M/S Gowra Petrochem Pvt. Ltd. vs M/S Alfa Chem & Ors.

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14.05.2026
+ OMP (ENF.) (COMM.) 215/2019, EX.APPL.(OS) 2965/2022
(For Dir.), EX.APPL.(OS) 3740/2022 (Dir.), EX.APPL.(OS)
3743/2022 (Objections for on behalf of the JD No.3),
EX.APPL.(OS) 3744/2022 (For U/O XXI Rule 27),
EX.APPL.(OS) 1955/2024 (For Delay 34 days in filing the
Affidavit in compliance of order dt. 24.07.2024),
EX.APPL.(OS) 732/2026 (Seeking waiver of cost imposed vide
order dt. 27.02.2026 by JD-2) & EX.APPL.(OS) 737/2026
(Delay of 20 days in filing arbitral record by Decree Holder)

M/S GOWRA PETROCHEM PVT. LTD. .....Decree Holder
Through: Mr. Abhishek Singh, Mr. J.
Amal Anand, Mr. Elvin Joshy,
Ms. Shivani Kalra, Mr. K.V.
Vibu Prasad and Mr. Akshat
Mishra, Advocates.
versus

M/S ALFA CHEM & ORS. .....Judgement Debtors
Through: Ms. Shraddha Bhargava and
Ms. Princy Sharma, Advocates
for Judgment Debtor Nos. 1 and
2.
Mr. Uttam Dutt, Senior
Advocate along with Mr. Rajiv
Dalal, Mr. Shresth Kausik, Mr.
Bhaskar and Ms. Dipti Singh
Arya, Advocates for Judgment
Debtor No. 3.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR


% JUDGEMENT (ORAL)
1. The present Execution Petition has been instituted under Order
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

1
XXI of the Code of Civil Procedure, 1908 , read with Section 36 of
2
the Arbitration and Conciliation Act, 1996 , seeking enforcement
3
and execution of the Arbitral Award dated 20.05.2019 passed by
the learned Sole Arbitrator in the arbitral proceedings titled “ M/s
Gowra Petrochem Pvt. Ltd. And M/s Alfa Chem and two others ”.
2. Pursuant to the Objections raised by Judgement Debtors
regarding the very maintainability and sustainability of the present
execution proceedings on the ground that the Impugned Arbitral
Award sought to be enforced emanates from a unilateral appointment
of the learned Sole Arbitrator, learned counsel appearing on behalf of
the Decree Holder fairly and candidly concedes that the learned Sole
Arbitrator who rendered the Impugned Award had indeed been
appointed unilaterally.
3. He further admits that there is no material available on record
evidencing any express waiver in writing, as contemplated under the
proviso to Section 12(5) of the A&C Act, executed between the
parties subsequent to the disputes having arisen.

4. Notwithstanding the aforesaid concession, learned counsel for
the Decree Holder endeavours to contend that the absence of any
proceedings having been instituted under Section 34 of the A&C Act
challenging the Impugned Arbitral Award within the prescribed period
would, by itself, render the Award final and binding between the
parties, and consequently amenable to enforcement under Section 36
of the A&C Act.
5. It is thus submitted by the learned counsel for the Decree

1
CPC
2
A&C Act
3
Impugned Arbitral Award
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
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Holder that merely because the Arbitral Award may have emanated
from a unilateral appointment, the same would not ipso facto render
the present execution proceedings non-maintainable in the absence of
a substantive challenge having been laid to the Award under Section
34 of the A&C Act, at the relevant stage.
6. In support of the aforesaid proposition, learned counsel
appearing on behalf of the Decree Holder places reliance upon the
judgment rendered by the Madras High Court in Sundaram Finance
4
Limited v. S.M. Thangara and Others , as also the judgment of the
said Court in Vr Dakshin Private Limited v. Scm Silks Private
5
Limited and Others .
7. Placing reliance upon the aforesaid judgements, it is contended
by the learned counsel for the Decree Holder that where no challenge
under Section 34 of the A&C Act has been preferred against an
arbitral award, objections pertaining to the legality or validity of the
constitution of the Arbitral Tribunal cannot subsequently be permitted
to be raised at the stage of enforcement proceedings under Section 36
of the A&C Act.
8. Learned counsel appearing on behalf of the Decree Holder
further submits that the scope of proceedings under Section 36 of the
A&C Act is purely executory in nature and that an Executing Court
cannot travel beyond the Arbitral Award so as to examine the legality
or correctness thereof, particularly in circumstances where the Arbitral
Award has attained finality owing to the absence of any challenge
under Section 34 of the A&C Act.
9. It is accordingly urged by the learned counsel for the Decree

