Calcutta High Court
Suresh Kumar Jain And Ors vs Hulash Chand Jain And Ors on 19 June, 2023
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Krishna Rao
RVWO No. 10 of 2022
with
EC/873/2015
APOT No. 124 of 2021
APOT No. 141 of 2021
IA No. GA/1/2022
SURESH KUMAR JAIN AND ORS.
Vs.
HULASH CHAND JAIN AND ORS.
Appellants : Mr. Sourav Roy
Mr. Nirmalya Dasgupta
Respondents : Mr. S. K. Saha
Mr. S. K. Mukherjee
Mr. Surajit Nath Mitra
Heard on : 31.03.2023
Judgment on : 19.06.2023
Subrata Talukdar, J. :- By way of the present review application, being RVW
10 of 2022, the review applicants seek review of the Judgement and Order of
this Bench dated 11th February 2022 in GA No. 1 of 2021 and GA No. 2 of
2021 with APOT 4 of 2021 and APOT 141 of 2021
By the said Judgement and Order this Bench was pleased to, inter alia,
hold as follows:-
"Having heard the parties and considering the materials placed
at this stage, this Court is persuaded to agree with the stand
taken by the appellants that the Award is composite and
contains reciprocal obligations.
This Court, prima facie, is satisfied that in view
of the reciprocal obligations involved in the Award and the fact
that the parties were pursuing their execution applications in
the Kolkata Court, allowing the respondents to unilaterally
resile from the execution proceedings at Kolkata and thereby
sending both the parties to pursue a parallel remedy at Jodhpur
is a step which may not be legally permissible in the context of
the present facts.
In the back drop of the above discussion, there shall
be an interim order in terms of prayers (b) and (c) of
GA/1/2021 in connection with APOT/124/2021 until further
orders. The parties shall file their respective affidavits to
GA/1/2021 in connection with APOT/124/2021. In view of the
fact that the prayer in GA/1/2021 is for recall of the order of
the Hon'ble Single Bench refusing recall of its first order dated
27th April, 2021, to the mind of this Court affidavits to
GA/1/2021 in APOT/141/2021 may not be necessary. Let the
matter appear next under the heading 'Application (Assigned)'
after four weeks from this date.
Later: - Mr. Dasgupta led by Mr. Ray, learned counsel for the
respondents, submits that his clients are ready to pursue their
remedy in the Execution Proceedings before the Kolkata Court.
In such view of the matter, the order in terms of prayers (b) and
(c) (supra) are made absolute.
In the light of such submissions the respondents being
now interested to pursue their remedy in EC/873/2015 before
the Kolkata Court, the orders impugned dated 27th April, 2021
and 26th July, 2021 stand set aside.
APOT/124/2021 along with IA No:
GA/1/2021 and APOT/141/2021 along with IA No:
GA/1/2021, GA/2/2021 stand thus allowed. Since affidavits
are not invited, other allegations are deemed not to be admitted.
"
The review applicants submit that the Hon'ble Division Bench failed to
appreciate the principle of law that a decree can be executed in more than one
place. Relying on the authority reported in AIR 1970 SC 1525, the review
applicants submit that simultaneous execution proceedings in more than one
place is permitted.
It is submitted that Section 39 of the Code of Civil Procedure also
permits simultaneous execution of a decree. It is argued that following the
above noted principles, an Arbitral Award can be executed anywhere in the
country. Therefore, the review applicants, who are also beneficiaries of a
common Arbitral Award, are entitled to execute the same at Courts in Jodhpur,
Rajasthan where the properties are situated.
The review applicants further submit that the purported concession
recorded by the Order dated 11th February, 2022 is not actionable in the
absence of specific instructions to such effect being conveyed by the clients to
their Ld. Advocate. Since the legal right of the review applicants to prefer an
execution application in another Court of competent jurisdiction is not taken
away, the recording of a concession purportedly made by the Ld. Advocate for
the review applicants and recorded by the Order dated 11th February,2022
requires to be reviewed.
The review applicants rely on the authority of (2015) 7 SCC 373 to
stress the point that while admission of facts are binding, neither the client
nor the Court is bound by admission in matters of law or legal conclusions.
On the point that there cannot be any estoppel against the law, reliance is
placed on the judgements of the Hon'ble Supreme Court reported in (2019) 10
674 and (2021) 2 SCC 166 in this regard.
Arguing for the respondents, Ld. Senior Counsel submits that no ground
for review as prescribed by Order 47 (1) of the Code of Civil Procedure has
been made out. It is submitted that the Order of 11th February 2022 is a
consent order and the review applicants cannot be permitted to resile from
such consent.
It is further submitted that the Arbitral Award in question is a composite
Award. The said composite Award contains reciprocal obligations. Such
composite Award involving reciprocal obligations cannot be executed in several
Courts. In this connection reliance is placed on the report published in AIR
1956 SC 359. It is pointed out that the provisions of Section 39 (4) of the Code
of Civil Procedure do not apply to reciprocal obligations arising out of a
composite Arbitral Award.
Having heard the parties and considering the materials placed, this
Court does not find the legal principle which has been prima facie upheld by its
Order dated 11th February, 2022 worthy of being discarded in review. It is an
admitted fact that the Arbitral Award is a composite Award imposing reciprocal
obligations on both the review applicants and the respondents/the appellants.
Therefore the review applicants have been correctly denied unilateral
withdrawal from the execution proceedings pending at Calcutta for the purpose
of pursuing a similar remedy at Jodhpur.
Accordingly, this Court upholds its interim order as granted in terms of
prayers (b) and (c) of GA 1 of 2021 arising out of APOT 124 of 2021 to be valid
until further orders. The review applicants stand accordingly restrained from
executing the common Arbitral Award before any other Court/forum until
further Orders.
Although the submissions advanced by Learned Counsel for the
respective parties has been faithfully recorded by this Court in its order dated
11th February, 2022, nevertheless in the light of the above discussion, the
following paragraphs of the Order dated 11th February, 2022, stand deleted:
"Later: - Mr. Dasgupta led by Mr. Ray, learned counsel for the
respondents, submits that his clients are ready to pursue their
remedy in the Execution Proceedings before the Kolkata Court.
In such view of the matter, the order in terms of prayers (b) and
(c) (supra) are made absolute.
In the light of such submissions the respondents being
now interested to pursue their remedy in EC/873/2015 before
the Kolkata Court, the orders impugned dated 27th April, 2021
and 26th July, 2021 stand set aside.
APOT/124/2021 along with IA No: GA/1/2021 and
APOT/141/2021 along with IA No: GA/1/2021, GA/2/2021
stand thus allowed. Since affidavits are not invited, other
allegations are deemed not to be admitted. "
GA 1 of 2021 filed in connection with APOT 124 of 2021 shall now be
heard on affidavits as already directed.
RVWO 10 of 2022 stands accordingly disposed of.
Parties shall be entitled to act on the basis of a server copy of this
Judgement and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
I agree.
(KRISHNA RAO,J.) (SUBRATA TALUKDAR,J.)
