Allahabad High Court
M/S Ashoka Construction Co. Engg. ... vs District Judge, Varanasi And ... on 20 September, 2013
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Reserved on 18.9.2013
Delivered on 20.9.2013
(1) Case :- MATTERS UNDER ARTICLE 227 No. - 101 of 2013
Petitioner :- M/S Ashoka Construction Co. Engg. & Contractors
Respondent :- District Judge, Varanasi And Another
Counsel for Petitioner :- Amit Verma
Counsel for Respondent :- A.S.G.I.,Bajrangi Mishra, Devendra Kumar,S.C.
And
(2) Case :- WRIT - C No. - 59300 of 2012
Petitioner :- M/S Ashoka Construction Company
Respondent :- District Judge, Varanasi And Another
Counsel for Petitioner :- Amit Verma,T.P. Singh
Counsel for Respondent :- A.S.G.I.
Hon'ble Pankaj Mithal, J.
1. These two writ petitions by the same petitioner challenge the order dated 13.12.2012 passed in execution case No.6 of 2006 and dated 13.8.20112 of the District Judge rejecting the execution case No.20 of 2012, respectively.
2. The dispute between the petitioner and the Union of India was referred to arbitration. The Arbitrator made an award on 4.4.2001. The Arbitrator awarded Rs.19,32,000/- to the petitioner in respect of claim No.1 (a), Rs.50,000/- in respect of Claim No.1 (b) and Rs.18,34,234/- corrected to Rs.18,98,234/- in respect of claim No.2.
3. At the same time, the counter claim of the Union of India was partly accepted and an award of Rs.22,35,342/- was made in its favour.
4. The Union of India applied for execution of the award which was in its favour vide execution case No.6 of 2006.
5. Petitioner moved separate application for execution of the award which was in its favour, being execution case No.20 of 2012. It was rejected by the order dated 13.8.1992 on the ground that the award in favour of the petitioner has been set aside and the matter is pending in the High Court. The said order has been impugned in the Writ Petition No.59300 of 2012.
6. Simultaneously, in execution case No.6 of 2006 on the date fixed counsel for the petitioner applied for an adjournment. The court vide order dated 13.12.2012 called for an explanation of the counsel but at the same time directed the petitioner to deposit the entire amount by the next date. This order has been impugned in Writ Petition No.101 of 2013.
7. Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Amit counsel for the petitioner and learned counsel for the Union of India in both the petitions on merits as they agree for final disposal of both of them.
8. The first submission of learned counsel for the petitioner is that the award dated 4.4.2001 has not been set aside in entirety but only in respect of claim No.2 which order is under consideration in First Appeal From Order No.532 of 2012 before the High Court. The award in favour of the petitioner as regard claim No.1 (a) and 1(b) still stands. Therefore, rejection of the execution filed by the petitioner by the District Judge on the reasoning that the award has been set aside and the matter is sub-judice is baseless.
9. Secondly, the executing court cannot direct the petitioner to deposit the entire amount as awarded to the Union of India without adjusting the amount awarded to the petitioner in view of Rule 19 of Order XXI of the Code of Civil Procedure.
10. Learned counsel for the Union of India has vehemently argued that as the award has been set aside by the District Judge under Section 34 of the Arbitration and Conciliation Act, the petitioner is not entitle to any relief in the execution case. At the same time, the Union of India is entitle to realize the amount awarded to it from the petitioner and, therefore, the executing court has not erred in directing the petitioner to deposit the entire amount.
11. The award of the Arbitrator dated 4.4.2001 is Annexure - 1 to the first petition. A reading of the award makes it clear that the petitioner has been awarded following amounts:
Claim No.1 (a) ... Rs.19,32,000/-
Claim No.1 (b) ... Rs.50,000/-
Claim No. 2 ... Rs.18,98,634/- ________________________________________
Total Rs.,38,80,634/- ________________________________________
12. The Union of India has been awarded Rs.22,35,342/-.
13. The Union of India had challenged the aforesaid award by means of Misc. Arbitration Case No.70 of 2001 under Section 34(1) of the Arbitration and Conciliation Act. The judgment and order of the District Judge filed as Annexure - 16 to the first petition reveals that the award given by the Arbitrator on claim No.2 in favour of the petitioner has been set aside. There is no order setting aside any other part of the award or for referring the matter for any afresh arbitration.