4
2025 SCC OnLine Mad 5428
5
2024 SCC OnLine Mad 6761
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
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Holder that the objections now sought to be raised by the Judgment
Debtors amount to an indirect and belated challenge to the Award
itself, which is impermissible in law. On the strength of the aforesaid
submissions, learned counsel reiterates, with considerable emphasis,
that the present Execution Petition is fully maintainable and deserves
to proceed for enforcement in accordance with law.
10. Per contra , learned Senior Counsel appearing on behalf of
Judgment Debtor No. 3 submits that the controversy sought to be
raised by the Decree Holder no longer remains res integra and stands
settled by the Judgment rendered by the Division Bench of the Delhi
High Court in Mahavir Prasad Gupta and Sons v. Govt. of NCT of
6
Delhi .
11. Elaborating upon the aforesaid submission, learned senior
counsel places specific reliance upon Paragraph Nos. 56 and 57, as
also the concluding summary of principles contained in Paragraph No.
84 of the aforesaid judgment.
12. It is further submitted that the Division Bench in the said
judgement has categorically held that an arbitral award rendered by a
unilaterally appointed arbitrator suffers from an incurable
jurisdictional defect which strikes at the very root of the arbitral
proceedings and renders the resultant award a nullity in the eyes of
law. Such an award, being void ab initio and inherently unenforceable,
cannot be permitted to be executed merely because no proceedings
under Section 34 of the A&C Act were instituted against the same.
13. Learned Senior Counsel also submits that the Executing Court,
while exercising jurisdiction under Section 36 of the A&C Act read

6
2025 SCC OnLine Del 4241
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BHATIA
Signing Date:19.05.2026
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with Order XXI of the CPC, is fully competent to refuse enforcement
of an award which is ex facie without jurisdiction and consequently
non est in law. The relevant observations from the aforesaid judgment
have been reproduced herein below for ready reference:
“ 56. Hence, the objection with regard to award being nullity due to
unilateral appointment can be raised for the first time at the stage of
Section 34 of the Act and even in absence of the objection, if the
Court while deciding the application under Section 34 of the Act finds
that the award is vitiated by unilateral appointment can on its own set
aside the award.
57. Similarly, the Court executing the award under Section 36 of the
Act read with Order XXI of the Civil Procedure Code, 1908 („CPC‟)
can refuse to enforce the award, which is deemed to be a decree
passed by the Indian Court at the stage of enforcement proceedings.
Under CPC, a decree is said to be nullity if it passed by a Court having
lack of inherent jurisdiction. The decree is called nullity if it is ultra
vires the powers of the Court passing the decree and not merely
voidable decree. Applying the same principles to the awards that are
considered as decree under Section 36 of the Act, the Court enforcing
the awards must refuse to enforce the awards that are passed by
unilaterally appointed arbitrator, being a nullity having lack of
inherent jurisdiction to pass the award.
*
CONCLUSION:
84. In view of the above discussion, the legal position on the unilateral
appointment of the Sole and Presiding Arbitrator is summarized as
under:
a) Mandatory Requirement: Any arbitration agreement providing
unilateral appointment of the sole or presiding arbitrator is invalid.
A unilateral appointment by any party in the arbitrations seated in
India is strictly prohibited and considered as null and void since its
very inception. Resultantly, any proceedings conducted before such
unilaterally appointed Arbitral Tribunal are also nullity and cannot
result into an enforceable award being against Public Policy of
India and can be set aside under Section 34 of the Act and/or
refused to be enforced under Section 36 of the Act.
b) Deemed Waiver: The proviso to Section 12(5) of the Act requires
an express agreement in writing. The conduct of the parties, no
matter how acquiescent or conducive, is inconsequential and
cannot constitute a valid waiver under the proviso to Section 12(5)
of the Act. The ineligibility of a unilaterally appointed arbitrator
can be waived only by an express agreement in writing between the
parties after the dispute has arisen between them. Section 12(5) of
the Act is an exception to Section 4 of the Act as there is no
deemed waiver under Section 4 of the Act for unilateral
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

