Madhabi Mondal & Anr vs M/S. Cholamandalam Investment
2022 Latest Caselaw 2363 Cal/2

                                                                            OD-3

ORDER

APOT/137/2022 WITH EC/48/2021 IA NO.GA/1/2022 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE

MADHABI MONDAL & ANR.

VERSUS M/S. CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LIMITED

BEFORE The Hon'ble Justice HARISH TANDON The Hon'ble Justice PRASENJIT BISWAS Date: 8TH SEPTEMBER, 2022 Appearance Mr. Priyankar Saha, Advocate Mr. Lal Ratan Mondal, Advocate ....for the appellants Ms. Reshmi Ghosh, Advocate Mr. Ranjit Singh, Advocate Ms. Putul Das (Singh), Advocate .. for the respondent

The Court : This appeal arises from an order dated 5th July, 2022

passed by the Executing Court appointing a special officer to take

possession of the vehicle in question. Admittedly, by virtue of the

agreement the loan was disbursed to purchase the vehicle. The dispute

arose and in view of the arbitration clause, the arbitrator was appointed

and ultimately an award to the tune of Rs.20,30,030/- along with interest

was made and published. It is undeniable that the appellant has challenged

the said award under Section 34 of the Arbitration and Conciliation Act,

1996 and equally it is true that the award holder has put the said award

into execution under Section 36 thereof. An application was made by the

award holder that the possession of the vehicle which is the secured asset

(the vehicle) be taken through an officer of the Court which, in fact, has

been allowed by the Executing Court by passing the impugned order.

Learned Advocate appearing for the appellant is very much vocal in

his submission that there is no fetter on the part of the Court to pass

unconditional order of stay pending an application under Section 34 of the

said Act which does not appear from the impugned order.

Application for stay was filed but what is revealed therefrom is that

there was no order of stay passed by the Executing Court. Therefore,

Executing Court was of the view that there is no impediment on its part to

proceed to consider the prayer for appointment of the special officer to take

possession of the vehicle. After the amendment having brought in the

Arbitration and Conciliation Act, 1996, concept of automatic stay of

execution proceedings or the efficacy of the award to remain stayed has

seen radical change and it is now imperative on the part of the judgment

debtor to seek an order of stay by the execution proceedings. Section 36 of

the said Act provides that while granting the stay, the Court may put the

judgment debtor on terms as it deemed fit. However, an exception is carved

out by inserting a proviso thereto where the Court may pass an order of

stay unconditionally provided the conditions enshrined therein are

satisfied. It is relevant to note that though the application for stay claimed

to have been filed but the Court has not passed any order staying the

execution proceedings. All the points which have been agitated before us

are required to be considered at the time of hearing of the application for

stay and cannot have any bearing in the appointment of an officer to take

possession of the secured asset.

So long as the award is staring at the face of the appellant and in

absence of any order of stay granted by the Court, we do not find any

impediment on the part of the Court to take the possession of the secured

asset through an officer of the Court in order to bring equilibrium in the

rights of the parties. We, thus, do not find any infirmity in the order.

The appeal and the application are dismissed.

There is no order as to costs.

[HARISH TANDON, J.]

[PRASENJIT BISWAS, J.]

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