Karnataka High Court
M/S Tpc Techno Power Corporation Llp vs M/S Continental Engineering on 5 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION No. 12470 OF 2022 (GM-CPC)
BETWEEN:
M/S TPC TECHNO POWER CORPORATION LLP
NO.342B, 9TH CROSS, 4TH PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU 560058,
REPRESENTED BY ITS PARTNER
M/S SKILL TECH ENGINEERS AND
CONTRACTORS PVT LTD,
A LIMITED LIABILITY PARTNERSHIP,
BY ITS DESIGNATED PARTNER.
PETITIONER
(BY SRI.NAVEEN G.S, ADVOCATE)
AND:
M/S CONTINENTAL ENGINEERING
CORPORATION, FLAT NO 211,
A PROPRIETORSHIP CONCERN,
POCKET A/3, SECTOR 7 ROHINI,
NEW DELHI 110085.
ALSO AT
7TH FLOOR, TOWER B,
SIGNATURE TOWERS,
SECTOR 29, NH 8, GURGAON 122002.
RESPONDENT
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH OR
SET ASIDE THE ORDER DATED 21.04.2022 U/O 21 RULE 26
AND SECTION 47 OF CPC 1908 IN EXECUTION PETITION
NO.1976/2017 ON THE FILE OF THE 69TH ADDL. CITY CIVIL
JUDGE (CCH-70) AT BENGALURU PRODUCED AT ANNX-F AS
WELL AS THE CRYPTIC ORDER OF ALLOWING THE APPLICATION
UNDER ORDER XXI RULE 22 DATED 21.04.2022 WHICH FORMS
THE PART OF THE ORDER SHEET PRODUCED AT ANNX-G AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the petitioner/Judgment Debtor against the common order dated 21-04-2022 passed by the Executing Court in Execution Petition No.1976/2017 on an application filed under Order 21 Rule 26 read with Section 151 of CPC and also on an application filed under Section 47 of CPC.
2. The captioned writ petition assailing the order under Section 47 CPC is not maintainable. Petitioner cannot approach and knock the doors of Writ Court under Article 227. He has a efficacious 3 remedy under Section 115 of CPC and therefore, writ petition is dismissed insofar as order dated 21-4-2022 passed on an application filed under Section 47 of CPC.
3. In the event, petitioner files a revision petition within a period of four weeks from the date of receipt of the order copy, petitioner is entitled for the benefit under Article 14 of Limitation Act.
4. Insofar as, order on an application filed under order 21 Rule 26 read with Section 151 CPC is concerned, this Court is of the view that the grounds urged in the writ petition does not displace the conclusion and reasons assigned by the Executing Court while rejecting the application filed under order 21 Rule 26. If the arbitral award has attained finality and if there is no challenge to the said arbitral award, 4 the Judgment Debtor cannot resist execution proceedings by seeking stay of the proceedings.
5. If the application filed by present petitioner under Section 47 of CPC is adjudicated and rejected, then it is well within the jurisdiction of Executing Court to proceed and permit Decree Holder to execute the arbitral award which is in his favour. Therefore, I do not find any error in rejecting the application filed under order 21 Rule 26 CPC. If the arbitral award has attained finality, Decree Holder is entitled to proceed and execute the arbitral award in accordance with law.
6. The present petitioner/Judgment Debtor has also questioned the order of the Executing Court passed on an application filed under Order 21 Rule 22 CPC, wherein the Executing Court has proceeded to issue attachment warrant of moveable against Judgment Debtor. The grievance of the petitioner is 5 that, he was not heard in the matter before issuing attachment warrant.
7. Based on arbitral award, Execution Petition is filed in the year 2017 which is within two years. Therefore, there is no mandate to notify Judgment Debtor before issuing attachment warrant. Petitioner's grievance is that, he is not furnished with the arbitral award. His contention is that, the arbitral award is secured by respondent/Decree Holder by playing fraud on the Arbitrator. He would however point out that the arbitral award which is furnished before the Executing Court is incomplete and therefore, the Execution proceedings are not at all maintainable.
8. All these disputed questions cannot be examined and there cannot be any roving enquiry in regard to validity of the arbitral award and such a 6 recourse is not available in writ jurisdiction and cannot be exercised under Article 226 of Constitution of India.
9. With the above observations, the writ petition is dismissed.
Sd/-
JUDGE tsn*