Anand Rathi Share And Stock ... vs Anish Navnitrai Mehta Huf
2021 Latest Caselaw 15036 Bom

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION
                                      IN ITS COMMERCIAL DIVISION


                                INTERIM APPLICATION (L) NO.17089 OF 2021
                                                   IN
                 COMMERCIAL EXECUTION APPLICATION (L) NO.17085 OF 2021


          Anand Rathi Share & Stock
          Brokers Limited                                 .. Applicant/Org. Claimant/
                                                                 Award Holder
                     v/s.
          Anish Navnitrai Mehta HUF                       .. Respondent/Award Debtor


          Mr. Prateek Sakseria a/w Simil Purohit & Bhakti Bhanushali i/b. Sonal
          Doshi & Co. for the applicant.

          Mr. Sandeep Parikh a/w S. K. Chaurasia i/b. SKC Legal for the
          respondent.


                                                    CORAM : A. K. MENON, J.

DATED : 14TH OCTOBER, 2021.

P.C. :

1. The short point which arises for consideration is whether in an

application for execution of an Award published within the

jurisdiction of this court by a tribunal constituted under the Rules

Regulations and Bye-Laws of the National Commodity and Digitally

Derivatives Exchange (NCDEX), is without jurisdiction if the signed by SANDHYA SANDHYA BHAGU BHAGU WADHWA WADHWA Date:

2021.10.14 18:48:46

+0530

10.ial-17089-21.doc wadhwa judgment debtor contends that the HUF does not have any

properties within the territorial limits and jurisdiction of this

court.

2. On behalf of the applicant, it is submitted that by Mr Sakseria that

while the respondent may not have properties within the

jurisdiction of this court, it is always open for this court to direct

disclosure of assets that are located elsewhere and there is no bar

against such an order of disclosure being passed. In the facts at

hand, Mr. Seksaria relied an order passed in Chamber Summons

no.176 of 2010 on 19th December, 2011 where this court has

considered the scope of Order XXI Rule 41 and observed that

there is no prohibition against the order of disclosure and in

practical terms it would not amount to enforcement of the award.

3. Mr. Parikh on behalf of the respondent has relied upon the

affidavit filed on behalf of HUF by its Karta contending that he

carries business at Amravati and that the cause of action if any,

arose at Amravati pursuant to an agreement between the NCDEX

and the HUF. Although an award was passed, the respondent had

invoked the Investor Grievance Redressal System and Arbitration

Mechanism and is pursuing a challenge to the award before the

10.ial-17089-21.doc wadhwa Appellate Tribunal constituted by the Arbitration Department of

NCDEX as contemplated under Bye-Law 11.22.

4. In view thereof, he submits that the award is not executable. This

is countered by Mr. Sakseria who submits that there is no stay

against execution and mere filing of the appeal would not

automatically stay the operation of the award. The award is thus

executable. Mr. Parikh states that the respondent has already

disclosed the facts that he has no properties or assets within the

territorial limits and jurisdiction of this court and without

prejudice to his contention, he has in his affidavit, in paragraph

4(v) stated as follows;

"4(v) Without prejudice to the above legal position, I respectfully say and submits that whatever little assets my HUF owned are situated at Amravati - Maharashtra and therefore also the said assets are also outside the territorial jurisdiction of this court."

5. Thus, there is an admission of existence of assets lying beyond the

jurisdiction of this court and in particular at Amravati. Although

Mr. Parikh seeks to persuade me to hold that this is sufficient

disclosure, I am however of the view that the disclosure to the

extent that there is no property within the territorial limits of this

10.ial-17089-21.doc wadhwa court is no disclosure at all. I am of the view that there is no

impediment in allowing the application to the limited extent of

directing the respondent to disclose its assets.

6. At this stage, Mr. Sakseria, on instructions, states that subject to

the statement of disclosure on oath being correct, the award

holder will pursue execution in the appropriate court. He seeks to

reserve this right so that the execution application may be

disposed.

7. In view thereof, I pass the following order;

(i) There will be an order in terms of prayer clause (a-i), (a-ii) and

a-iii) to the execution excluding bracketed portion, which reads

thus;

"(a) Pending the hearing and final disposal of the Execution Application, this court [be pleased to examine the Karta of the respondent under Order XXI Rule 41 of the Code of Civil Procedure Code, 1908 and this court] order and direct the respondent to disclose on oath following;

i. all other movable and immovable assets and properties which stand in the name of the respondent/Karta of respondent/Award Debtor above named either in his personal capacity or in

10.ial-17089-21.doc wadhwa any other entity in a beneficial manner;

ii. particulars of all bank accounts and statements, income tax returns of respondent/award debtor from the date of Award passed by the Arbitral Tribunal i.e. 15th January, 2021;

iii. all monies received or receivable by the respondent/Karta of respondent/Award Debtor."

(ii) In other words the respondent is directed to disclose on oath

particulars set out in prayer clause (a-i), (a-ii) and (a-iii).

Disclosure shall be made within three weeks from today.

(iii) Upon such disclosure being made, the applicants are at liberty

to pursue execution proceedings before the appropriate court

and without prejudice to their rights to revive this execution

application, in the event, any property is found to be within the

jurisdiction of this court.

(iv) The Execution Application and the interim application are

disposed in the above terms.

(A. K. MENON, J.)

10.ial-17089-21.doc wadhwa