, inasmuch as the Decree Holder independently
instituted Civil Suit being CS(OS) No. 110/2017 seeking recovery of
the very same amount on the basis of the said Board's Report.
20. It would be argued that filing of the aforesaid civil suit clearly
establishes that even according to the Decree Holder, the Report
required adjudication through appropriate legal proceedings and was
not executable per se as a decree or Arbitral Award.
21. He would additionally contend that the Decree Holder had
failed to disclose the pendency of the aforesaid Civil Suit in the
present proceedings and, therefore, the present Execution Petition was
liable to be dismissed on the ground of suppression of material facts
alone.
22. Learned Senior Counsel would further submit that the
subsequent developments recorded by this Court in its Consent Order
dated 19.02.2014, passed in another petition, being OMP No.
288/2013, are also material and have a direct bearing on the
maintainability of the present Execution Petition. It would be pointed
out that the said order records that, during the pendency of the
proceedings, disputes amongst NHAI, IDFC Limited and the
Judgment Debtor had been amicably settled. The order further records
that the Judgment Debtor and IDFC had agreed to the substitution of
the Judgment Debtor by a Special Purpose Vehicle formed by some
Senior Lenders.
23. It would further be submitted that this Court, while passing the
aforesaid order, took note of a Memorandum of Understanding dated
17.02.2014 executed between the Judgment Debtor and IDFC. Under
the said arrangement, the Senior Lenders were to assume and take
`
Signature Not Verified
EX.P. 23/2017 Page 12 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
over the liabilities of the Judgment Debtor towards the Decree Holder.
In view of the aforesaid settlement and transfer of liabilities, learned
Senior Counsel would contend that the present Execution Petition, as
framed against the Judgment Debtor, is not maintainable and is liable
to be dismissed on this ground as well.
24. Per Contra , learned counsel appearing on behalf of the Decree
Holder would submit that the present Execution Petition has been
filed for enforcement of the Consent Orders dated 25.04.2012,
20.02.2013 and 15.03.2013 passed by this Court in the Section 9
Petition, read along with the Board's Report submitted pursuant
thereto.
25. It would be submitted that the Judgment Debtor had expressly
consented to the constitution of the Board for determining the service
charges payable in respect of integrated toll tax collection at the
Rajokri Border. The Judgment Debtor not only agreed to the
constitution of the Board but also participated in the proceedings
conducted by it, which ultimately culminated in the submission of the
Board's Report.
26. It would be argued that pursuant to the directions issued by this
Court, the Board undertook a detailed assessment of the toll collection
mechanism, infrastructure, operational expenditure and traffic
management system and thereafter determined that the service charges
payable to the Judgment Debtor ought to be restricted to 7% for the
relevant contractual period.
27. It would also be submitted that by virtue of Section 36 of the
CPC, the provisions relating to execution of decrees are equally
applicable to execution of Orders passed by competent courts.
`
Signature Not Verified
EX.P. 23/2017 Page 13 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
28. It would further be submitted that the controversy involved in
the present execution proceedings is no longer res integra in view of
the judgment of the Division Bench of this Court in Angle
22
Infrastructure Pvt. Ltd. v. Ashok Manchanda , wherein, according
to the Decree Holder, this Court held that a compromise
agreement/board report arrived at pursuant to proceedings such as
under Section 9 of the A&C Act, would partake the character of a
conciliated settlement and would consequently be executable in
accordance with law.
29. Learned counsel further places reliance upon the judgment of
the Co-ordinate Bench of this Court in Anand Gupta v. Almond
23
Infrabuild (P) Ltd. to contend that the Orders passed in proceedings
under Section 9 of the A&C Act, or the Report submitted by the
Board constituted pursuant thereto, are fully executable in law by
virtue of Section 36 of the CPC.
30. In support of the aforesaid contention, reliance would be placed
upon the judgment of the Hon‟ble Supreme Court in M.V.S.
24
Manikayala Rao v. Narasimhaswami , wherein it was held that the
provisions relating to execution of decrees are equally applicable to
execution of orders by virtue of Section 36 of the CPC.
31. He would also seek to place his reliance upon the judgment of
the Division Bench of this Court in Rohit Shekhar v. Narayan Dutt
25
Tiwari , wherein this Court reiterated that Section 36 of the CPC
makes the provisions relating to execution of decrees applicable to
execution of orders as well.
22
2016 SCC OnLine Del 1534
23
2024 SCC OnLine Del 6184
24
AIR 1966 SC 470
25
2012 SCC OnLine Del 2438
`
Signature Not Verified
EX.P. 23/2017 Page 14 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
32. Learned counsel would accordingly submit that the Board's
Report, having been rendered pursuant to the consent directions issued
by this Court, the Judgment Debtor could not be permitted to evade
compliance with the determination made therein.
