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2019 Supreme(All) 1800
IN THE HIGH COURT OF ALLAHABAD
JASPREET SINGH, J.
Goenka Leasing And Finance Pvt. Ltd. Through Its Director - Appellant
Versus
State of U.P. Through Its Secy. Public Works Department Lucknow - Respondent
Civil Revision No. 26, 96 of 2009
Decided On : 11-11-2019
Advocate Appeared:
For the Appellant : Sachin Garg, Vivek Raj Singh
Headnote:
Arbitration Act, 1940 – Section 20, 29,38 and 39 – Civil Procedure Code, 1908 – Order 21 Rule 2 and 28 – Section 47 – During pendency of execution case at Lucknow, State of U.P., made an application before Division Bench for recall of order said application was dismissed by Division Bench of Calcutta High Court by noticing that it was an abuse of process of law – State of U.P., thereafter preferred Special Leave Petition before Apex Court which also dismissed – Instead of complying with aforesaid award, it is at this stage, State of U.P., made an application purportedly under Section 47 CPC – District Judge by means of order entertained said objections despite opposition by revisionist – Order of entertaining objections under Section 47 CPC was assailed by revisionist before this Court – Whether Executing Court rightly construed award and decree made in light of orders passed by Calcutta High Court from time to time – Held, Only in fitness of things that District Judge, Lucknow shall take up that matter on priority inasmuch as it is distressing to note that award which was passed in year 1973 is still under executing and more than 45 years have lapsed while decree holder has been unable to obtain fruits of decree – Matter shall be taken up by District Judge expeditiously and finally execute decree and pass final orders without granting unnecessary adjournments to either parties and if possible, may take up this matter on day to day basis and in any case may not fix any date beyond period four days at time and conclude proceedings – Civil revisions petitions allowed – (Paras: 47 to 49)
Facts of the case:
During pendency of execution case at Lucknow, State of U.P., made an application before Division Bench for recall of order said application was dismissed by Division Bench of Calcutta High Court by noticing that it was an abuse of process of law – State of U.P., thereafter preferred Special Leave Petition before Apex Court which also dismissed – Instead of complying with aforesaid award, it is at this stage, State of U.P., made an application purportedly under Section 47 CPC – District Judge by means of order entertained said objections despite opposition by revisionist – Order of entertaining objections under Section 47 CPC was assailed by revisionist before this Court – Whether Executing Court rightly construed award and decree made in light of orders passed by Calcutta High Court from time to time.
Findings of the court:
Only in fitness of things that District Judge, Lucknow shall take up that matter on priority inasmuch as it is distressing to note that award which was passed in year 1973 is still under executing and more than 45 years have lapsed while decree holder has been unable to obtain fruits of decree – Matter shall be taken up by District Judge expeditiously and finally execute decree and pass final orders without granting unnecessary adjournments to either parties and if possible, may take up this matter on day to day basis and in any case may not fix any date beyond period four days at time and conclude proceedings.
Result: Civil revisions Petition allowed
JUDGMENT :
1. Heard Shri N.K. Seth, learned Senior Advocate ably assisted by Shri Sachin Garg, learned counsel for the revisionist and Shri Uttam Kumar Srivastava, learned standing counsel for the State-respondents.
2. As both the above revisions are in between the same parties arising out of an execution case and assail two different orders and primarily the controversy is one and the same, accordingly, both the above revisions have been connected and heard together and accordingly is being decided by this common judgment.
3. This is a classic case which deals with difficulties faced by a decree holder in execution of a decree. In relation to the difficulties faced by a decree-holder in exercise of the decree, in 1872, the Privy Council had observed that : (MIA p.612)
"... the difficulties of a litigant of India begin when he has obtained a decree".
4. Even today, in 2019, the position has not improved and still the decree-holder faces the same problem which was being faced in the past.
5. To put the controversy in a perspective, certain facts giving rise to the aforesaid revisions are being noticed first.
6. That some times in the year 1964, the State of Uttar Pradesh was assigned the work of construction of a Bund by the Public Works Department in District Bahraich. M/s. East Jamuria Company Pvt. Ltd., (the predecessor in interest of the revisionist company i.e. Goenka Leasing & Finance Pvt. Ltd., (hereinafter referred to as “the Company / revisionist) had submitted its tender for the aforesaid work, which was accepted. Certain disputes arose between the parties which led the revisionist company to invoke the provisions of Section 20 of the Arbitration Act, 1940 (hereinafter referred to as “the Act of 1940”). The aforesaid proceedings were initiated before the High Court at Calcutta and the aforesaid High Court by means of its order dated 20.02.1966 directed the parties to appoint their Arbitrators. Both the parties appointed their Arbitrators and the nominee Arbitrators agreed that in case of difference of opinion, the matter would be referred to an Umpire. The matter proceeded before the Arbitrators, who ultimately had a difference of opinion and thus referred the matter to the Umpire in the year 1970. The Umpire pronounced his award on 29.10.1973. The aforesaid award was assailed by the State of U.P., by filing their objections under Section 30 of the Act of 1940 which was decided by the High Court at Calcutta by means of the order dated 28.04.1977 and by the aforesaid order, the award passed by the Umpire was modified only to a small extent relating to the power of the Arbitrator to grant pentente lite interest. Learned Single Judge of the Calcutta High Court held that the Arbitrator did not have a power to grant interest pentente lite.
7. This modification made by the learned Single Judge was assailed in an Appeal before a Division Bench of the Calcutta High Court which was allowed and the Division Bench of the Calcutta High Court clearly held that the Arbitrator had the power to award pentente lite interest while relying upon a decision of the Hon'ble Apex Court and with the aforesaid, the appeal of the company was allowed. However, it was noticed that there was a typographical error in the said order for which the revisionist made an application. The said application was allowed and the order passed by the Division Bench of the Calcutta High Court dated 17.03.2006 was corrected. Thereafter, since the decree was prepared, which was to be executed against the State of U.P., which was primarily based out of Lucknow, accordingly an application was moved before the Calcutta High Court for seeking a transfer of the decree at Lucknow. The said application was allowed and the decree was transferred before the District Judge at Lucknow to be executed in accordance with law which came to be registered as Execution Case No.51/2008.
8. That during the pendency of the aforesaid execution case at Lucknow, the State of U.P., made an applic
