Bombay High Court
Global Asia Venture Company vs Arup Parimal Deb And 3 Ors on 4 April, 2019
Author: G.S. Patel
Bench: G.S. Patel
912-COMEX58-17.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM EXECUTION APPLICATION NO. 58 OF 2017
WITH
CHAMBER SUMMONS NO. 706 OF 2017
WITH
CHAMBER SUMMONS NO. 66 OF 2016
Global Asia Venture Company ...Decree Holder
Versus
Arup Parimal Deb & Ors ...Judgment Debtors
Mr Sharan Jagtiani, with Vyapak Desai and Siddharth Rathod, i/b
Nishith Desai Associates, for the Applicant.
Mr Gaurav Joshi, Senior Advocate, with Ms Jyoti Sinha, Mr D
Nath & Pratiksha Basarkar, i/b Khaitan & Co, for Judgment
Debtors.
CORAM: G.S. PATEL, J
DATED: 4th April 2019
PC:-
1. The Award Holder, Global Asia Venture Company obtained
an arbitral award dated 28th January 2015. This was amended on
16th February 2015. A challenge Petition by the Award Debtors
under Section 34 of the Arbitration and Conciliation Act 1996,
failed. It was dismissed by SC Gupte J with costs. I am told that the
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Award Debtors have filed an Appeal, but that does not yet seem to
have been served. In any case there is no stay on execution.
2. In the meantime it seems that the Award Debtors carried to
the Supreme Court a challenge against interim orders seeking a stay
on execution of the award. On 13th October 2017, the Supreme
Court directed the Award Debtors not to alienate their assets except
in the ordinary and usual course of business. The execution
proceedings were held in abeyance till then and obviously this has
continued pending the final disposal of the challenge Petition under
Section 34.
3. On 18th April 2018 RD Dhanuka J continued this order. That
order was not continued after the Section 34 Petition was finally
dismissed on 11th December 2018. I propose to reinstate that order
in those very terms for a limited period of time in these execution
proceedings. The reason is that the execution proceedings are now
opposed on a jurisdictional issue. Mr Joshi for the Award Debtors
says that there being no application for the appointment of a
Receiver in execution, no execution can proceed against the Award
Debtors Nos. 1, 2 and 4 since they all are outside the territorial
jurisdiction of this Court. Only the 3rd Award Debtor is in Mumbai.
His submission is that an order of disclosure is also an order in
execution and cannot be made by this Court.
4. There is an answer from Mr Jagtiani to the effect, first, that
an order of disclosure is not in itself an order in execution but an
order effecting a step in aid of execution, conceptually a very
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different thing. Second, he also urges that if under Section 9 of the
Arbitration and Conciliation Act, the Award Holder could get
protective relief including a Receiver and an order of disclosure until
the Award is enforced (which, in his submission, means until the
decretal claim is satisfied), then there is no reason why the remedies
available to the Award Holder in execution should be any less or
narrower.
5. There is a similar question raised in another matter that I
have listed on 25th April 2019. I am not inclined to hear the same
arguments repeatedly in different matters. Hence although the
matters are distinct, given that they both raise a common question
of law, list them together on 25th April 2019, at 3.00 pm.
6. In the meantime the foregoing injunction will continue to
operate, that is to say the Respondents will not deal with, dispose of,
alienate or part with possession of their assets except in the ordinary and usual course of their business.
7. As regards the 3rd Judgment Debtor, there can be no opposition to an order of disclosure against him. He will be required to make a complete disclosure of all its assets both movable and immovable fully particularised showing, in the case of immovable properties, all particulars of title, location and securities or encumbrances created on those properties. As regards movables, the disclosure will list all items of the acquisition or replacement value of Rs. 1 lakh. The Disclosure Affidavit will also contain a statement of all bank accounts with current balances, and will have Page 3 of 4 4th April 2019 ::: Uploaded on - 05/04/2019 ::: Downloaded on - 06/04/2019 02:27:52 ::: 912-COMEX58-17.DOC annexed all bank statements for the last 12 months and income tax returns for the last three years. The Disclosure Affidavit is to be filed and served on or before 24th April 2019.
8. Leave to Award Holders to amend the execution application without need of reverification which includes a prayer for appointment of a Receiver in execution. It goes without saying that no Receiver can be appointed in execution without a proper application by way of a Chamber Summons.
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