IN THE HIGH COURT OF ORISSA AT CUTTACK W.A No.1677 of 2025 & W.A. No.1856 of 2025 In the matter of appeals under Section 10 of the Letter Patent of the Patna High Court, read with Article-4 of the Orissa High Court Order, 1948. …. M/s. Adarsh Noble Corporation Limited, represented through its Managing Director- Manmath Kumar Acharya (In WA Nos.1677 & 1856/2025) …. Appellants -versus- Indian Oil Corporation Ltd & another (In WA Nos.1677 & 1856/2025) …. Respondents Advocates Appeared in this case For Appellants - M/s.Sidharth S. Padhy, G.M.Rath, P. Mohanty, M.A. Bohidar, S. Patnaik & S. Mohapatra, Advocates in both WAs For Respondents - M/s.Abhishek Birthray, Sunil J. Mathew, Chandan Sharma, A. Mishra & S. Biswal, Advocates on caveat in both WAs …. CORAM HON’BLE MR. JUSTICE KRISHNA SHRIPAD DIXIT HON’BLE MR. JUSTICE CHITTARANJAN DASH ---------------------------------------------------------------------------------------- Date of Hearing : 11.02.2026 : Date of Judgment : 12.02.2026 ---------------------------------------------------------------------------------------- PER KRISHNA S. DIXIT,J. Appellant-Company has preferred these two intra-Court appeals calling in question two orders made by a learned Single Judge of this Court in two writ petitions filed by the Respondents. In W.P.(C) No.30966/2024, the challenge was to the arbitration Award dated 10.07.2023 entered by the Facilitation Council, Cuttack in MSEFC Case No.56/2022. This petition was allowed on 20.09.2025. In W.P.(C) No.20210/2025, the challenge was to the three orders dated 24.09.2024, 19.06.2025 & 14.07.2025 whereby Respondents’ resistant to execution came to be rejected. 2. FOUNDATIONAL FACT MATRIX. 2.1. Respondents had awarded a construction work at Paradip Refinery to the Appellant vide LOA dated 29.11.2017. Contract value was Rs.20,86,26,058.50 & contract period was 18 months reckoned from the date of LOA. There were certain issues relating to accomplishment of work. The contract was terminated vide letter dated 13.12.2018 and the work was entrusted to another contractor. This eventually resulted into Appellant filing MSEFC Case No.56/2022 u/s 18 of the Micro, Small and Medium Enterprises Development Act, 2006. He had sought an Award for a sum of Rs.6,65,97,975/- towards principal amount with interest accruing thereon. 2.2. After service of notice, the Respondents entered appearance in the arbitration proceeding and filed their Written Statement. Issues were framed and evidence was led. The Facilitation Council entered the subject Award for a sum of Rs.2,43,14,318/- along with future compound interest at commercial rates as have been notified by the RBI. Appellant had filed Exe. Petition No. 585/2023 before the Commercial Court, Bhubaneswar. The Respondents on 02.09.2024 filed objections u/s. 47 of CPC, 1908 to resist the execution on the ground that Award was a nullity. They were negatived vide order dated 24.09.2024. They had also urged as to non-executability of the Award on account of its being not stamped and that contention was rejected by the Executing Court vide order dated 19.06.2025. These two orders were challenged by the Respondents in W.P.(C) No.20210/2025. They had also filed ARBP No.11/2024 u/s 34 of the Arbitration & Conciliation Act, 1996. It was on 28.03.2024. Subsequently, this was unconditionally withdrawn on 21.10.2024. On 26.11.2024, respondents filed W.P.(C) No.30966/2024 under Articles 226 & 227 of Constitution of India laying a challenge to the Award dated 20.09.2025. This has been allowed by the learned Single Judge. Appellant has preferred Writ Appeal No.1677/2025 for laying the challenge to the impugned order dated 20.09.2025 whereby arbitration Award has been set at naught. His companion case in Writ Appeal No.1856/2025 calls in question the orders of Executing Court whereby objections of the Respondents have been turned down vide order dated 22.09.2024. These appeals having contiguous fact matrix are placed at our hand. 3. CONTENTIONS OF PARTIES. 