appointment by conduct of participation in the proceedings. The
proviso to Section 12(5) of the Act requires an „express agreement
in writing‟ and deemed waiver under Section 4 of the Act will not
be applicable to the proviso to Section 12(5) of the Act.
c) Award by an Ineligible Arbitrator is a Nullity: An award passed by
a unilaterally appointed arbitrator is a nullity as the ineligibility
goes to the root of the jurisdiction. Hence, the award can be set
aside under Section 34(2)(b) of the Act by the Court on its own if it
„finds that‟ an award is passed by unilaterally appointed arbitrator
without even raising such objection by either party.
d) Stage of Challenge: An objection to the lack of inherent jurisdiction
of an arbitrator can be taken at any stage during or after the
arbitration proceedings including by a party who has appointed the
sole or presiding arbitrator unilaterally as the act of appointment is
not an express waiver of the ineligibility under proviso to Section
12(5) of the Act. Such objection can be taken even at stage of
challenge to the award under Section 34 of the Act or during the
enforcement proceedings under Section 36 of the Act.”

ANALYSIS:
14. This Court has heard learned counsel appearing on behalf of the
respective parties at length and has bestowed its thoughtful and
anxious consideration upon the rival submissions advanced on behalf
of the parties.
15. Upon a careful, and comprehensive examination of the matter,
this Court finds considerable force and substantial merit in the
objections and submissions canvassed on behalf of the Judgment
Debtors.
16. At the outset, it may be noted that learned counsel appearing on
behalf of the Decree Holder does not dispute the settled legal position
that an arbitral award rendered pursuant to a unilateral appointment of
an arbitrator, in the absence of an express waiver in writing in terms of
the proviso to Section 12(5) of the A&C Act, would stand vitiated and
be rendered a nullity in the eyes of law.
17. The only plank of the submissions advanced on behalf of the
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
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Decree Holder is, however, confined to the contention that since no
petition under Section 34 of the A&C Act had been instituted
challenging the Impugned Arbitral Award at the relevant stage, the
objections touching upon the jurisdictional invalidity of the Award
cannot now be permitted to be raised or considered in the present
execution proceedings instituted under Section 36 of the A&C Act.
18. This Court is unable to persuade itself to accept the aforesaid
contention of the learned counsel for the Decree Holder. It is a settled
principle of law that enforcement cannot be permitted in respect of an
instrument, decree, determination, or adjudicatory outcome which is
ex facie void ab initio or constitutes a nullity in the eyes of law. A
determination suffering from an inherent lack of jurisdiction strikes at
the very root of the adjudicatory process and consequently cannot be
sanctified merely on account of lapse of time or failure of a party to
institute an independent challenge thereto.
19. Furthermore, as already noticed hereinbefore, the Division
Bench of this Court in Mahavir Prasad Gupta (supra) , particularly in
Paragraph Nos. 56 and 57 thereof, has unequivocally expounded the
legal position that while exercising jurisdiction in enforcement
proceedings under Section 36 of the A&C Act read with Order XXI
CPC, the Executing Court is not rendered powerless or functus officio .
On the contrary, the Court is fully competent to decline enforcement
where the Award sought to be executed is found to be a nullity on
account of an inherent jurisdictional defect, including where the
arbitral proceedings emanate from a unilateral appointment of the
arbitrator. The Division Bench has categorically held that such an
award is non est in law and incapable of enforcement.
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

20. The aforesaid position also stands authoritatively settled by the
Hon‟ble Supreme Court in Electrosteel Steel Ltd. v. Ispat Carrier (P)
7
Ltd. , while dealing with a substantially similar objection concerning
the executability of an arbitral award in the absence of proceedings
under Section 34 of the A&C Act. The Hon‟ble Supreme Court, while
examining the scope and interplay of Section 36 of the A&C Act and
Section 47 CPC, categorically held that although an arbitral award
becomes enforceable as a decree upon expiry of the limitation period
prescribed under Section 34 of the A&C Act, the Executing Court
nevertheless retains jurisdiction to examine objections pertaining to
executability where the award suffers from jurisdictional infirmity or
voidness.
21. The Hon‟ble Supreme Court in the said judgement observed
that Section 36 of the A&C Act merely assimilates an arbitral award
to a decree for the purposes of enforcement and that the execution of
such award is consequently governed by the principles contained in
the CPC. It was further held that Section 47 of the CPC empowers the
Executing Court to determine all questions relating to execution,
discharge, or satisfaction of the decree and that a decree which is a
nullity owing to inherent lack of jurisdiction can validly be questioned
at the stage of execution. The Hon‟ble Supreme Court further clarified
that the maintainability of such objections under Section 47 CPC is
neither dependent upon nor contingent upon the filing of proceedings
under Section 34 of the A&C Act.
22. In this regard, in that judgement, the Hon‟ble Supreme Court
specifically held that the High Court had erred in taking the view that