ANALYSIS:
33. This Court has heard the learned counsel appearing for the
parties at considerable length and has carefully perused the material
placed on record, the judicial precedents relied upon by the respective
parties, as well as the written submissions filed pursuant to the
conclusion of oral arguments.
34. A consideration of the submissions advanced on behalf of the
Decree Holder indicates that the entire foundation of the present
Execution Petition rests upon the Consent Orders dated 25.04.2012,
20.02.2013 and 15.03.2013 passed by this Court in the Section 9
Petition, read along with the Board's Report dated 03.03.2014
submitted pursuant thereto. According to the Decree Holder, since the
Judgment Debtor had expressly consented to the constitution and
reconstitution of the Board for determining the service charges
payable in respect of integrated toll tax collection at the Rajokri
Border, the determination made by the Board became final and
binding upon the parties. It is on this premise that the present petition
has been instituted, seeking execution of the Board's determination.
35. At the outset, this Court notes that there can be no quarrel with
the proposition canvassed by the Decree Holder that an order of a civil
court is capable of execution in the same manner as a decree by virtue
`
Signature Not Verified
EX.P. 23/2017 Page 15 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
of Section 36 of the CPC. The principle is well settled and requires no
further elaboration.
36. However, before examining whether the present petition is
maintainable, it becomes necessary to ascertain whether the orders
relied upon by the Decree Holder are, in fact, of such a nature as
would render them executable. Section 2(14) of the CPC defines an
" order " to mean the formal expression of any decision of a civil court
which is not a decree.
37. Thus, the essential attribute of an order is the existence of a
judicial determination or decision by the court. To the extent that a
court renders a decision determining rights, liabilities, obligations, or
issues arising before it, such determination may constitute an order
capable of enforcement in accordance with law. The question,
therefore, is whether the Orders dated 25.04.2012, 20.02.2013 and
15.03.2013 contain any determination of rights or liabilities, either
expressly or by necessary implication, which is capable of being
enforced through execution proceedings.
38. In order to answer the aforesaid question, it is necessary to
examine the contents and true import of the said orders.
39. Initially, in the Section 9 Petition instituted by the Judgment
Debtor, this Court had granted interim protection by directing
maintenance of the status quo in relation to the collection of toll tax.
Thereafter, with the consent of the parties, this Court passed the Order
dated 25.04.2012 directing the constitution of a Board for determining
the collection charges payable to the Judgment Debtor for rendering
integrated toll tax collection services at the Rajokri Border. The Board
was to comprise representatives nominated by NIFM and IDFC, who
`
Signature Not Verified
EX.P. 23/2017 Page 16 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
would jointly nominate a third expert member. The Board was
directed to submit a report determining the collection charges payable
for integrated toll tax collection within three months. The Section 9
Petition was thereafter disposed of by consent. The relevant portion of
the said Order reads as under:
“ 8. Both the parties have handed over a list of proposed entities to
determine the service charges. It is agreed between the parties that
National Institutes of Financial Management (NIFM, Faridabad)
and Infrastructure Development Financial Corporation Limited
(IDFC) shall appoint a person not less than a rank of Chief
Engineer and having a knowledge of traffic and engineering
studies who shall jointly appoint the third officer to constitute a
Board (hereinafter referred to as the Board). The Board shall give a
report to determine the collection charges payable to the petitioner
for the integrated toll tax collection, within three months. Till such
time, the collection charges payable to the petitioner for the
integrated toll tax collection is finalized, the interim orders will
continue.
9. Petition stands disposed of as agreed between the parties.
Dasti.”
40. Since the Board could not be constituted in terms of the Order
dated 25.04.2012, an application came to be filed seeking
modification of the said arrangement. Consequently, by consent of the
parties, this Court passed the Order dated 20.02.2013 directing that the
CRRI would constitute the Committee/Board for the determination of
the service charges at the Rajokri Border and submit its report within
a period of four months. The relevant portion of the said Order reads
as under:
“ I.A.No.22998/2012 (u/S 151 CPC) in O.M.P. 408/2011
This Court disposed of the present petition by order dated 25th
April, 2012 with the following directions:
“Both the parties have handed over a list of proposed
entities to determine the service charges. It is agreed
between the parties that national Institutes of Financial
Management (NIFM, Faridabad) and Infrastructure
Development Financial Corporation Limited (IDFC) shall
`
Signature Not Verified
EX.P. 23/2017 Page 17 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
appoint a person not less than a rank of Chief Engineer
and having a knowledge of traffic and engineering studies
who shall jointly appoint the third officer to constitute a
Board (hereinafter referred to as the Board). The Board
shall give a report to determine the collection charges
payable to the petitioner for the integrated toll tax
collection, within three months. Till such time, the
collection charges payable to the petitioner for the
integrated toll tax collection is finalized, the interim orders
will continue.”
