Madhya Pradesh High Court
M.P. Power Generation Com. Pvt. Ltd. vs Ansaldo Energia Sps on 13 July, 2015
13.7.2015 W.P. No. 9301/15
Mr. Ravish Agrawal, learned senior counsel with Mr. Akshay
Pawar, counsel for the petitioners.
Mr. Nahaush Shah, learned counsel with Mr. Manoj
Sharma, counsel for the respondent.
With consent of the parties, the matter is heard finally.
In this writ petition under Article 227 of the Constitution of
India, the petitioners have assailed the validity of the order dated
19.6.2015 passed by the Executing Court.
Facts giving rise to filing of the writ petition briefly stated
are that an Award dated 23.9.2004 was passed by the Arbitral Tribunal in favour of the respondent. Being aggrieved, the petitioners filed an application under Section 34 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as 'the Act') which was allowed by the trial Court vide order dated 4.10.2008. Being aggrieved by the aforesaid order, the respondent preferred an appeal under Section 37 of the Act, which was allowed vide order dated 20.8.2013. Against the said order, the petitioners preferred an appeal before the Supreme Court in which notices have been issued vide order dated 17.2.2014. The respondents filed an application for execution of the Award before the District Judge, Jabalpur in which a sum of Rs.1,25,28,44,907/- was claimed. The notices were issued to the petitioners for their appearance before the Executing Court on 13.1.2015. The petitioners preferred an application before the Executing Court under Section 47 of the Code of Civil Procedure read with proviso to Rule 17 of Order 21 and Order 21 Rule 23(2) of the Code of Civil Procedure in which inter- alia it was pleaded that the Executing Court is obliged to ascertain the correct decreetal amount as required under Rule 186 of the M.P. Civil Court Rules. 1961. The petitioners also filed an application under Section 151 of the Code of Civil Procedure seeking stay of execution proceeding during the pendency of the Special Leave Petition before the Supreme Court. The respondent did not file any reply to the applications submitted by the petitioners. The Executing Court vide order dated 19.6.2015 inter-alia directed the decree holder that in case the objection preferred by the judgment debtor i.e. the petitioners is justified, the respondent can file an application for amendment. The respondent was directed to furnish the details of the bank account of the petitioners. In the aforesaid factual background, the petitioners have approached this Court.
Learned senior counsel for the petitioners while inviting the attention of this Court to the provisions of proviso to Rule 17 of Order 21 and Order 21 Rule 23(2) of the Code of Civil Procedure as well as Rules 186, 188, 189 and 190 of the M.P. Civil Court Rules, 1961, has submitted that the impugned order has been passed by the Executing Court in violation of the aforesaid provisions. It is further submitted that two sums awarded by the Arbitrator carry interest from different dates, however, same have not been specified in the application for execution. It is also submitted that under Rule 186 of the M.P. Civil Court Rules, 1961, the Court should see that required particulars are distinctly and completely set down.
On the other hand, learned counsel for the respondent while inviting the attention of this Court to the Award passed by the Arbitrator, submitted that the respondent has mentioned the particulars of sums together and interest component separately. It is further submitted that the order passed by the Executing Court does not suffer from any error apparent on the fact of record warranting interference of this Court in exercise of power under Article 227 of the Constitution of India.
I have considered the respective submissions made by learned counsel for the parties. Proviso to Rule 17(1-A) of Order 21 contemplates that where in the opinion of the Court there is some inaccuracy as to the amount referred to in Clause (g) and (h) of sub- rule (2) of Rule 11, the Court shall decide provisionally without prejudice to the right of parties to have the amount finally decided and make an order for execution of the decree for the amount so provisionally decided. Order 23 Rule (2) mandates that where a person to whom notice is issued under Rule 22, offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.
Rule 186 of M.P. Civil Court Rules 1961 reads as under:-
"186. In dealing with application for execution the attention of the Courts is invited Rules 11 (2), 12 and 13 of Order XXI, Civil Procedure Code, which lay down the particulars to be included in such applications. The Courts should see that the required particulars are distinctly and completely set down and should not grant any relief not specifically mentioned in the application. In particular, interest, if any subsequent to the decree should be correctly calculated and the total amount for which execution is prayed should be clearly stated. If possession is sought the kind of possession desired should appear; and if actual possession is sought it should appear that the judgment debtor or some one bound by the decree is in actual possession".
Thus Rule 186 requires the Court to ensure that required particulars are distinctly and completely set down and interest if any subsequent to the decree should be correctly calculated and total amount for which execution is prayed should be clearly stated. Rule 190 of the rules requires the Court to adjudicate the amount.
In the backdrop of aforesaid provisions, facts of the case may be seen. In the instant case, from perusal of the Award, it is evident that two different sums have been granted in favor of respondent with interest from different dates. In the application for execution, the respondent has mentioned the principal amount together and the interest together. In other words required particulars are not distinctly and completely set down as required under Rule 186 of the Rules.
The petitioners in their application under Order 21 Rule 27 and Order 21 Rule 23(2) have disputed the decreetal amount mentioned by the respondent in the application, and have clearly stated that it requires adjudication. As stated supra the executing Court in the instant case did not appreciate that application for execution was not in conformity with Rule 186 and failed to consider and decide the objection as mandated under Order 21 Rule 23(2) of the Code of Civil Procedure and even has failed to decide the amount provisionally as required under proviso to Rule 17(1-A) of Order 21 of the Code while passing the impugned order. The impugned order passed by the executing Court suffers from patent perversity and while passing the impugned order, the executing Court has failed to exercise the jurisdiction vested in it by law. The impugned order passed by executing Court thus suffers from not only error apparent on the face of record, but jurisdictional infirmity as well. See: Shalini Shyam Shetty and another Vs. Rajendra S. Patil, (2010) 8 SCC 329 and Jai Singh and others Vs. Municipal Corporation of Delhi and others , (2010) 9 SCC 385.
In view of the preceding analysis, impugned order cannot be sustained in the eye of law. It is accordingly quashed. The executing Court is directed to proceed with the execution bearing in mind the provisions contained in Order 21 Rule 17(1-A), Order 21 Rule 23(2) and Order 21 Rule 27 of the Code of Civil Procedure as well as Rules 186,189 and 190 of M.P. Civil Court Rules 1961.
With the aforesaid direction the writ petition stands disposed of.
C.C. as per rules.
(Alok Aradhe) Judge a