7
(2025) 7 SCC 773
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

failure to institute proceedings under Section 34 of the A&C Act
would preclude a judgment debtor from raising objections regarding
nullity or non-executability of the award at the execution stage. The
Apex Court emphatically reiterated that objections founded upon
inherent lack of jurisdiction or on the ground of being void, survive
even at the stage of execution, albeit within a narrow compass
confined to cases of patent nullity. The relevant observations of the
Hon‟ble Supreme Court in Electrosteel Steel ( supra ) read as under:
“ 1. This appeal by special leave is directed against the judgment
and order dated 17-7-2023 Electrosteel Steel Ltd. v. Ispat Carriers
(P) Ltd. 2023 SCC OnLine Jhar 1035 passed by the High Court
of Jharkhand at Ranchi in CMP No. 376 of 2023 filed by the
appellant.
2. The appellant had filed CMP No. 376 of 2023 before the High
Court of Jharkhand at Ranchi (briefly “the High Court” hereinafter)
under Article 227 of the Constitution of India assailing the order
dated 3-3-2023 passed by the learned Presiding Officer,
Commercial Court/District Judge 1, Bokaro in Commercial
Execution Case No. 21 of 2022 (Execution Case No. 77 of 2018). It
may be mentioned that by the aforesaid order dated 3-3-2023, the
learned Presiding Officer, Commercial Court/District Judge 1,
Bokaro (referred to hereinafter as “the executing court”) had
dismissed the application dated 14-5-2019 filed by the judgment-
debtor (the appellant), further directing the judgment-debtor (the
appellant) to comply with the award dated 6-7-2018 passed by the
West Bengal Micro, Small and Medium Facilitation Council,
Kolkata within fifteen days of the order.
*
10. The appellant did not challenge the award dated 6-7-2018 under
Section 34 of the Arbitration and Conciliation Act, 1996 (briefly
“the 1996 Act” hereinafter).
11. The respondent instituted execution proceeding which was
initially registered as Execution Case No. 77 of 2018 and thereafter
as Commercial Execution Case No. 21 of 2022 before the
executing court. At the stage of execution of the award, the
appellant filed a petition dated 14-5-2019 contending that the
arbitral award was a nullity and hence not executable as the claim
of the respondent was already settled at nil as per the resolution
plan and, therefore, nothing was payable to the respondent.
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

12. The executing court by the order dated 3-3-2023 dismissed the
petition of the appellant and directed it to comply with the award
dated 6-7-2018 within fifteen days.
*
14. Insofar as the first question is concerned, the High Court opined
that the plea of nullity qua an arbitral award can be raised in an
execution proceeding under Section 47CPC. However, the scope of
interference would be very narrow. As regards the second question,
the High Court rejected the contention of the appellant that since
the award suffered from patent or inherent lack of jurisdiction and
therefore was a nullity, it can be questioned at the stage of
execution without challenging the award under Section 34 of the
1996 Act. The High Court answered the third question by holding
that the Facilitation Council did not lose its jurisdiction to proceed
and pronounce the arbitral award notwithstanding approval of the
resolution plan by NCLT under Section 31 IBC. Reasoning given
by the High Court is that the arbitral proceedings were initiated
prior to the insolvency resolution date, kept suspended during the
moratorium period and resumed after lifting of the moratorium; the
approved resolution plan simply determined the claim of the
respondent as nil. Accordingly, vide the impugned judgment
[ Electrosteel Steel Ltd. v. Ispat Carriers (P) Ltd. , 2023 SCC
OnLine Jhar 1035 ] and order the High Court dismissed the
petition filed by the appellant under Article 227 of the Constitution
of India.
*
15. Hence, the present appeal.
*
64. This order came to be challenged by the appellant before the
High Court in a proceeding under Article 227 of the Constitution of
India. We have already noted the three issues framed by the High
Court for consideration. Insofar as the first issue is concerned, the
High Court is of the view that an award can be challenged in a
proceeding under Section 47CPC on the very limited ground of the
award being a nullity or void ab initio or suffering from inherent
lack of jurisdiction. However, the High Court opined that if an
aggrieved party does not challenge an award under Section 34 of
the 1996 Act, it cannot be permitted to object to its execution by
alleging it to be a nullity though such a plea of nullity can be
entertained if it is of such a grave nature that it is not even capable
of being waived by one or the other party. Therefore, the High
Court concluded that the plea of nullity qua an arbitral award can
be raised in a proceeding under Section 47CPC but such a
challenge would lie within a very narrow compass.
65. Insofar as the second issue is concerned, the High Court
rejected the contention of the appellant that since the award
suffered from patent or inherent lack of jurisdiction, objection to
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

