Titagarh Logistics ... vs Durgapur Freight Terminal Pvt. ...
2021 Latest Caselaw 5868 Cal

29.11.2021 A.B.

CO 1970/2021

Titagarh Logistics Infrastrcture Pvt. Ltd.

Vs.

Durgapur Freight Terminal Pvt. Ltd &Ors.

(Through Video Conference)

Mr. SabyasachiChaudhury, Mr. Sayantan Bose, Ms. Anyapurba Banerjee, Ms. Madhurima Das ... for the Petitioner Mr. RishadMedona, Mr. Meghajit Mukherjee, Mr. Rajesh Gupta, .... for Opposite Party

Assailing orders passed by Ld. Judge Commercial Court,

at Alipore, on 25.08.2021, 15.09.2021 and 10.11.2021 in

Arbitration Execution Case No. 10 of 2021, this revision has

been filed by the award holder.

That there is an ongoing Arbitration Proceeding between

the parties and pending final hearing, the petitioner has

filed an application under Section 31 (6) of Arbitration and

Conciliation Act, 1996 praying for interim award for a sum

of Rs. 2,36,00,000/- (Rs. Two Crore Thirty Six Lakh).

However, Ld. Arbitral Tribunal after considering such

application of the petitioner has been pleased to pass an

interim award of Rs. 2,00,00,000 (Two Crore) only along

with GST at the applicable rate and interest at the rate of

18% per annum on the failure of the opposite parties/

Award Debtors to pay such interim award by 28.02.2021.

When award debtors failed to honour the interim award

passed the Arbitral Tribunal on 10.02.2021, then invoking

the right enshrined in Section 36 of the Arbitration and

Conciliation Act, 1996 and under order XXI of Civil

Procedure Code, the petitioner has filed an execution case

for recovery of awarded sum before Ld. Judge Commercial

Court, at Alipore (Executing Court) on 25.08.2021.

The main contention of the counsel for the petitioner is

that the petitioner having filed the execution case within

two years of passing of the interim award, then as per order

XXI rule 22 C.P.C there is no need to serve notice of the

execution case on the Opposite Parties/Award Debtors, but

Ld. Court below instead of proceeding further with the

execution of the award has insisted service of notice of the

execution case on the Opposite Parties/Award Debtors in

violation of of the provision of Order XXI rule 22 C.P.C.

Therefore, he prays for setting aside the impugned orders

and for stay of those the impugned orders.

On the contrary Ld. Advocate for the Opposite Parties

submits Ld. Court below exercising its discretion and in its

wisdom desired to have the notice of the execution served on

the Opposite Parties and also keeping in view of the

principle of natural justice. Impugned orders have not

affected the rights of the petitioners or cause prejudice to its

interest. He submits no revision lies against the impugned

orders as those orders have not decided any cause or issue

of the parties.

Gone through the orders under challenge and this court

does not find the impugned orders have finally disposed of

issues between the parties. Rather, the executing court

appears to have passed those orders to regulate the

procedure for further progress of the execution case and

fixed 15.09.2021 for service return and appearance of the

Opposite parties as Award Holder/petitioner had filed

requisite along with process fee.

Order dated 15.09.2021 shows the court below had

merely asked the Award Holder to serve copy of the

applications under order XXI rule 11 and under section 36

of Arbitration and Reconciliation Act, 1996 on the Opposite

Parties and decided to hear the application under section 36

of the Arbitration Act, on compliance of such order by the

Award Holder. Then fixed 10.11.2021 for S/R and

appearance Award Debtors.

Order dated 10.11.2021 shows appearance of Award

Debtor No. 1 before the Ld. Court below and directed the

Award Holders to comply order dated 15.09.2021 and file

affidavit of service on 26.11.2021.

Therefore, I do not find the above orders under challenge

to constitute the expression "case decided" as stipulated by

section 115 C.P.C. as those orders have not adjudicated

upon some rights and obligation of the parties in

controversy. Merely because the court below has asked the

petitioner/Award Holder to serve copy of execution

application and copy of application under section 36 of the

Arbitration Act, on the opposite parties, it cannot be said to

be a case of exercise of jurisdiction illegally with material

irregularity.

For the sake of argument even if it is assumed the

orders under challenge are technically incorrect as Ld.

Court below directed the petitioner/Award Holder to serve

copy of execution application and its another application

under section 36 of the Arbitration Act, on the Opposite

Parties for execution of interim award within two years of its

passing, this court does not find such orders, if allowed to

stand would result in miscarriage of justice.

In view of the above discussion this court holds present

revisional application is not maintainable.

C.O. 1970 of 2021 is accordingly dismissed and

connected application, if any, shall stand disposed of .

In view of the order made above affidavits are not invited.

Allegations made shall be deemed be denied.

There will be no order as to costs.

All parties shall act in terms of the copy of the order

downloaded from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if

applied for be given to the parties upon compliance of the

requisite formalities.

(KesangDomaBhutia, J.)