Execution Case No. 3 of 2008 · High Court · 2005

(cid:28)Chief Engineer, Public Health Engineering, Assam shall pay M/s. D. L. Engineeri ng works, Karimganj the amount of Rs.1,50,860.74 (Rupees One Lakh Fifty Thousand Eight Hundred Sixty and Paisa Seventy Four) only along with interest thereon as per provisions of interest on Delayed Payments to Small Scale & Ancillary Indus trial Undertaking Act’93 (as amended) being the amount due against supply and re pair works relating to fabrication undertaken for the department. The pay is to be made within six months or on receipt of first LOC whichever is earlier. This Award is deemed to have been passed on 20th May 2005 at Bamunimaidam, Guwa hati-21. (cid:29) The admitted position is that no objection was raised against this award under S ection 34 of the Arbitration and Conciliation Act, 1996 nor any appeal under Sec tion 7 of the said act was preferred by the Chief Engineer, Public Health Engine ering Department, Assam, Office at Hengrabari, P.O. Dispur, Guwahati-36 (hereina fter referred to as the judgment debtor). By filing a petition for execution, the respondent No.1 arraigned also the (1) T he Executive Engineer, Public Health Engineering Department, Karimganj, PHE Divi sion at Settlement Road, Karimganj, P.O. Karimganj, Dist-Karimganj, Assam, (2) t he Public Health Executive Engineer, Hailakandi PHE Division, P.O. & Dist-Hailak andi, Assam under jurisdiction of the District Judge at Hailakandi, (3) the publ ic Health Executive Engineer, Silchar PHE Division, P.O. Silchar, District-Cacha r, Assam under jurisdiction of the District Judge Cachar at Silchar, (4) the St ate of Assam represented by the Commissioner & Secretary to the Govt. of Assam, Public Health Engineering Department, Dispur, Guwahati-6 and (5) the Director of Industries and Commerce, Assam, Guwahati-21. But ultimately the process was issued by the order dated 03.09.2009 holding that the decree holder is entitled to execute award to get interest on the principal amount under the provisions of section 4 of the Interest on Delayed Payments to Small and Ancillary Industrial Undertakings Act, 1993 (as amended). Pursuant to that, the process of writ of attachment was filed on 29.10.2009. It appears from the writ of attachment that the same was issued against the Executi ve Engineer, Karimganj, (Public Health), P.H.E. Division, Settlement Road, Karim ganj, P.O. & Dist. Karimganj in the following manner: (cid:28)WHEREAS the judgment debtors have failed to satisfy the award/decree and have f ailed to pay the decreetal amount with interest upto 30-11-08, amount of Rs.13,4 2,400.65 (Rupees Thirteen lac forty two thousand four hundred and sixty five pai se) only and due from the judgment debtors in connection with the arbitral award passed by the Industry Facilitation Council at Guwahati, and execution of the arbitral award is ordered by this court in the above noted case. These are to command you to attach the schedule mentioned movable property of th e office of the judgment debtors to satisfy the said arbitral amount with upto d ate interest or to be pointed out by the Decree holder at the time of execution of the attachment and return the same with an endorsement certifying the day on which and manner in which it has been executed or why it has not been executed o n or before the date fixed on 16.12.2009. Against the order dated 03.09.2009, this petition has been presented praying for setting aside and quashment of the order dated 03.09.2009 and the order dated 2 9.10.2009 by which the writ of attachment and the warrant of movable properties against the petitioner have been issued by the District Judge, Karimganj in Arbi tration Award (Money) Execution Case No.3 of 2008. Ms. Dev, learned counsel appearing for the petitioner contended that the executi ng Court is bereft of the jurisdiction as only the District Judge, Kamrup has go t the jurisdiction to execute the award. She further asserted that no authentica ted copy of the award has been received by the petitioner at any point of time a nd he was also not associated with the arbitral proceeding nor was he the party in the arbitral proceeding. As such no execution proceeding shall lie against th e petitioner. Moreover, she submitted that no liability is to be discharged by t he petitioner to the awardee-respondent No.1. On the other hand, Mr. Choudhury, learned Senior Counsel quite categorically sub mitted that the petitioner cannot challenge the award on whatever ground inasmuc h as he was not the party in the proceeding and the parties in the proceeding ha ve not called this award in question either in the appellate forum or in a proce eding under Section 34 of the Arbitration and Conciliation Act, 1996. He fairly submits that except the Chief Engineer, Public Health Engineering Department, As sam the other persons ought not have been made parties including the petitioner in the execution proceeding. As consequence of this submission and also on appreciation of records as appende d to the petition, this Court is impelled to hold that the process as has been i ssued against the petitioner is liable to be held unsustainable in law even if t he petitioner is a subordinate officer to the said Chief Engineer. The process a nd the warrant as stated ought to have been issued against the Chief Engineer co nsidering that the Chief Engineer was the party in the arbitral proceeding. On appreciation of the entire fact that has been laid unfolded before this Court , this Court has no hesitation to hold that the persons, namely, (1) The Executi ve Engineer, Public Health Engineering Department, Karimganj, PHE Division at Se ttlement Road, Karimganj, P.O. Karimganj, Dist-Karimganj, Assam, (2) the Public Health Executive Engineer, Hailakandi PHE Division, P.O. & Dist-Hailakandi, Assa m under jurisdiction of the District Judge at Hailakandi, (3) the public Health Executive Engineer, Silchar PHE Division, P.O. Silchar, District-Cachar, Assam u nder jurisdiction of the District Judge Cachar at Silchar, (4) the State of Ass am represented by the Commissioner & Secretary to the Govt. of Assam, Public Hea lth Engineering Department, Dispur, Guwahati-6 and (5) the Director of Industrie s and Commerce, Assam, Guwahati-21 cannot be allowed to continue as the parties in the execution proceeding and as such their names have to be struck off by the District Judge, Karimganj, the executing Court. Resultantly, all processes/warrants against the petitioner including the impugne d order dated 03.09.2009 and 29.10.2009 shall stand quashed. It is made clear th at the execution proceeding being Arbitration Award (Money) Execution Case No.3 of 2008 shall proceed against the respondent No.2 i.e. the Chief Engineer, Publ ic Health Engineering Department, Assam in accordance with law. With this observation and direction this petition stands allowed to the extent a s indicated above.