Bombay High Court
Pluto Shipping Ltd vs Dharti Dredging And Infrastructure Ltd on 15 November, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
30-IA-985-2022.doc
Digitally
signed by
GANESH
GANESH SUBHASH
SUBHASH LOKHANDE
LOKHANDE Date:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
2022.11.17
14:53:11
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 985 OF 2022
IN
COMMERCIAL EXECUTION APPLICATION NO. 62 OF 2021
IN
ARBITRATION AWARD DATED 19th NOVEMBER, 2020
Pluto Shipping Limited .. Applicant
IN THE MATTER BETWEEN:
Pluto Shipping Limited .. Applicant/Claimant
Vs.
Dharti Dredging & Infrastructure Ltd. .. Respondent
Sudeshkumar Naidu i/b. C. R. Naidu & Co. for the Applicant.
CORAM:- B. P. COLABAWALLA,J.
DATE :- 15th NOVEMBER, 2022.
P. C.:
1. This Interim Application under Sections 39 & 40 read with order XXI Rules 5, 6 & 8 of the Code of Civil Procedure Code, 1908 for transferring the Award passed by the Ld. Sole Arbitrator [Mr. Justice Vijay C. Daga (Retd.) ] dated 19th November, 2020 for execution in the Ganesh Lokhande page 1 of 6 30-IA-985-2022.doc same manner as if, it were a Decree of this Court.
2. The reliefs sought in the above IA read thus :
"(a) Order and Direct for transfer of the Award/Decree, under Section 39 and Section 40 r/w Order XXI Rule 5, 6 & 8 of CPC, to the Hon'ble Chief Judge/Addl. Chief Judge, City Civil Court, Hyderabad, Begumpet, Telangana State - 500016 for the limited purpose of execution of the said Award/Decree for attachment & sale of moveable & Immovable properties belonging to the Respondent as set out in Para 23 above, lying/situate within the jurisdiction of the Hon'ble Chief Judge/Addl. Chief Judge, City Civil Court, Hyderabad and transmit the sale proceed to the Applicant under Order XXI Rule 64;
(b) Such other and further orders or grant reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case;
(c) Ad-interim / Interim reliefs in terms of prayers (a) to (d) hereof;
(d) Costs of this Interim Application may be granted."
3. The Applicant, post the Award dated 19th November, 2020, filed Arbitration Petition (L) No.2646 of 2021, under Section 9 of the Arbitration & Conciliation Act, 1996 (for short `Act') seeking disclosure of assets, moveable as well as immovable, owned by the Respondent Ganesh Lokhande page 2 of 6 30-IA-985-2022.doc (Judgment Debtor). This Court, by Orders dated 18 th March 2021 and 1st April 2021, ordered the Respondent to file copies of audited balance sheet, Profit & Loss Account and Returns for last three Financial years and further disclose on oath all properties and status of those properties including encumbrances, if any.
4. In compliance of the said Orders the Respondent filed an Affidavit affirmed on 6th April 2021, disclosing the particulars of movable and immovable properties and tendering copies of the audited balancesheet, profit and loss account, and income tax returns of the Respondent company for the financial years 2017-18, 2018-19 and 2019-
20.
5. The Respondent company also preferred Arbitration Petition (L) No. 8847 of 2021 under Section 34 of the Act for setting aside the Award. By Interim Application (L) No. 8993 of 2021 preferred therein, the Respondent sought stay of the Award. By order dated 28th April 2021, this court was pleased to stay the Award on the condition that the Respondent company deposit in this court a sum of Rs.1.5 Crores or furnishing a Bank Guarantee for the said amount by any Nationalised Bank in favour of the Prothonotary & Sr. Master of this Court within 6 weeks from date of the said order.
Ganesh Lokhande page 3 of 6
30-IA-985-2022.doc
6. The Master and Asstt. Prothonotary (Judicial) of this Court vide Certificate dated 4th August 2021 certified that the Respondent Company has neither deposited the said sum of Rs.1.5 Crore nor furnished a Bank Guarantee in terms of the said Order. Considering provisions of Section 36 of the Act the Award has become enforceable.
7. A perusal of the Affidavit of disclosure reveals that the Respondent Company has only one Bank Account maintained with ICICI Bank, Nariman Point Branch, within the jurisdiction of this Court. The said bank account was attached and as per the Report of the Bailiff the said account is dormant and a sum of Rs.92,000/- is lying to the credit of the said account. The bailiff has attached the said account on 21st February 2022.
8. The Award is a monetary Award in the sum of Rs.1,48,73,704/- (Rupees one crore forty eight lacs seventy three thousand seven hundred four only) with interest @7.5% per annum from the dates as set-out in para 219 of the Award and further interest @ 7.5% per annum from the date of award till the date of payment.
Ganesh Lokhande page 4 of 6
30-IA-985-2022.doc
9. The awarded amount has not been paid till date. The amount lying in the Bank Account of Respondent, within jurisdiction of this Court, is not sufficient to satisfy the awarded amount. A perusal of the Affidavit of Disclosure reveals that the Respondent company has no other asset (moveable or immovable) within jurisdiction of this Court but has substantial assets (both moveable and immovable) in Hyderabad, Telangana.
10. I am satisfied that this is the fit case for transferring the award to a Competent Civil Court at Hyderabad, Begumpet, Telangana State - 500016 for executing the Award as a decree of this court and recovering and transmitting to this court the amounts realised on execution to the credit of the Execution Application.
11. In these circumstances, the Interim Application is made absolute in terms of prayer clause (a) above.
12. The Prothonotary & Sr. Master of this court is directed to transmit a certified copy of this Order to the Chief Judge, City Civil Court, Hyderabad, for execution and realisation of the Awarded amount alongwith :
Ganesh Lokhande page 5 of 6
30-IA-985-2022.doc
(a) a certified copy of Award;
(b) certificate setting forth that satisfaction of the Award has
not been obtained by execution within the jurisdiction of this court and the entire Award amount remains unsatisfied;
13. The Interim Application is disposed off in the aforesaid terms. No order as to costs.
14. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Ganesh Lokhande page 6 of 6