Raipur Municipal Corporation vs M/S Associated Software ...
2023 Latest Caselaw 888 Chatt

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                                                                 NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                   Order reserved on : 23/01/2023
                    Order passed on : 10/02/2023
                        WP(227) No. 55 of 2023
      Raipur Municipal Corporation, Through its Commissioner, Near
      Mahila Police Thana, Gandhi Maidan, Raipur, Distt. Raipur (CG)

                                        ---- Petitioner/Judgment debtor
                                 Versus
1.    M/s Associated Software Consultancy, A registered partnership
      firm, Nagpur Road Camp, Amravati, Tehsil and Distt. Amravati
      (MH)

      Through its constituted attorney, Mr. Umesh Borkhade, S/o
      Krushnarao Borkhade, aged about 53 years, R/o Nagpur Road
      Camp, Amravati, Tehsil and Distt. Amravati (MH)

                                            ... Decree/Award Holder
2.    HDFC Bank Limited, Through its Branch Manager, First Floor,
      Raipur Municipal Corporation Building, White House, Near
      Mahila Thana, Raipur (CG)

3.    Kotak Mahindra Bank, Through its Branch Manager, Satpal
      Chambers,     Behind     Police    Headquarters,   Near   Dhand
      Compound, Civil Lines, Raipur (CG)

     (Respondents No. 2 & 3 are not a party respondent before the

learned Commercial Court which would be evident from the impugned orders, but are being arrayed as party respondents for the purposes of the present writ petition)

---- Respondents

For Petitioner : Mr. Sumesh Bajaj with Mr. Rishabh Bajaj, Advocates For Respondent : Mr. Harish Dangre with Mr. Vikram Dixit, Advocates.

Hon'ble Smt. Justice Rajani Dubey

C A V Order The petitioner by way of this petition under Article 227 of the

Constitution of India is seeking quashment of the impugned order

dated 29.11.2022 (Annexure P/10) and the consequential proceedings

including the orders dated 11.1.2023 (Annexure P/16) and 13.1.2023

(Annexure P/17) in Execution Case No.07/2020 pending before the

Commercial Court (District Level), Nava Raipur as also direction to the

respondent banks to release the attached bank accounts of the

petitioner without deducting any amount whatsoever pursuant to the

orders dated 29.11.2022, 11.1.2023 and 13.1.2023.

02. Along with this petition, the petitioner has filed an application IA

No.01/2023 for grant of interim relief as the Commercial Court by the

impugned order dated 29.11.2022 has attached the bank accounts of

the petitioner corporation and thereafter, vide orders dated 11.1.2023

and 13.1.2023 directed the respondent banks to deduct the amount to

the tune of Rs.7,29,40,041/- by way of demand draft in favour of the

Commercial Court. These orders and proceedings are causing serious

prejudice to the petitioner. Therefore, the petitioner has filed this writ

petition on the ground that the execution proceedings filed by the

decree holder are not maintainable before the Commercial Court as it

has no jurisdiction to entertain the said application because no

proceeding was initiated by the petitioner before the Commercial Court

under Section 34 of the Arbitration and Conciliation Act, 1996 (in short

"the Act of 1996"). The award dated 7.4.2018 was simpliciter an arbitral

award which was to be executed under the provisions of the Act of

1996 before the Principal Civil Court of original jurisdiction in a district

and therefore, the instant execution proceedings itself are illegal and

void being initiated before coram non judice.

03. In the above application for grant of interim relief, the petitioner

has prayed for staying the effect and operation of the impugned orders

dated 29.11.2022, 11.1.2023 and 13.1.2023 till final disposal of this writ

petition, in the interest of justice.

04. Learned counsel for the petitioner submits that the impugned

orders are patently illegal and erroneous and have been passed in a

cryptic and laconic manner. The Commercial Court had no jurisdiction

to entertain the application. As per Section 36 of the Act of 1996, the

award dated 7.4.2018 was to be executed under the provisions of the

Act of 1996 before the Principal Civil Court of original jurisdiction. The

proceedings of execution can be done only by the civil Court and

therefore, the present proceedings before the Commercial Court are

without jurisdiction.

In support of above contention, reliance has been placed on the

order of this Court dated 10.1.2018 passed in the matter of South

Eastern Coal Fields Limited, Chhattisgarh Vs. M/s Tirupati

Construction District Burhar reported in AIR Online 2018 Chh 1199

and the order of this Court dated 5.10.2021 passed in the matter of

SKS Power Generation (Chhattisgarh) Ltd., Mumbai Vs. M/s ISC

Projects Pvt. Ltd., Pune reported in AIR 2021 Chhattisgarh 196.

05. On the other hand, learned counsel for the respondent would

argue that the Commercial Court has ample power to entertain the

case. The Commercial Courts Act, 2015 and the Act of 1996 are to be

dealt with harmoniously along with the Code of Civil Procedure to avoid

any technicality to advance the justice. The petitioner had filed an

appeal against the impugned award which was dismissed by this Court

and subsequently affirmed by the Hon'ble Supreme Court. Now the

petitioner has filed this writ petition just to cause delay in the execution

proceedings. As per the Act of 1996 and the Commercial Courts Act,

the execution is maintainable before the Commercial Court.

Reliance has been placed on the decision of Delhi High Court in

the matter of Delhi Chemical and Pharmaceutical Works Pvt. Ltd.

and another Vs. Himgiri Realtors Pvt. Ltd. and another reported in

2021 SCC Online Del 3603 and the order of the Rajasthan High Court

in the matter of Ess Kay Fincorp Limited Vs. Suresh Choudhary

and another reported in 2020 (1) RLW 93 (Raj.).

06. Heard learned counsel for the parties on the interim application

and perused the material available on record.

07. There are decisions of the Division Bench of this Court and other

High Courts on the issue involved in this case, which are contradictory

to each other. Therefore, in the given facts and circumstances of the

case, considering the nature of interim relief sought for by the petitioner

and the contradictory decisions of the High Courts on the issue, it

would not be proper to decide the said issue at this stage. However, on

the last date of hearing, this Court has already directed that

disbursement of the attachment amount to the decree holder shall

remain stayed until further order. The matter needs to be decided after

considering the reply/rejoinder of the parties and hearing them at

length.

List this case after four weeks. Meanwhile, counsel for the

respondent to file reply.

sd/

(Rajani Dubey)

Judge Khan