Bombay High Court
M/S. Rana Construction Co., ... vs The Secretary, Nagpur Diocesan ... on 22 December, 2016
Bench: Z.A. Haq
1 wp4995.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4995/2015
M/s. Rana Construction Co.,
a registered Partnership Firm,
having its Office at 21, Awasthi
Nagar, Nagpur - 440 013,
through its Partner.
Shri Amarjeet Singh Bawa
S/o Baldeo Singh Bawa,
aged about 58 Yrs., Occu. Contractor,
R/o 126, AGF, Sadiquabad Colony,
Mankapur, Nagpur - 440 029. ..Petitioner.
..Vs..
1. The Secretary,
Nagpur Diocesan Trust Association
Bishop House, Opposite Coffee
House, Sadar, Nagpur.
2. District Judge No.8,
Nagpur. ..Deleted.
..Respondents.
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Mr A. R. Kaplay, Advocate for the petitioner.
Mr. A.M. Ghare, Advocate for respondent No.1.
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CORAM : Z.A.HAQ, J.
DATED : 22.12.2016.
ORAL JUDGMENT
The learned Advocate for the petitioner seeks permission to delete
the name of respondent No.2 - District Judge No.8, Nagpur. Permission
granted. The amendment be carried out forthwith.
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2. Heard Mr A. R. Kaplay, Advocate for the petitioner and Mr. A.M.
Ghare, Advocate for respondent No.1.
3. Rule. Rule made returnable forthwith.
4. The petitioner - decree holder has challenged the order passed by
the Executing Court dismissing the applications (Exh. Nos.7 and 12) filed by
the decree holder praying for issuance of warrant of attachment of movable
and immovable properties for executing the award.
By the award passed on 16th July, 2007 it is held that the decree
holder is entitled to recover an amount of Rs.25,83,176/- from the respondent
No.1 - judgment debtor. As the decretal amount is not paid by the respondent
No.1 - judgment debtor, the petitioner had filed execution proceedings in
which the applications (Exh. Nos.7 and 12) were filed. The judgment debtor
came out with the defence that he has paid the amount more than as per the
award and, therefore, the applications (Exh. Nos. 7 and 12) be dismissed. The
Executing Court, without applying its mind has mechanically accepted the
statement made on behalf of the judgment debtor and has dismissed the
applications (Exh. Nos.7 and 12).
The learned Advocate for the judgment debtor has referred to the
statement which was filed before the Executing Court (placed on record at
page No.61) and relying on it, it is submitted that the decree holder is claiming
an amount of Rs.9,40,970/- towards interest which is not granted as per the
3 wp4995.15
award and deducting that amount the principal amount as per award is paid.
However, the learned Advocate for the judgment debtor has not been able to
point out that Rs.25,83,176/- which is awarded has been paid to the decree
holder to satisfy the award. The failure on the part of the Executing Court to
consider all these aspects vitiates the order passed by it.
Hence, the following order:
(i) The impugned order is set aside.
(ii) The applications (Exh. Nos.7 and 12) filed by the petitioner - decree
holder are restored.
(iii) The Executing Court shall proceed with the applications (Exh. Nos.7
and 12) and pass appropriate orders according to law.
(iv) The petitioner and respondent No.1 undertakes to appear before the
District Judge 8, Nagpur on 20th January, 2017 at 11 a.m. and abide by further
orders in the matter.
Rule is made absolute in the above terms with costs quantified at
Rs.10,000/- (Rs. Ten Thousand Only) to be paid by the respondent No.1 to the
petitioner. The respondent No.1 shall pay the costs and produce the receipt on
record of the District Judge on the date of appearance, failing which the
learned District Judge may pass appropriate orders against the respondent
No.1.
JUDGE
Tambaskar.
