Back
2010 Supreme(Mad) 3395
High Court of Judicature at Madras
G. RAJASURIA
M/s. Jubilee Plot and Housing Pvt. Ltd. Chennai
Versus
Mahaveer Chand Kothari & Another
C.R.P. NPD. Nos. 1774 & 2623 of 2010 & M.P.Nos.1 & 1 of 2010 & O.A.No.739 of 2009 & Application Nos. 3978 & 3979 of 2009
Decided On : 11-08-2010
For the Petitioner:K.V. Subramanian Senior counsel for M.A. Abdul Wahab, Advocate.
For the Respondents:K. Rajasekaran, Advocate.
The executing court's actions were justified due to the revision petitioner's failure to comply with opportunities and objections, and the need to protect the interest of the respondents in the execution proceedings.
Headnote:
Arbitration Award - Execution of Consent Award - Arbitration Act - Section 9
Fact of the Case:
The case involved the execution of a consent award passed under the Arbitration Act. The respondents filed an execution petition for the award, leading to disputes over attachment and sale notice.
Finding of the Court:
The court found that the executing court's actions were justified due to the revision petitioner's failure to comply with opportunities and objections. The court dismissed the application filed under Section 9 of the Arbitration Act and disposed of the revision petitions with observations.
Issues: The issues included the tenability of the application filed under Section 9 of the Arbitration Act and the entitlement of the revision petitioner to raise the attachment and set aside the sale notice.
Ratio Decidendi: The court emphasized that the executing court's actions were based on the revision petitioner's failure to utilize opportunities and objections, and the need to protect the interest of the respondents in the execution proceedings.
Final Decision: The court dismissed the application filed under Section 9 of the Arbitration Act and disposed of the revision petitions with observations, allowing the revision petitioner to file additional counter within two months.
1. Inveighing the orders dated 29.04.2010 and 25.02.2010 passed by the learned Principal District Judge, Chingleput in E.P.No.25 of 2009 and in E.A.No.49 of 2009, in Arbitration Award dated 01.09.2008, these two civil revision petitions, viz., CRP NPD No.1774 of 2010 and CRP NPD No.2623 of 2010 are focused.
2. O.A. No.739 of 2009 has been filed for obtaining an order of interim injunction restraining the respondents from in any way executing the arbitration award dated 01.09.2008, pending disposal of the suit O.S.No.228 of 2008 on the file of the learned District Munsif, Maduranthakam.
3. Heard both sides.
4. Compendiously and concisely, the relevant facts, absolutely necessary and germane for the disposal of these two civil revision petitions and O.A. No.739 of 2009 would run thus:
a] Indubitably and indisputably, the parties involved in this matter agreed for a consent award to be passed under the Arbitration Act. Whereupon on 01.09.2008 the consent award was passed by the learned Arbitrator concerned. Subsequently, the respondents herein did choose to file the execution petition for executing the award and as of now, the said execution petition is pending in E.P.No.25 of 2009 before the learned Principal District Judge, Chingleput.
b] Earlier, the executing court set the revision petitioner herein exparte and also ordered attachment of the immovable property concerned. Subsequently, E.A. was filed to get set aside the exparte order passed in the E.P. and it was allowed; thereafter counter also was filed by the revision petitioner in the E.P. However, the E.A.No.49 of 2009, which was filed for getting the order of attachment raised was dismissed. It appears that the Executing court proceeded with the execution and without serving sale notice in person on the judgment debtors, it is found recorded by the Executing Court as though the sale notice was affixed.
c] Being aggrieved by and dissatisfied with such a procedure adopted by the lower authority the revision petitioner herein filed CRP NPD No.1774 of 2010, and as against the dismissal of E.A.No.49 of 2009 in getting the attachment raised, CRP NPD No.2623 of 2010 has been filed. Meanwhile O.A.No.739 of 2009 has been filed invoking Section 9 of the Arbitration Act.
5. The learned senior counsel for the revision petitioner in all the matters, placing reliance on the grounds found set out therein, would develop his argument thus:
i] The consent award passed contains several conditions and unless the respondents herein comply with those conditions, the question of executing the award as a decree would not arise. However, without complying with the conditions, which the respondents herein ought to have complied with, they simply filed the execution petition as against which alone the revision petitioner herein filed counter.
ii] While so, the Executing Court which passed the exparte attachment should have also set aside the order of attachment but it failed to do so and the reasons found set out in the order in refusing to raise the attachment are not tenable in law.
iii] Even though the revision petitioner has been very much available at the concerned address, the Executing Court simply recorded as though the sale notice was served by affixture and as such the procedure adopted by the Executing Court was against law.
iv] Without giving an opportunity to the parties concerned, whatever order passed should be set aside, as principles of natural justice, would warrant the same. However, the Executing Court failed to resort to the principles of natural justice, warranting interference by this court in these revisions.
6. Per contra, refuting and challenging the contentions and the arguments as put forth on the side of the revision petitioner, the learned counsel for the respondents would detail and delineate thus:
i] The revision petitioner herein got from the Executing Court, number of adjournments from 14.08.2009 till 09.11.2009 for the purpose of filing count
