Pluto Shipping Ltd vs Dharti Dredging And ...
2022 Latest Caselaw 11586 Bom

                                                                        30-IA-985-2022.doc

         Digitally
         signed by
         GANESH
GANESH   SUBHASH
SUBHASH LOKHANDE
LOKHANDE Date:
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         2022.11.17
         14:53:11
         +0530
                                        ORDINARY ORIGINAL CIVIL JURISDICTION
                                              IN ITS COMMERCIAL DIVISION

                                         INTERIM APPLICATION NO. 985 OF 2022
                                                             IN
                            COMMERCIAL EXECUTION APPLICATION NO. 62 OF 2021
                                                             IN
                                ARBITRATION AWARD DATED 19th NOVEMBER, 2020


                      Pluto Shipping Limited                               .. Applicant
                      IN THE MATTER BETWEEN:
                      Pluto Shipping Limited                               .. Applicant/Claimant
                                Vs.
                      Dharti Dredging & Infrastructure Ltd.                .. Respondent



                      Sudeshkumar Naidu i/b. C. R. Naidu & Co. for the Applicant.



                                                          CORAM:- B. P. COLABAWALLA,J.

DATE :- 15th NOVEMBER, 2022.

P. C.:

1. This Interim Application under Sections 39 & 40 read with

order XXI Rules 5, 6 & 8 of the Code of Civil Procedure Code, 1908 for

transferring the Award passed by the Ld. Sole Arbitrator [Mr. Justice

Vijay C. Daga (Retd.) ] dated 19th November, 2020 for execution in the

Ganesh Lokhande page 1 of 6 30-IA-985-2022.doc

same manner as if, it were a Decree of this Court.

2. The reliefs sought in the above IA read thus :

"(a) Order and Direct for transfer of the Award/Decree, under Section 39 and Section 40 r/w Order XXI Rule 5, 6 & 8 of CPC, to the Hon'ble Chief Judge/Addl. Chief Judge, City Civil Court, Hyderabad, Begumpet, Telangana State - 500016 for the limited purpose of execution of the said Award/Decree for attachment & sale of moveable & Immovable properties belonging to the Respondent as set out in Para 23 above, lying/situate within the jurisdiction of the Hon'ble Chief Judge/Addl. Chief Judge, City Civil Court, Hyderabad and transmit the sale proceed to the Applicant under Order XXI Rule 64;

(b) Such other and further orders or grant reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case;

(c) Ad-interim / Interim reliefs in terms of prayers (a) to (d) hereof;

(d) Costs of this Interim Application may be granted."

3. The Applicant, post the Award dated 19th November, 2020,

filed Arbitration Petition (L) No.2646 of 2021, under Section 9 of the

Arbitration & Conciliation Act, 1996 (for short `Act') seeking disclosure

of assets, moveable as well as immovable, owned by the Respondent

Ganesh Lokhande page 2 of 6 30-IA-985-2022.doc

(Judgment Debtor). This Court, by Orders dated 18 th March 2021 and

1st April 2021, ordered the Respondent to file copies of audited balance

sheet, Profit & Loss Account and Returns for last three Financial years

and further disclose on oath all properties and status of those properties

including encumbrances, if any.

4. In compliance of the said Orders the Respondent filed an

Affidavit affirmed on 6th April 2021, disclosing the particulars of

movable and immovable properties and tendering copies of the audited

balancesheet, profit and loss account, and income tax returns of the

Respondent company for the financial years 2017-18, 2018-19 and 2019-

20.

5. The Respondent company also preferred Arbitration

Petition (L) No. 8847 of 2021 under Section 34 of the Act for setting

aside the Award. By Interim Application (L) No. 8993 of 2021

preferred therein, the Respondent sought stay of the Award. By order

dated 28th April 2021, this court was pleased to stay the Award on the

condition that the Respondent company deposit in this court a sum of

Rs.1.5 Crores or furnishing a Bank Guarantee for the said amount by

any Nationalised Bank in favour of the Prothonotary & Sr. Master of this

Court within 6 weeks from date of the said order.

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                                                    30-IA-985-2022.doc

6. The Master and Asstt. Prothonotary (Judicial) of this Court

vide Certificate dated 4th August 2021 certified that the Respondent

Company has neither deposited the said sum of Rs.1.5 Crore nor

furnished a Bank Guarantee in terms of the said Order. Considering

provisions of Section 36 of the Act the Award has become enforceable.

7. A perusal of the Affidavit of disclosure reveals that the

Respondent Company has only one Bank Account maintained with

ICICI Bank, Nariman Point Branch, within the jurisdiction of this Court.

The said bank account was attached and as per the Report of the Bailiff

the said account is dormant and a sum of Rs.92,000/- is lying to the

credit of the said account. The bailiff has attached the said account on

21st February 2022.

8. The Award is a monetary Award in the sum of

Rs.1,48,73,704/- (Rupees one crore forty eight lacs seventy three

thousand seven hundred four only) with interest @7.5% per annum

from the dates as set-out in para 219 of the Award and further interest

@ 7.5% per annum from the date of award till the date of payment.

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                                                     30-IA-985-2022.doc

9. The awarded amount has not been paid till date. The

amount lying in the Bank Account of Respondent, within jurisdiction of

this Court, is not sufficient to satisfy the awarded amount. A perusal of

the Affidavit of Disclosure reveals that the Respondent company has no

other asset (moveable or immovable) within jurisdiction of this Court

but has substantial assets (both moveable and immovable) in

Hyderabad, Telangana.

10. I am satisfied that this is the fit case for transferring the

award to a Competent Civil Court at Hyderabad, Begumpet, Telangana

State - 500016 for executing the Award as a decree of this court

and recovering and transmitting to this court the amounts realised on

execution to the credit of the Execution Application.

11. In these circumstances, the Interim Application is made

absolute in terms of prayer clause (a) above.

12. The Prothonotary & Sr. Master of this court is directed to

transmit a certified copy of this Order to the Chief Judge, City Civil

Court, Hyderabad, for execution and realisation of the Awarded amount

alongwith :

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                                                       30-IA-985-2022.doc


        (a)       a certified copy of Award;

        (b)       certificate setting forth that satisfaction of the Award has

not been obtained by execution within the jurisdiction of this

court and the entire Award amount remains unsatisfied;

13. The Interim Application is disposed off in the aforesaid

terms. No order as to costs.

14. This order will be digitally signed by the Personal Assistant

of this Court. All concerned will act on production by fax or email of a

digitally signed copy of this order.

                                               ( B. P. COLABAWALLA, J. )




Ganesh Lokhande                                                      page 6 of 6