3.1. Learned counsel for the Appellant vehemently argues that the learned Single Judge has grossly erred in quashing the arbitration Award and the orders of Executing Court, inasmuch as at no point of time, the Respondents had pleaded before the statutory Arbitration Council that it had no jurisdiction over the matter; the Respondents having challenged the Award u/s 34 of A and C Act, 1996; the challenge was not on the ground of lack of jurisdiction; subsequently, they unconditionally withdrew the challenge; it was not open to the learned Single Judge to set at naught orders of the Executing Court, which had turned down objections of the Respondents to the enforcement of the Award. Counsel highlights the culpable conduct of the Respondents. Per contra, learned counsel appearing for the Respondents makes fervent submission in support of the impugned orders and the reasons on which they have been structured. His essential contention is that the arbitral dispute admittedly had involved works contract and therefore, the Facilitation Council lacked jurisdiction to entertain the claim and thus, the Award is nullity and non est. 4. Having heard counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter as under and for the following reasons: 4.1. Appellant was the contractor and his contract had been terminated eventually resulting into him filing MSEFC Case No.56/2022 u/s 18 of MSMED Act, 2006. Respondents having entered appearance through their counsel, had filed Written Statement wherein lack of jurisdiction over the subject matter, was not a plea. Battle lines came to be drawn on the basis of pleadings. Evidence was led and Award was made on 10.07.2023. It is not in dispute that the Appellant happens to be an MSME entity. Had the plea of lack of subject matter jurisdiction been raised, the Appellant would have answered the same and that the Facilitation Council would have treated it in its accumulated expertise. This apart, whether the contract in question was a ‘works contract’ or otherwise is essentially a question of fact on which parties could lead evidence. That being the position, it was not open to the Respondents to contend that the Award was a nullity and therefore, that plea can be set up wherever the Award is sought to be executed. The Apex Court decision in A.V. Parayya Sastri v. Government of A.P., (2007) 4 SCC 221 could not come to the rescue of Respondents since it was a case of demonstrable fraud. At paragraphs-21 & 22, it is observed as under: “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: "Fraud avoids all judicial acts, ecclesiastical or temporal." 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.” It hardly needs to be stated that a decision is an authority for the proposition that is laid down in a given fact matrix, and not for all that which logically follows from what has been so laid down vide Lord Halsbury in Quinn v. Letham, [1901] AC 495 (HL). 4.2. Respondents had filed ARBP No.11/2024 u/s 34 of the A and C Act, 1996. Learned counsel appearing for the Respondents very fairly stated that the ground of lack of jurisdiction was not taken up in this challenge. Subsequently, they unconditionally withdrew the said challenge on 21.10.2024. Here too, they had not taken up the plea that the Award itself was a nullity and therefore, they were withdrawing the challenge. Nor had they sought liberty to take up plea of the kind before the Executing Court. However, they resisted execution of the Award on the ground of lack of jurisdiction merely on the basis of a stray sentence in the pleadings of the Appellant, before the Facilitation Council. In the pleadings, it is averred „the respondents have utilized the supply and execution of work‟ . That is not the way pleadings of parties should be construed. In fact, such a construction was not placed on the said sentence when the Respondents had filed their Written Statement or in their challenge to the Award u/s. 34 of the A and C Act, 1996. It was Aristotle who said „one single swallow makes not the summer‟ in Nicomachean Ethics. The same applies to the case of Respondents. Page 7 of 10 4.3. It hardly needs to be stated that where jurisdiction of a Court or Tribunal depends upon fact matrix, the party resisting the claim on the ground of lack of jurisdictional facts, has to plead it adequately and with fair degree of certainty. In the Written Statement filed by the Respondents in the Arbitral Proceedings, not even a whisper is made in this regard. Jurisdiction is one thing and jurisdictional facts are another. To put it in other way, one can say that, absence of jurisdiction makes its exercise non-productive and therefore Award/order in such circumstance would be a nullity/non est. However, the question of absence of jurisdictional facts stands on a different footing. Such absence cannot be inferred by a litigant by his self-judgment, despite suffering an adverse order. The remedy provided by