Thereafter the respondent has filed present application seeking
direction to reconstitute the Committee for the determination of the
service charge at Rajokari Boarder by directing the petitioner to
nominate the organization as mentioned in para 7. The learned
counsel appearing on behalf of both the parties submit that their
clients are agreeable if the CRRI, P.O. CRRI, Mathura Road, New
Delhi-110020, is appointed who shall constitute the Committee for
the determination of the service charge at Rajokari Border. The
learned counsel for both the parties request that CRRI be directed
to submit its final report within a period of four months. Ordered
accordingly. The application is disposed of.”
41. Subsequently, another application was filed seeking
clarification and modification of the Order dated 20.02.2013. By
Consent Order dated 15.03.2013, this Court directed that NIFM and
CRRI would jointly appoint the third expert member to constitute the
Board and further directed that the Board would submit its final report
determining the collection charges payable for integrated toll tax
collection within four months. The relevant portion of the said Order
reads as under:
“ I.A.No.4392/2013
The abovementioned application has been filed by respondent No.2
under Section 151 CPC seeking clarification/modification of the
order dated 20th February, 2013 to the extent that NIFM and CRRI
shall jointly appoint the third officer to constitute a Board and the
Board shall give a final report to determine the collection charge
payable for the integrated Toll Tax collection within four months.
Learned counsel for the petitioner has no objection, if the
application is allowed. Ordered accordingly.”
`
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BHATIA
Signing Date:02.07.2026
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42. Pursuant to the aforesaid directions, a three-member Board
consisting of technical and financial experts came to be duly
constituted and thereafter proceeded to undertake the exercise
entrusted to it.
43. A conjoint reading of the Orders dated 25.04.2012, 20.02.2013
and 15.03.2013 makes it evident that the sole object of the said orders
was to establish a mechanism through which experts possessing
technical and financial expertise could determine the appropriate
collection or service charges payable in respect of integrated toll tax
collection at the Rajokri Border. The Order dated 25.04.2012 merely
provided for the constitution of the Board and directed it to submit a
report. The Order dated 20.02.2013 was concerned only with
reconstituting the mechanism owing to practical difficulties in
constituting the Board in the manner originally contemplated.
Likewise, the Order dated 15.03.2013 merely clarified the
composition of the Board and reiterated that the Board would submit
its final report within a stipulated period.
44. Significantly, none of the aforesaid orders contains any
adjudication by this Court regarding the rights and liabilities of the
parties. Equally, none of the orders records any agreement between
the parties that the Board would function as an adjudicatory body,
exercise powers akin to those of an arbitral tribunal, or render a
determination that would be final and binding upon them. The Orders
merely entrusted a panel of experts with the task of examining the
relevant material and submitting a report regarding the appropriate
collection charges payable for integrated toll tax collection.
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BHATIA
Signing Date:02.07.2026
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45. There is nothing in the language of the Orders, either express or
implied, from which it can be inferred that the parties agreed that the
Board's determination would, by itself, create enforceable rights and
obligations or attain the status of a decree, award, or other executable
instrument. Consequently, the mere fact that the parties consented to
the constitution of the Board cannot, without more, lead to the
conclusion that every recommendation or determination contained in
the Board's report became binding and executable as a matter of law.
46. At this juncture, it would be apposite to examine the nature,
scope and contents of the Board's Report itself. Pursuant to the
directions issued by this Court, the Board prepared its report dated
03.03.2014. A perusal of the report reveals that the Board undertook a
technical study concerning the determination of service charges
payable for integrated toll tax collection at the Rajokri Border.
47. The Board's Report records the objective and scope of the
study, the methodology adopted by the Board, the data and material
considered by it, the various operational, infrastructural, traffic and
financial factors taken into account, and ultimately sets out its
conclusions and recommendations. The Board's Report culminates in
a section titled " Conclusions and Recommendations ", wherein the
Board recorded its findings and, on the basis thereof, recommended,
inter alia , that the service charges payable to the concessionaire/
Judgement Debtor for the contract period from 16.05.2011 to
16.05.2014 be fixed at 7% of the MCD toll tax collection. Such
Conclusions and Recommendations as recorded in the Board's Report
read as under:
“ 6. CONCLUSIONS AND RECOMMENDATIONS
6.11 Conclusions
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BHATIA
Signing Date:02.07.2026
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Based on the data/information gathered and analysis conducted,
through the implementation of this study, towards determination of
service charges, the following conclusions may be drawn:
1. The service-time and waiting time for vehicles in queue at the
gates for paying the toll tax has been observed to be less in case of
integrated toll plazas when compared with the non-integrated toll
plazas.
