Punjab-Haryana High Court
M/S Tdi Infrastructure Pvt Ltd vs Seema Monga And Anr on 24 August, 2023
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
VIMAL KUMAR 2023:PHHC:111814 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-4872-2023 (O&M) Date of Decision: 24.08.2023 M/s TDI Infrastructure Pvt. Ltd. ...Petitioner Versus Seema Monga & another ...Respondents CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL Present: Mr. Munish Gupta, Advocate, for the petitioner. GURVINDER SINGH GILL, J.
The instant revision petition has been filed on behalf of the petitioner invoking powers of Article 227 of the Constitution of India for setting aside order dated 29.04.2023 (Annexure P-11) passed by learned Additional District Judge, Sonepat during the course of execution proceedings arising out award dated 29.05.2018 (Annexure P-4).
A few facts, necessary to notice, are that the respondents had been allotted a flat measuring 1625 sq. ft. in the integrated township 'TDI City' at Kundli, Sonepat (Haryana) and in respect of which an agreement was executed between the respondents as well as the petitioner. However, a dispute having arisen with respect to the delivery of possession of the said flat, the matter was referred to an Arbitrator, who delivered his award dated 29.05.2018 (Annexure P-4), the operative portion of which reads as under:
2023.08.25 18:38 | attest to the accuracy and authenticity of this document (2) CR-4872-2023 (O&M) "Issue No.2: The petitioner is entitled for restoration of allotment and handing over of the possession of the Flat No.F-2-0604 at TDI City, Kundli, Sonepat, Haryana. The aforesaid process be completed within a period of 60 days from the date of passing of the Award. Issue No.3: The Respondent is entitled to additional demand as claimed by them vide different letters before handing over the peaceful possession of the Flat to the Claimant, but only after their providing the Document No.(i) to (vi), as mentioned in Para C of the statement of relief claimed by the claimant in the statement of claim. The complete break-up of the amount demanded along with their justification is to be provided to the Claimant. This has to be done within 10 days of the passing of the Award. The Claimant shall thereafter deposit the requisite amount with the Respondent within a further period of 15 days. Issue No.4: Petitioners are entitled to damages @ Rs.10,000/- per month only along with the interest @ 9% per annum w.e.f. February, 2012 till the date of realization."
3. Thereafter, the respondents filed execution application, wherein objections were raised on behalf of the JD/petitioner, which were dealt with and disposed of vide order dated 19.05.2022 (Annexure P-8). The concluding para o "A. VIMAL KUMAR 2023.08.25 18:38 | attest to the accuracy and f the said order reads as under:
The award of the arbitrator is acceptable to both the parties because there are no objections under Section 34 of the Arbitration and Conciliation Act. The only issue is with regard to implementation of the award. The learned counsel for the decree holders has given the name of his Chartered Accountant as Ankur Gupta, FRN : 026405N membership No.529840 mobile No.9899487267 address No.205, East Azad Nagar, Street No.8, Delhi 110051 whereas the learned counsel for the judgment debtors has given the name of his Chartered Accountant as Ankit Rajesh & Associates, Shop No.25 (backside) Gur Mandi, Opp. Jain Sthanak, Sonipat 131001 are appointed to calculate the damage and interest due against the judgment debtor as per award fees of both the C.As. is assessed as Rs.5000/- to be paid by the judgment debtor and the C.As. can be asked to authenticity of this document (3) CR-4872-2023 (O&M) sit together by both the Decree holders as well as by the judgment debtor by sharing their mobile numbers and as per their convenience as time and place before the date fixed and the warrant of possession of the flat be issued by appointing Bailiff with the help of police if required, and this process be complied within three months from the date of passing of this order. Copy of this order be sent to the SHO of the concerned area for ensuring the strict compliance.
To come upon 31.08.2022 for awaiting compliance report."
4. Pursuant to the aforesaid order dated 19.05.2022 (Annexure P-8), the matter was taken up again upon receipt of reports of the respective CAs, wherein the petitioner raised an issue of interest, which according to him the petitioner was due to receive. Learned Executing Court, however, turned down the said contention vide impugned order dated 29.04.2023 (Annexure P-11) while observing that the Award did not provide for any interest given to the JD/petitioner while deciding Issue No.3. The operative portion of the impugned order dated 29.04.2023 (Annexure P-11) is reproduced hereinunder:
"5.
VIMAL KUMAR 2023.08.25 18:38 | attest to the accuracy and Now, the judgment debtor is unnecessarily resisting the claim of the claimants without challenging the arbitral award. It is also clear that no interest was given to judgment debtor while deciding issue No.3 by the Arbitrator. Therefore, the orders appointing Chartered Accountant of both the parties by the court by concealment of facts either by the decree holder or by the judgment debtor are hardly of any consequence and are beyond the ambit of arbitral award. Therefore, the calculation made by the Chartered Accountants of both the parties which are contrary to the arbitral award cannot be considered by the executing court because the executing court cannot go behind the decree.
Section 47 of CPC runs as under:-
47. Questions to be determined by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was authenticity of this document (4) CR-4872-2023 (O&M) passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation 1.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section."
Therefore, the judgment debtor is directed to hand over the vacant possession of the plot as mentioned in the Arbitral Award to the decree holders alongwith damages as per issue No.4 on calculation, within one month from today on adjustment of additional demand of Rs.7,68,005.14 from the damages as awarded by the learned Arbitrator alongwith damages. Case to come upon 07.07.2023 for awaiting the compliance report as none of the parties has appeared today, therefore, they be informed accordingly."
5. A perusal of the Award dated 29.05.2018 (Annexure P-4) indeed shows that while passing orders in respect of Issue No.3 i.e. the claim of the petitioner with respect to additional amount, there is no specific mention about awarding of interest, whereas while deciding Issue No.4 i.e. claim of the respondents towards damages, the same has been allowed alongwith interest w.e.f. February, 2012.
6. Having regard to the totality of the facts & circumstances particularly the terms of the Award dated 29.05.2018, wherein there is no specific direction VIMAL KUMAR 2023.08.25 18:38 | attest to the accuracy and authenticity of this document (5) CR-4872-2023 (O&M) for payment of interest to the petitioner on the additional amount stated to be due and the fact that the respondents have been made to run from pillar to post so as to get possession of their flat, which till date has not been handed over to them, this Court does not find any infirmity in the impugned order dated 29.04.2023 (Annexure P-11), which may warrant any interference by this Court and the same is hereby affirmed. The petition is accordingly dismissed.
7. The Executing Court to take necessary steps for expediting and concluding the execution proceedings.
24.08.2023 (GURVINDER SINGH GILL) Vimal JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No VIMAL KUMAR 2023.08.25 18:38 | attest to the accuracy and authenticity of this document