Calcutta High Court
M/S. Simplex Infrastructure Ltd vs Hindustan Steel Works Construction Ltd on 16 July, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
EC No.182 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
M/S. SIMPLEX INFRASTRUCTURE LTD.
Versus
HINDUSTAN STEEL WORKS CONSTRUCTION LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 16th July, 2015.
Appearance:
Mr. Gauri Shankar Gupta, Adv.
Mr. Asif Kumar Bhattacharya, Adv.
Mr. Somnath Gangopadhyay, Adv.
The Court: Although no application has been filed, the defendant judgment debtor has taken the point of maintainability of the execution application on the ground that the said application has been filed beyond a period of 12 years and, accordingly, barred under Article 136 of the Limitation Act. The plaintiff is the award holder. The award was passed under the 1940 Act. The award became enforceable by reason of an order passed by a learned Single Judge of this court in an application for judgment upon award. The judgment upon award was passed on 10th October, 2001. The decree holder soon thereafter filed an application for execution of the said decree. In the said application initially an order was passed on 19th March, 2002 directing the judgment debtor to pay the decretal amount within a period of four weeks from date. The judgment debtor was further directed to file affidavit of assets within a period of fortnight from date. Thereafter, on 27th June, 2002 the time to file affidavit of assets was extended by ten days from that date. It appears from the said order that while the 2 judgment debtor contended that a sum of Rs.7 lakhs was paid in terms of the earlier order the decree holder contended that only a sum of Rs.2 lakhs was received. Considering the rival contention it was observed that whatever amount has been received by the decree holder would be recorded to the protanto satisfaction of the decretal amount and in the event any dispute is raised by the learned lawyer for the decree holder the said shall be communicated to the learned Advocate on Record of the judgment debtor about the receipt of the aforesaid amount. Although the said order records that the execution application has been disposed of but if the said order is read as a whole it would show that the prayer of the judgment debtor to file the affidavit of assets was extended by ten days from date. Such affidavit of assets can only be filed provided a lis is pending. It was an obvious mistake on the part of the Court. In fact, the said execution application is not disposed of by reason of the order passed by the learned Judge directing filing of affidavit of assets by the judgment debtor. Moreover, there is no bar to file successive application for execution. Mr. Bhattacharjee would refer to the decisions of the Hon'ble Supreme Court reported in (2007)2 SCC 230 (Raghunath Rai Bareja and Anr. versus Punjab National Bank and Ors.) and AIR 2001 Supreme Court 279 (Ratansingh versus Vijaysingh) to show that the period of limitation would start from the date when the said decree becomes enforceable. It is held in Ratansingh (Supra) that the decree can become enforceable from future date or happening of certain specific events and filing of appeal does not affect enforceability of a decree unless stay is obtained. The said judgment has no manner of application in the instant case. Similar is the ratio laid down in Raghunath Rai Bareja (Supra). The said documents have no manner of application. Since, in my view, the earlier application has not been disposed of, although it records that the said application is disposed of with liberty to take out fresh execution application, this application shall be treated as a 3 continuation of the earlier application, which in my view is pending otherwise the direction for filing affidavit of assets in the said proceeding would be meaningless. The mistake of the Court shall not prejudice the decree holder.
Under such circumstances, the point of maintainability of the execution application is rejected. The principal officer of the judgment debtor company shall file an affidavit of asset within a period of two weeks from date in form No.16A of Appendix 'E' of the Code of Civil Procedure. The said principal officer shall be present on Court for examination on the returnable date. The matter stands adjourned till 14th August, 2015 and the matter shall appear in the list under the heading 'Examination of Judgment Debtors'.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/