the award can be taken at the stage of execution without
challenging the award under Section 34 of the 1996 Act. While
rejecting the said contention, the High Court held that the arbitral
proceedings culminating in the award cannot be said to be suffering
from inherent lack of jurisdiction.
*
67. The High Court is correct in answering the first issue that a plea
of nullity qua an arbitral award can be raised in a proceeding under
Section 47CPC but such a challenge would lie within a very narrow
compass.
68. Section 36 of the 1996 Act deals with enforcement of arbitral
awards. Sub-section (1) says that where the time for making any
application to set aside an 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 CPC
in the same manner as if it were a decree of the court. As per sub-
section (2), where an application to set aside an arbitral award has
been filed under Section 34, the filing of such an application shall
not by itself render an award unenforceable unless an order of stay
is granted by the court. Therefore, in terms of Section 36 of the
1996 Act, an award can be enforced in accordance with the
provisions of CPC in the same manner as if it were a decree of a
civil court.
69. Section 47CPC deals with questions to be determined by the
court executing decree. As per sub-section (1), all questions arising
between the parties to the suit in which the decree was passed and
relating to the execution, discharge or satisfaction of the decree
shall be determined by the court executing the decree and not by a
separate suit. Execution of decrees and orders is provided for in
Order 21CPC. The law is well settled that at the stage of execution,
an objection as to executability of the decree can be raised but such
objection is limited to the ground of jurisdictional infirmity or
voidness. The law laid down by this Court in Vasudev Dhanjibhai
Modi v. Rajabhai Abdul Rehman , (1970) 1 SCC 670 is that only a
decree which is a nullity can be the subject-matter of objection
under Section 47CPC and not one which is erroneous either in law
or on facts. The aforesaid proposition of law continues to hold the
field.
70. Objection to execution of an award under Section 47CPC is not
dependent or contingent upon filing a petition under Section 34 of
the 1996 Act. The High Court was not justified in taking the view
that since the appellant did not file a petition under Section 34 of
the 1996 Act, therefore, it was precluded from filing an application
before the executing court to declare the award as void and hence
non-executable.”
(emphasis supplied)

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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25

23. In the present case, the position regarding unilateral
appointment of the learned Sole Arbitrator is not even disputed by the
Decree Holder. Equally undisputed is the absence of any express
waiver in writing, as contemplated under the proviso to Section 12(5)
of the A&C Act. Once the very constitution of the Arbitral Tribunal
stands vitiated by reason of such unilateral appointment, the resultant
Arbitral Award cannot be regarded as a legally enforceable
adjudication in the eyes of law. The defect goes to the very root of
jurisdiction and consequently renders the Impugned Arbitral Award
non est and incapable of enforcement.

DECISION:
24. In view of the aforesaid discussion, and having regard to the
settled legal position in this regard, this Court finds itself unable to
lend its imprimatur to the enforcement of the Impugned Arbitral
Award. The present execution proceedings, being founded upon an
Award which is rendered void and unenforceable in law, cannot be
permitted to continue.
25. Consequently, the present Execution Petition is dismissed as
being incapable of enforcement.
26. The Present Petition, along with pending application(s), if any,
stands disposed of accordingly.



HARISH VAIDYANATHAN SHANKAR, J.
MAY 14, 2026/nd/va
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Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.05.2026
15:35:25