2. Capital cost viz., civil cost and equipment cost (which are
integral part of the normal toll plaza operations) have already been
accounted for in the Concession Agreement between the
Concessionaire and NHAI. Therefore, these costs should not be
shared by MCD because in that case it would be accounted twice
which is incorrect.
3. Certain cost items (as indicated in table-2) by the Concessionaire
to be pertaining to MCD toll tax collection, were not agreeable to
the Board on the ground that Concessionaire is under obligation to
provide necessary arrangements, logistics and resources at the toll
plaza in order to fulfill its contractual obligations irrespective of
MCD toll tax collection.
6.2 Recommendations
Based on findings of the study, Board recommends the following:
1. An annual increase of 10 percent should be considered towards
factoring in inflation while estimating the cost.
2. The Concessionaire would be collecting higher MCD toll tax for
the current contract in comparison to the previous contract on
account of higher toll rates even without any Increase in the traffic
volume. The increased MCD toll collection would consequently
give higher returns to the Concessionaire without any significant
incremental/additional cost to the concessionaire.
3. There has been a phenomenal growth of traffic on Delhi-
Gurgaon Expressway since It became operational. With the
increase in traffic volume, the Concessionaire is likely to get
higher returns in terms of higher MCD toll tax collection and
consequently the higher service charges even without any
significant incremental cost. With the increased toll fees/rates;
phenomenal traffic growth and increased usage of toll plaza
operations, the concessionaire is bound to get much higher and
increased returns (in terms of service charges) with least Increase
in his collection cost towards MCD toll. Therefore, the Board is of
the view that the rate of service charges should get reduced from
one contract to another contract (of 3 years duration) due to
specific reasons mentioned herein above. However, the exact
extent of service charges ought to be determined for each contract
period separately. Further, the service charges need to be unique to
the specific toll plaza since different toll plazas operate under
widely varying operating and environmental conditions, including
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BHATIA
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varying financial health which has significant bearing on the
determination of service charges.
4. The service charge for Rajokari toll plaza has been worked out
to be 7.02 percent of MCD toll tax collection. As per its majority
view, the Board recommends that the service charge of 70% of
MCD toll tax collection shall be paid to the Concessionaire by
MCD for the contract period from 16th May 2011 (6.00 AM) to
16th May 2014 (5.59 AM) for the services (MCD toll tax
collection) being provided on behalf of MCD.”
48. The contents of the Board's Report themselves demonstrate that
the Board was engaged in a technical and consultative exercise
involving traffic studies, operational assessments, infrastructure
evaluation and financial analysis. The exercise undertaken by the
Board was not adjudicatory in nature. Significantly, no arbitral or
judicial procedure was followed before the Board. No statement of
claim or defence was filed; no pleadings were exchanged; no issues
were framed; no evidence was led; no witnesses were examined; and
no oral hearings were conducted. The Board merely gathered
information, analysed relevant data and, on the basis of its technical
assessment, arrived at certain conclusions and recommendations
regarding the appropriate rate of service charges.
49. It is also pertinent to note that there is no subsequent order of
this Court either accepting, affirming, modifying or otherwise
conferring legal sanctity upon the Board's Report. Equally, there is no
material on record to indicate that, after submission of the Board's
Report on 03.03.2014, the Decree Holder approached this Court in the
disposed of Section 9 proceedings seeking clarification,
implementation, adoption, or any declaration regarding the legal effect
of the said Report. On the contrary, for a considerable period
thereafter, no such steps appear to have been taken, and the Decree
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BHATIA
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Holder has directly sought to invoke the machinery of execution on
the basis of the report itself, by way of the present Execution Petition.
50. Equally significant is the fact that neither the consent orders
passed by this Court nor the consensual arrangement recorded
between the parties stipulates that the findings of the Board would
attain finality inter se the parties, constitute a binding adjudication of
their disputes, or become enforceable as a decree, order or arbitral
award.
51. If it were the intention of the parties that the Board's
determination would operate as a final and binding adjudication of
their disputes, such intention would ordinarily have found explicit
expression in the Consent Orders themselves. The Orders could have
provided that the parties would be bound by the Board's
determination, that the report would attain finality, or that the same
would be enforceable against the parties. However, no such stipulation
is to be found in any of the Orders dated 25.04.2012, 20.02.2013 or
15.03.2013. In the absence of any such express or necessarily implied
provision, this Court cannot read into the consent orders consequences
which neither emerge from their language nor appear to have been
consciously contemplated by the parties.