14. Accordingly, the award in respect of claim No.1 (a) and 1 (b) continues to survive in favour of the petitioner. The filing of First Appeal From Order No.532 of 2012 is only confined to the judgment and order of the District Judge dated 25th October, 2012 whereby the award in respect of claim No.2 in favour of the petitioner has been set aside. It has nothing to do with the award in respect of claim No.1 (a) and 1 (b).
15. In short, subject to the decision of the aforesaid First Appeal From Order, as on date the award in respect of claim No.1 (a) and 1 (b) amounting to Rs.19,32,000/- and Rs.50,000/- (total Rs.19,82,000/-) stands in favour of the petitioner whereas the award of Rs.22,35,342/- stands in favour of the Union of India. This is implicit from the record.
16. The Union of India has applied for execution so as to realize the amount awarded to it. The Union of India on equitable considerations cannot be permitted to realize the entire amount awarded to it without making payment of the amount which it has to pay to the petitioner under the same award. Therefore, the amount awarded to the petitioner has to be adjusted from the amount awarded to the Union of India before making any payment to it.
17. Rule 19 Order XXI of the Code of Civil Procedure also stipulates that where an application is made to a Court for the execution of a decree under which two parties are entitle to recover sums of money from each other, then if the two sums are unequal, execution may be taken out only by the party entitle to the larger sum and for so much only as remains after deducting the smaller sum.
18. For the sake of convenience, Rule 19 of Order XXI of the Code of Civil Procedure is quoted below:
"19. Execution in case of cross-claims under same decree. - Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then -
(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and
(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree."
19. The aforesaid Rule is a rule of equity and postulates to avoid and two separate executions in respect of the same decree.
20. In view of the provisions of Rule 19 of Order XXI of the Code of Civil Procedure, the rejection of the execution filed by the petitioner i.e. execution case No.20 of 2012 cannot be held to be erroneous in law though the reasoning on which it has been rejected is not sustainable, inasmuch as the award which was passed in favour of the petitioner as a whole was never set aside and pendency of the appeal in the High Court is not material and relevant.
21. A plain a simple reading of Rule 19 of Order XXI of the Code of Civil Procedure makes it abundantly clear that the decree of lesser amount has to be adjusted from the decree of the larger amount and the execution has to be taken out by the party entitle to the larger amount only for the balance of the amount.
22. In view of the above, the sum of Rs.19,32,000/- and Rs.50,000/- i.e. total Rs.19,82,000/- is first to be adjusted from the amount of Rs.22,35,342/- before issuing any direction for payment or deposit of any amount under the award/decree . The Union of India is thus only entitle to (Rs.22,35,342 - Rs.19,82,000/- = Rs.2,53,342/-) Rs.2,53,342/- as the principal amount awarded. Therefore, its execution can only proceed in respect of the aforesaid amount. The executing court patently erred in directing the petitioner to deposit the entire amount of the decree by the next date. Accordingly, the order dated 13.12.2012 deserves to be modified.
23. In the overall facts and circumstances of the case, without disturbing the order dated 13.8.2012 rejecting execution case no.20 of 2012 which is under challenge in Writ Petition No.59300 of 2012, the order dated 13.12.2012 passed by the executing court in execution case No.6 of 2006 is modified by directing the petitioner to only deposit the balance principal amount awarded, as referred to above with consequential benefits, if any, within a period of one month from today, whereupon the execution would proceed and be brought to its logical end in accordance with the law, most expeditiously.
24. The payment of the aforesaid amount or the execution as aforesaid would be subject to result of the First Appeal From Order No.532 of 2012.
25. The Writ Petition No.59300 of 2012 is dismissed and Petition No.101 of 2013 is partly allowed.
Dt:20.9.2013
brizesh
