M/s A.K. Rice & General Mills v. Haryana Warehousing Corporation

12.12.2011 M/s A.K. Rice & General Mills Haryana Warehousing Corporation Vs. .....Petitioner .....Respondent

CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sanjiv Gupta, Advocate for the petitioner/judgment debtor. Ms. Vibha, Advocate for Mr. Ashwani Talwar, Advocate for the decree holder-respondent. JASWANT SINGH, J (ORAL) Judgment debtor-petitioner in the present revision petition under Article 227 of the Constitution has assailed the orders dated 7.9.2010 (P.7) and 8.5.2010 (P.8) whereby the learned Executing Court in the execution proceedings initiated by the decree holder/Haryana Warehousing Corporation for realizing of the principle amount of Rs.3,56,170/- along with interest at R.B.I rates in pursuance to the Award by the Arbitrator, dismissed the objections of the petitioner-judgment debtor and warrant of attachment of his property ordered. This Court while issuing notice of motion on 7.12.2010 had passed the following order: “On 21.3.2005, the Sole Arbitrator announced the award of Rs.3,56,170/- with interest at RBI rates.

Admittedly, the award was not challenged by the petitioner in terms of Section C.R.No.7965 of 2010 #2# 34 of the Arbitration and Conciliation Act, 1996 (for short “the Act”). The respondent filed an execution application under Section 36 of the Act in order to recover total amount of Rs.3,56,170/- with interest at RBI rate from 1.12.2002 till the date of its realization. On 8.5.2010, the Executing Court ordered attachment of the property of the petitioner for the purpose of recovery of the due amount. That order was challenged by the petitioner by way of C.R No.4068 of 2010 before this Court in which the following order was passed: “After arguing the case for some time, learned counsel for the petitioner wishes to withdraw the present petition with liberty to the petitioner to raise his objections before an appropriate Forum for any other legal remedy available to him in accordance with law.

With the aforesaid liberty, this revision petition is ordered to be dismissed as withdrawn.” In spite of taking up any other legal remedy as observed in the aforesaid order, the petitioner filed objection under Section 34 of the Act before the Executing Court which has been dismissed vide the impugned order dated 7.9.2010. Learned counsel for the petitioner has very fairly stated that he does not have a good case on merits and is ready to make the entire payment of the amount which is sought to be recovered by way of execution. He prays that he may be allowed to make the payment in installments. In order to show his bona fide, he submits that out of the total amount, he would pay a sum of Rs.2,00,000/- within a week from today and rest of the amount within 3 months thereafter. In view thereof, notice of motion for 22.12.2010. Dasti only. In the meanwhile, attachment/auction of the property in dispute of the petitioner shall remain stayed subject to his depositing Rs.2,00,000/- in the Executing Court within a period of one week from today. Order dasti.” In compliance of the aforesaid interim order, a sum of Rs.2 lacs C.R.No.7965 of 2010 #3# was deposited. Thereafter, another sum of Rs.8,37,310/-, Rs.75000/- and Rs.81170/- were deposited on 12.5.2011 and 19.5.2011 respectively. On

2.6.2011, the following order was passed by this Court:

Learned counsel for the petitioner/JD seeks some more time to place on record the detailed calculations of the outstanding amount towards satisfaction of the award passed by the Arbitrator and the time schedule within which the same shall be paid. He, however, undertakes to deposit a sum of Rs.50,000/- within ten days from today and another sum of Rs.50,000/- before the next date of hearing, to which the counsel for the respondent/DH has no objection. Adjourned to 28.7.2011.

At the time of hearing today, learned counsel for the respondent-decree holder points out that the petitioner in terms of his undertaking tendered on 2.6.2011 has not deposited the amount by the said dates and therefore he is not entitled to further indulgence by this Court. Learned counsel for the petitioner-judgment debtor is unable to refute this contention. In view of the petitioner have not complied with his undertaking, this Court is left with no other option but to dismiss the present petition, however, in case the petitioner has complied with the undertaking tendered on 2.6.2011, then he shall be free to get this petition revived. Dismissed. December 12, 2011 ( JASWANT SINGH ) JUDGE