52. It is, in fact, an admitted position that the Board was never
constituted as an arbitral tribunal under the provisions of the A&C
Act. No reference was made to it under the said Act, no arbitral
mandate was conferred upon it, and no arbitral proceedings were
conducted before it. The Board's Report, therefore, cannot also be
regarded as an arbitral award capable of enforcement under Section 36
of the A&C Act. The parties merely agreed to the constitution of an
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BHATIA
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expert body for the purpose of technical determination of service
charges and not for the adjudication of disputes through a process
having the attributes of arbitration.
53. The Board's Report itself reinforces this conclusion. The Board
proceeded on the basis of technical inputs, empirical observations,
field studies and operational data collected from various toll plazas.
The exercise undertaken was essentially advisory and
recommendatory in nature. Significantly, the portion of the Board's
Report dealing with the determination of the rate of service charges
appears under the heading " Recommendations ". Indeed, Paragraph 6.2
of the Board's Report expressly states that the Board " recommends "
that service charges be fixed at 7% of the MCD toll tax collection. The
language employed by the Board leaves little room for doubt that what
was rendered was a recommendation based upon technical analysis
and not a binding adjudicatory determination intended to conclusively
determine the legal rights and liabilities of the parties.
54. This Court is therefore of the view that the entire foundation of
the case set up by the Decree Holder proceeds upon an impermissible
expansion of the scope and effect of the consent Orders passed in the
Section 9 Petition. The fact that the parties agreed to obtain the
opinion of a panel of experts regarding the appropriate service charges
cannot, by itself, elevate the expert opinion rendered by such panel to
the status of an executable decree, order or arbitral award.
55. It bears reiteration that a careful reading of the Orders dated
25.04.2012, 20.02.2013 and 15.03.2013 demonstrates that the consent
accorded by the parties was confined to the constitution of a Board
comprising technical and financial experts for the purpose of
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BHATIA
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determining the appropriate service charges payable in respect of
integrated toll collection. Neither the orders passed by this Court nor
the consensual arrangement recorded therein contains any decision or
declaration that the findings of the Board would attain finality inter se
the parties so as to conclusively determine their legal rights and
liabilities.
56. Significantly, the Orders do not record any agreement between
the parties that:
(a) The Board would function as an adjudicatory forum;
(b) The Board would exercise powers akin to those of an arbitral
tribunal;
(c) The findings rendered by the Board would be final and binding
upon the parties;
(d) The report submitted by the Board would constitute an
executable determination; or
(e) All disputes between the parties concerning service charges
would stand conclusively determined upon submission of the
report.
57. Further, nor do the Orders contain any stipulation, express or
implied, that the determination made by the Board would
automatically acquire binding and enforceable status merely upon
submission of the Report.
58. In fact, the language employed in the Consent Orders is
confined to directing the Board to determine or submit a report
regarding the collection/service charges payable in respect of
integrated toll tax collection. The Orders are conspicuously silent as to
the legal consequences flowing from such determination. In the
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BHATIA
Signing Date:02.07.2026
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absence of any express provision conferring finality or enforceability
upon the Board's report, this Court is unable to accept the contention
that the Report, by itself, constitutes an executable instrument capable
of enforcement through the present execution proceedings.
59. It is a settled principle of law that finality of adjudication cannot
be inferred by implication, particularly where the parties have not
expressly agreed to be bound by the determination of an expert body.
The legal consequences flowing from an adjudicatory determination
must emanate either from a statutory framework or from a clear and
unequivocal agreement between the parties. If the parties intended that
the Board's determination would constitute a final and binding
adjudication of their disputes and conclusively determine their rights
and liabilities, such intention would necessarily have found express
reflection in the Consent Orders themselves.
60. This Court cannot, therefore, read into the Consent Orders,
consequences in the nature of a binding decision or adjudication
which neither emerge from the language employed therein nor were
consciously contemplated by the parties at the time when the Board
was constituted. To do so would amount to rewriting the terms of the
consensual arrangement between the parties and attributing to the
Board a legal status which was never envisaged either by the parties or
by the orders of this Court. Consequently, no executable right can be
said to arise merely from the submission of the Board's Report.
61. The submission advanced on behalf of the Decree Holder
would, in effect, require this Court to treat a consensual arrangement
providing for a technical determination by experts as equivalent to a
binding adjudicatory mechanism, notwithstanding the complete
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BHATIA
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absence of any agreement to that effect. Such an approach would be
contrary to settled principles governing consensual adjudication,
contractual autonomy and the doctrine of consensus ad idem .
