Ganapati Mansion Pvt. Ltd vs Dinesh Kumar Srivastava & Anr
2023 Latest Caselaw 1524 Cal

S/L 182
01.03.2023

Court No.652 SD CO 3621 of 2022 With CAN 1 of 2023 With CAN 2 of 2023 Ganapati Mansion Pvt. Ltd.

Vs.

Dinesh Kumar Srivastava & Anr.

Mr. Rahul Karmakar Mr. Sounak Mukherjee Mr. Sourav Guchhait ... for the Applicant/Petitioner.

Mr. Bibek Jyoti Basu Mr. Sandeep Prasad Shaw Ms. Ankita Mukherjee ... for the Opposite Parties.

This application being CAN 1 of 2023 has been sought

for modification of the order dated January 19, 2023 passed

by this Court in CO 3621 of 2022 and the application being

CAN 2 of 2023 has been filed by the opposite parties of the

main application, wherein the petitioner has prayed for

recalling of the order dated 19.01.2023 and to pass dismissal

order in connection with the revisional application and the

application for modification respectively.

By the aforesaid order dated 19.01.2023 this Court

was pleased to make a direction upon the learned Civil Judge

(Senior Division), 2nd Court at Barasat to make expeditious

hearing of the Arbitration Execution Case No.10 of 2020

arising out of A.P. 740 of 2016 and to make every endeavour

to conclude the entire proceeding of the said execution case

preferably within a period of six months from the date of

communication of the order.

The said order was passed on the basis of an

application made by the petitioner for a direction upon the

court below for expeditious hearing of the execution case. It

is noted in the said order that after the conclusion of

arbitration proceeding, an award has been passed on

27.02.2019. It has also been noted, on the basis of the

petitioner's submission, that the said award has been

accepted by both the parties and it has not been challenged

and after waiting the statutory period, they have put the

award into execution. It has been further noted in the said

order on the basis of the submission made by the petitioner

that the opposite party never appeared or contested the

arbitration execution case and the petitioner is suffering for

no fault of his own and the petitioner is devoid of enjoying

the usufructs of the award.

This Court on the basis of the submissions made by

the petitioner came to a conclusion that the prayer is

innocuous and if without serving notice upon the other side

the revisional application is disposed of, neither party will

have any cause to prejudice and on the basis of the same, this

court was pleased to dispense with the service of the copy of

the revisional application upon the opposite parties.

Now, by filing CAN 1 of 2023 the petitioner contends

that the statements made in the application that the award

has been accepted by both the parties, and that it has not

been challenged, as noted in the order on the basis of

petitioner's averment is not correct because an application

under Section Section 34 of the Arbitration and Conciliation

Act, 2006 being Misc. Case No.138 of 2019 has been filed

before the learned Additional District Judge, Fast Track

Court-III, Barasat and the petitioner has been duly

contesting the same, though no stay order has been granted

in favour of the opposite party and the same is still pending.

He further submits that due to gap in communication

between the petitioner and the learned advocate this

misunderstanding has arisen and the learned advocate

wrongfully made such submission before the Hon'ble Court

without malice or mala fide intention on the part of the

petitioner or his learned advocate and that is why the

petitioner has filed the aforesaid application for

modification.

In CAN 2 of 2023 the applicant/opposite parties of

the main application contended that the petitioner was all

along aware about the said proceeding under Section 34 of

the Arbitration and Conciliation Act and as such, they had

filed written objection in the said proceeding and is

contesting the same. Accordingly, they were all along aware

about the said proceeding but in spite of that, in order to

mislead the court and to procure order in their favour they

have made misrepresentation before the court, intentionally.

In this context, they have relied upon various

judgments reported in (2010) 4 SCC 728, (2011) 15 SCC

111, (2010) 8 SCC 383 and two unreported

judgments one by Calcutta High Court in Sri

Krishna Barik & Anr. vs. The State of West Bengal &

Ors. and another by Hon'ble Supreme Court in M/s.

Sciemed Overseas Inc vs. Boc India Limited & Ors.

I have considered submissions made by both the

parties and also perused the order impugned.

It appears that the said order was passed on the basis

of the submissions made before the court that the said award

has been accepted by both the parties and it has not been

challenged and that the opposite parties never appeared or

contested the arbitration execution case and relying upon the

same this Court was pleased to ask the court below to make

expeditious disposal of the execution case, within a

particular period.

When it appears that the foundation of the said order

is on the basis of aforesaid wrong statement made on behalf

of the petitioner, I find that foundation of the order goes.

The petitioner before making submission before the court

should have fullest absolute disclosure on all material facts

and as without making fullest disclosure of the fact, the

petitioner has obtained the order impugned, naturally, he

will be deprived of any advantage that he may have already

obtained by means of the order, which has thus been made

on the basis of the erroneous submission of the petitioner.

In view of the above, the order dated 19.01.2023 is

hereby recalled. CAN 2 of 2023 is allowed.

CAN 1 of 2023 as well as CO 3621 of 2022 is

dismissed with a costs of Rs.10,000/-. The award winner

will pay the aforesaid costs to the award debtor within a

period of four weeks from the date of communication of the

order.

In default of making payment of cost as above, the

award winner shall be precluded from taking any step in the

execution proceeding before the court below.

Department will send a copy of this order to the

executing court immediately.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)