Atul Kumar Ojha v. Madhusudan Das

Order No. ORDER 27.11.2024

This matter is taken up through hybrid arrangement.

In filing this Writ Petition, the Petitioner has challenged the order dated 05.10.2023 passed by the learned District Judge, Balasore in Execution Case No.39 of 2023 vide Annexure-1.

Factual scenario of the case in brevity remains:- (a) In order to run a partnership business for carrying out, extraction, transportation and selling of minor minerals including sand the Petitioner entered into an agreement with the Opposite Party. The said partnership business was being maintained in the name of M/s. S.S.B.B Transport. (b) After running the business since some dispute arose Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 02-Dec-2024 17:46:14 between the partners (Petitioner and Opposite Party), an arbitration proceeding was initiated under Section 11(6) of the Arbitration and Conciliation Act, 1996. The said Arbitration proceeding was heard and disposed of by passing an ex parte arbitral award against the present Petitioner vide order dated 20.01.2023. (c) Challenging the said ex parte award the Petitioner preferred an application under Section 34 of the Arbitration and Conciliation Act before the learned District Judge, Balasore. (d) At this juncture, based on the award dated 20.01.2023 the Opposite Party filed an Execution Petition vide Execution Case No.39 of 2023 before the Court of the learned District Judge, Balasore. Accordingly, the Petitioner filed his reply and also a petition dated 10.08.2023 for staying the above noted execution proceeding. (e) Thereafter, upon hearing both the sides, the learned District Judge, Balasore vide impugned order dated

05.10.2023 allowed the petition for staying the execution proceeding with a condition of depositing of a sum of Rs.6,00,000/- by the Petitioner. (f) Since the financial condition of the Petitioner is not good, he filed an application before the Court of the learned District Judge, Balasore for permitting him to furnish the property security instead of cash deposit of a sum of Rs.6,00,000/-. (g) Thereafter, upon hearing the parties concerned, the learned District Judge, Balasore vide order dated 03.11.2023 rejected the said petition of the Petitioner. Hence, this Writ Petition. Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 02-Dec-2024 17:46:14

Challenging the impugned order dated 05.10.2023 learned counsel for the Petitioner submits that since the financial condition of the present Petitioner is extremely serious, he is not able to deposit a sum of Rs.6,00,000/- as per the impugned order dated 05.10.2023. Hence, he may be permitted to furnish the property security. The relevant portion of the impugned order dated 05.10.2023 passed by the learned District Judge, Balasore in Execution Case No.39 of 2023 is extracted herein below:-

In view of the foregoing discussions, the petition dtd.10.08.2023 is allowed subject to deposit of Rs.6,00,000/- (Six lakh) by the J.Dr before this Court within one month from the date of this order failing which the order shall automatically stand vacated and the execution case shall be proceeded with to execute the award dtd.20.01.2023.

Considering the submission made on behalf of the Petitioner and looking to the factual scenario of the case, this Court modifies the impugned order dated 05.10.2023 with the following conditions:- (i) Instead of depositing a sum of Rs.6,00,000/- the Petitioner shall furnish property security for the said amount in order to maintain the impugned order dated 05.10.2023 passed in Execution Case No.39 of 2023. (ii) It is also made clear that the Petitioner shall also file an affidavit before the Court of the learned District Judge, Balasore on the following points:- Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 02-Dec-2024 17:46:14 (a) The details of the property to be furnished by the Petitioner should be valid. (b) The said property should be free from litigation. (c) The said property should be encumbrance.

The impugned order dated 05.10.2023 passed in the above noted Execution Case is modified to the above extent.

This Writ Petition is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Ayaskanta Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 02-Dec-2024 17:46:14