Special Law has to be invoked for invalidation of such order. Respondents in fact had invoked Sec. 34 of A and C Act 1996, rightly. Sub-Section 3 of this Section prescribes a specific period of limitation. The said challenge came to be unilaterally withdrawn without mentioning that the Award was a nullity. Has the ground of nullity been mentioned in the application for withdrawal of challenge, different considerations would have arisen. The Appellant had neither occasion nor opportunity to have his say on that aspect of the matter. Tribunal too did not have. The proposition that, where an Award is a nullity, its enforcement can be resisted even in collateral proceedings, is too broad to be accepted. It is not that nullity cannot be a ground for laying a challenge u/s 34, to the Award. Page 8 of 10 Even in cases wherein invalidity is plainly visible, the Apex Court has taken the view that challenge has to be mounted. 4.4. The Apex Court in State of Punjab v. Gurdev Singh, AIR 1992 SC 111, has observed as under: “…the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at 769 Lord Redcliffe observed: "An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its fore- head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the deci- sion of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles: "The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."… The above observations should be a complete answer to the question of jurisdiction raised by learned counsel appearing for the Respondents. 4.5. The conduct of the Respondents who happen to be an entity under Article 12 of the Constitution of India falls short of fairness standards obtaining in the realm of Public Law, to say the least. It did not take up the plea of lack of jurisdiction in the Arbitration proceedings before the Facilitation Council nor before the Commercial Court when Award was challenged u/s. 34 of the A and C Act, 1996. Nor did they tell the said Court whilst withdrawing the said challenge. Added, they had not sought for liberty at the hands of the Commercial Court, to take up such a plea in the Execution Proceedings. Article 12 entity has to conduct itself as a model litigant vide Dilbagh Rai Jarry v. Union of India, AIR 1974 SC 130. It cannot play the nefarious game of hide & seek in the legal battles. The culpable conduct of Respondents in delaying the payment under the Award is calculated to defraud the Appellant who has secured a just result at the hands of statutory arbitral authority. The culpable conduct disentitles them to go scathe-free. They were not entitled to any relief at the hands of learned Single Judge in writ jurisdiction. 4.6. The above aspects have not been considered by the Writ Court while examining the claim of Respondents, who happened to be petitioners before the learned Single Judge. That has occasioned enormous injustice to the Appellant. Thus, the impugned orders suffer from errors apparent on their face warranting interference in these appeals for setting the injustice at naught. 4.7. The other contention of learned panel counsel appearing for Respondents that the impugned order is made by the Single judge only u/a 227 as distinguished from Art. 226 of the Constitution of India and therefore, intra-court appeal is incompetent, does not merit acceptance. The subject Writ Petitions were filed by invoking both the Articles. The very impugned orders on their forehead mention both these Articles. Even the subject matter of the dispute by its very nature attracts Art. 226. The finding of Executing Court that the Award does not require any stamping under the provisions of the Indian Stamp Act, 1899 is not demonstrated to be wrong. Which provision of the said Act makes Award of the kind to be stamped, is not particularized. In the above circumstances, these appeals succeed; the impugned orders of the learned Single Judge are set at naught; Respondents’ W.P.(C) No. 30966/2024 & W.P.(C) No. 20210/2025 being devoid of merits are dismissed with a cost of Rs.50,000/- (Rupees Fifty Thousand) only to be remitted to the Appellants within eight weeks. The Executing Court shall accomplish the execution process within an outer limit of six months vide Periyammal v. V. Rajamani, 2025 INSC 329. Web copy of the judgment to be acted upon by all concerned. (Krishna Shripad Dixt) Judge (Chittaranjan Dash) Judge Orissa High Court, Cuttack The 12th day of February 2026/Basu Designation: ADDL. DY. REGISTRAR-CUM-ADDL. PRINCIPAL SECRETARY