62. This Court also finds merit in the contention that there was no
meeting of minds between the parties to treat the findings of the Board
as final and binding. The concept of legally enforceable terms and the
necessity of consensus ad idem has been succinctly explained by this
Court in Midpoint Commodeal Private Limited v Fidatocity Homes
26
Private Limited & Ors. , wherein it was observed that binding terms
can arise only when there exists a clear manifestation of mutual assent
and the parties agree upon the same thing in the same sense. The said
judgment further reiterates that contractual obligations cannot be
founded upon unilateral assumptions or subjective understandings and
that, unless the parties have mutually agreed upon essential and
material terms with certainty, clarity and finality, no concluded terms
can be said to exist in the eyes of law. The relevant paragraphs of the
said judgement read as follows:
“ 36. At this stage, it would be apposite to advert to the
foundational principles embodied in the Indian Contract Act,
27
1872 , which govern the formation and enforceability of contracts
in law. Section 2(e) of the ICA defines an “agreement” to mean
“every promise and every set of promises, forming the
consideration for each other.” The statutory definition itself makes
it abundantly clear that the existence of reciprocal promises
founded upon mutual assent forms the very basis of a legally
recognizable agreement.
37. Further, Section 2(b) of the ICA stipulates that when a
proposal is accepted, it becomes a promise. Thus, the essence of a
legally binding agreement lies in the existence of a lawful proposal
meeting with an absolute, unconditional, and unequivocal
acceptance. The statutory scheme under Section 2 of the ICA
clearly postulates that contractual obligations arise only where
26
2026 SCC OnLine Del 4476
27
ICA
`
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BHATIA
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there exists a clear manifestation of assent by the parties to the
same proposal. For ready reference, the relevant extracts of Section
2 of the ICA are reproduced herein below:
“2. Interpretation clause . - In this Act the following
words and expressions are used in the following senses,
unless a contrary intention appears from the context:—
( a ) When one person signifies to another his willingness to
do or to abstain from doing anything, with a view to
obtaining the assent of that other to such act or
abstinence, he is said to make a proposal;
( b ) When the person to whom the proposal is made
signifies his assent thereto, the proposal is said to be
accepted. A proposal, when accepted, becomes a
promise;
( c ) The person proposing is called the “promisor”, and the
person accepting the proposal is called the “promisee”;
( d ) When, at the desire of the promisor, the promisee or
any other person has done or abstained from doing or
does or abstains from doing, or promises to do or to
abstain from doing, something, such act or abstinence
or promise is called a consideration for the promise;
( e ) Every promise and every set of promises, forming the
consideration for each other, is an agreement;
( f ) Promises which form the consideration or part of the
consideration for each other, are called reciprocal
promises;
(g) An agreement not enforceable by law is said to be
void;
(h) An agreement enforceable by law is a contract;
(i) An agreement which is enforceable by law at the option
of one or more of the parties thereto, but not at the
option of the other or others, is a voidable contract;
( j ) A contract which ceases to be enforceable by law
becomes void when it ceases to be enforceable.”
(emphasis supplied)
38. In continuation thereof, Section 10 of the ICA provides that
all agreements become enforceable in law only when they are
made with the free consent of parties competent to contract, for
lawful consideration and with a lawful object. The expression “ free
consent ” assumes considerable significance in the present context,
for consent in the eyes of law cannot be equated with a unilateral
understanding, subjective assumption, or uncommunicated
intention of one of the parties. The statutory requirement is one of
consensus ad idem , namely , meeting of minds between the parties
upon the same thing in the same sense, as expressly postulated
under Section 13 of the ICA. Sections 10 and 13 of the ICA read as
follows:
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BHATIA
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“10. What agreements are contracts . - All agreements
are contracts if they are made by the free consent of
parties competent to contract, for a lawful consideration
and with a lawful object, and are not hereby expressly
declared to be void.
Nothing herein contained shall affect any law in force
in [India] and not hereby expressly repealed, by which
2
any contract is required to be made in writing or in the
presence of witnesses, or any law relating to the
registration of documents.”
*
“13. “Consent” defined.- Two or more persons are said
to consent when they agree upon the same thing in the
same sense.”
(emphasis supplied)
39. The doctrine of consensus ad idem constitutes the very
foundation and soul of binding terms between them. Unless it is
demonstrated that the parties had mutually agreed upon the
essential and material terms governing the transaction with
certainty, clarity, and finality, no concluded agreement can be said
to exist in the eyes of the law.”
63. Applying the aforesaid principles to the facts of the present
case, this Court finds that the consent recorded between the parties
was confined to the constitution of an expert Board for the purpose of
determining the service charges payable in respect of integrated toll
tax collection. The Consent Orders do not indicate, either expressly or
by necessary implication, that the parties agreed to submit their
disputes for final and binding adjudication by the Board or that they
intended the Board's determination to attain the status of a conclusive
and enforceable adjudication.
64. Further, in respect of the nature and function of the Board, it
must be emphasised that the mere constitution of an expert body
pursuant to consent directions issued by a Court cannot, by itself,
elevate the status of such body to that of an arbitral tribunal
constituted under the A&C Act. The source of authority, nature of
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BHATIA
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functions, procedure adopted and legal consequences flowing from the
determination of an expert body are fundamentally distinct from those
associated with an arbitral tribunal.
65. The distinction between an expert determination and an arbitral
adjudication is no longer res integra . Judicial precedents in India as
well as comparative common law jurisdictions have consistently
recognised that a reference of a technical or specialised issue to an
expert does not, by itself, amount to an arbitration agreement. Courts
have repeatedly held that the decisive consideration is whether the
parties intended the third party to act judicially and adjudicate disputes
between them, or merely to apply specialised knowledge and expertise
for arriving at a technical determination. Unless the former intention is
clearly established, the process remains one of expert determination
and not arbitration.
66. The distinction may be stated thus that an expert is appointed
for the purpose of applying his specialised knowledge, skill and
experience to ascertain or determine a particular technical issue, often
on the basis of his own expertise and investigation. An arbitrator, on
the other hand, acts in a quasi-judicial capacity. He receives rival
claims and defences, considers evidence and submissions advanced by
the parties, adjudicates disputed questions and ultimately renders a
binding determination of their rights and obligations. The two
functions, though they may occasionally overlap in subject matter, are
fundamentally different in character and consequence.
67. The Hon'ble Supreme Court, including in K.K. Modi (supra) ,
while delineating the attributes of an arbitral process, has held that for
a proceeding to qualify as arbitration, there must be a clear intention
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on the part of the parties to submit their disputes to a private tribunal
empowered to adjudicate upon them in a judicial manner. The Apex
Court further observed that an arbitrator ordinarily acts upon rival
contentions, evidence and submissions advanced by the parties and
renders a binding adjudication upon such disputes. The decision
makes it clear that every determination by a third person does not
amount to arbitration; rather, the intention of the parties and the nature
of the procedure adopted assume determinative significance in
deciding whether the process constitutes arbitration or merely an
expert determination.
68. Tested on the anvil of the aforesaid principles, this Court has no
hesitation in concluding that the Board constituted pursuant to the
consent directions contained in the Orders dated 25.04.2012,
20.02.2013 and 15.03.2013 was intended to function only as a
technical expert body. The Board was neither constituted as an
adjudicatory forum nor vested with the authority to judicially
determine disputes between the parties. Its role was confined to
examining technical and financial aspects relating to service charges
and furnishing its opinion in the form of a report. The Board,
therefore, cannot be equated with an arbitral tribunal, nor can its
report be treated as a binding adjudicatory determination capable of
execution in the absence of any express agreement or legal provision
conferring such status upon it.
69. The Court shall now consider the reliance placed by the Decree
Holder on the decisions in Angle Infrastructure (supra) and Anand
Gupta & Ors (supra) in support of the contention that the Orders
passed in the proceedings under Section 9 of the A&C Act, or any
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Report submitted by a Board constituted pursuant thereto, are fully
executable in law by virtue of Section 36 of the CPC.
70. In the considered opinion of this Court, the reliance placed on
the aforesaid decisions is misplaced and proceeds on a
misunderstanding of the ratio laid down therein.
71. Insofar as Angle Infrastructure (supra) is concerned, the said
decision arose in an entirely different factual context. In that case, the
parties had arrived at a settlement through mediation conducted under
the auspices of the Mediation Centre. The Section 9 proceedings were
thereafter disposed of by the Court on the basis of the settlement
arrived at between the parties. It was in those circumstances that the
Court held that although a settlement agreement resulting from
mediation may not, by itself, constitute either a decree or an arbitral
award, the order passed by the Court disposing of the proceedings in
terms of such settlement would nonetheless be enforceable under
Section 36 of the CPC in the same manner as a decree.
72. There can be no disagreement with the aforesaid proposition.
Indeed, this Court fully accepts the principle that where a Court
disposes of proceedings on the basis of a settlement mutually arrived
at between the parties, the resulting order may be enforced in
accordance with Section 36 of the CPC. However, the said principle
has no application to the facts of the present case. The present matter
does not involve any mediated settlement, compromise, or consensual
resolution of disputes whereby the parties agreed upon their respective
rights and liabilities and requested the Court to record the same. The
Consent Orders relied upon by the Decree Holder merely provide for
the constitution of an expert body to determine service charges and do
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not themselves embody any settlement of disputes or any
determination of liability.
73. The reliance placed by the Decree Holder upon Anand Gupta
& Ors (supra) is equally unavailing. A perusal of the said decision
demonstrates that the learned Coordinate Bench applied the principles
laid down in Angle Infrastructure (supra) in the context of a
settlement agreement that had been accepted and recorded by the
Court. The factual foundation of that case was therefore substantially
similar to that in Angle Infrastructure (supra) . The present case
stands on an entirely different footing. Here, there exists neither a
compromise decree, nor a settlement quantifying liability, nor any
adjudicatory determination conclusively fixing the amount payable by
one party to the other.
74. As already observed, this Court has no quarrel with the
proposition that an order passed by a Court may be executable in the
same manner as a decree by virtue of Section 36 of the CPC. The real
issue, however, is whether the orders relied upon by the Decree
Holder contain any enforceable determination capable of execution.
75. In this regard, it is necessary to recall that Section 2(14) of the
CPC defines an "order" to mean the formal expression of any decision
of a civil court which is not a decree. The defining characteristic of an
order, therefore, is the existence of a judicial decision rendered by the
Court. Mere procedural directions or arrangements facilitating future
determination of issues do not automatically assume the character of
executable orders unless they embody a decision determining rights or
liabilities.
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76. Section 36 of the CPC merely extends the provisions relating to
execution of decrees, insofar as they are applicable, to the execution
of orders. However, before recourse can be had to Section 36 of the
CPC, the Court must first identify an executable order within the
meaning of Section 2(14). In other words, there must exist a judicial
determination or decision, which could be made with the consent of
the parties as well, by the Court capable of enforcement. Only then
can the machinery of execution be invoked.
77. The consent orders passed in the present proceedings merely
facilitated the constitution and functioning of an expert Board for the
purpose of determining the appropriate service charges payable in
respect of integrated toll tax collection. None of those orders directed
payment of any quantified amount by the Judgment Debtor to the
Decree Holder. Equally, none of them adjudicated the rival rights and
liabilities of the parties or conclusively determined any monetary
claim.
78. In substance, the present proceedings seek to execute a
determination which neither the Consent Orders nor the Board's
Report was ever intended to constitute. Acceptance of the Decree
Holder's contention would require this Court to convert a technical
recommendation into a binding adjudicatory determination and
thereafter enforce the same through the coercive machinery of
execution. Such a course is impermissible in law.
79. At this stage, this Court also finds considerable merit in the
contention advanced on behalf of the Judgment Debtor that the
conduct of the Decree Holder itself is inconsistent with the stand
presently sought to be urged.
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80. It is an undisputed position that the Decree Holder instituted a
Civil Suit, being CS(OS) No. 110/2017, seeking recovery of the very
same amount which is now sought to be recovered through the present
Execution Petition on the basis of the Board's Report.
81. The institution of the said civil suit is itself indicative of the
Decree Holder's understanding that the Board's Report did not, by
itself, constitute an executable decree, award, or binding adjudicatory
determination. Had the report possessed the status of an executable
instrument, there would have been no necessity whatsoever to institute
independent civil proceedings seeking adjudication and recovery of
the same amount. The fact that the Decree Holder simultaneously
pursued substantive recovery proceedings substantially undermines
the premise on which the present Execution Petition is founded and
lends further support to the contention that the report was merely
recommendatory in nature.
DECISION:
82. In view of the foregoing discussion and analysis, this Court is
of the considered opinion that the present Execution Petition is wholly
misconceived and proceeds on an erroneous understanding of the
nature, scope, and legal effect of the Consent Orders dated
25.04.2012, 20.02.2013, and 15.03.2013, as well as the Board's Report
dated 03.03.2014. Neither the aforesaid Consent Orders nor the
Board's Report possesses the character of an executable decree,
arbitral award, or any other enforceable adjudicatory determination
recognised by law. Consequently, no execution proceedings can be
maintained on the basis thereof.
`
Signature Not Verified
EX.P. 23/2017 Page 35 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09
83. The present Execution Petition is, therefore, not maintainable
and is accordingly dismissed.
84. The Execution Petition, along with pending application(s), if
any, stands disposed of.
85. No order as to costs.
HARISH VAIDYANATHAN SHANKAR, J.
JULY 01, 2026/sm/va
`
Signature Not Verified
EX.P. 23/2017 Page 36 of 36
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:02.07.2026
16:44:09