Raipur Municipal Corporation vs M/S Associated Software ...
2023 Latest Caselaw 19 Chatt

                                  1

                                                               NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                     WP227 No. 817 of 2022

    Raipur Municipal Corporation Through Its Commissioner,
      Near Mahila Police Thana, Gandhi Maidan Raipur, District-
      Raipur, Chhattisgarh...............(Judgment Debtor)

                                                     ---- Petitioner

                               Versus

   1. M/s   Associated Software Consultancy, A Registered
      Partnership Firm, Nagpur Road Camp, Amravati, Tehsil And
      District 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 District- Amravati Maharashtra..............(Decree Holder)

   2. HDFC Bank Limited, Through Its Branch Manager, First
      Floor, Raipur Municipal Corporation Building, White House,
      Near Mahila Thana, Raipur, Chhattisgarh.

   3. Kotak Mahindra Bank, Through Its Branch Manager, Satpal
      Chambers, Behind Police Headquarters, Near Dhand
      Compound, Civil Lines, Raipur, Chhattisgarh.

                                                   ---- Respondent

For Petitioner Mr. Sumesh Bajaj and Mr. Rishabh Bajaj, Advocates For Respondent No.1 Mr. Vikram Dixit, Advocate

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Order On Board

2/1/2023

1. Heard.

2. This petition has been filed by the petitioner being

aggrieved with the orders dated 29.11.2022 and

16.12.2022, whereby, in execution of the award dated

7.4.2018 passed by the sole arbitrator in between M/s.

Associated Software Consultancy Vs. Raipur Municipal

Corporation, the bank accounts of the petitioner-

Corporation have been attached. Therefore, the petitioner

by way of this petition prays to release the attached Bank

Accounts in its favour without deducting any amount.

3. Brief facts of the case are that the petitioner-Municipal

Corporation had invited tenders for maping surveying and

tax assessment with geographical information systems

and respondent No.1 being the successful tenderer was

awarded the work agreement dated 18.2.2002. In the said

agreement, a dispute occurred, which was referred to the

sole arbitrator, who passed the award dated 7.4.2018 in

favour of respondent No.1 to the tune of Rs.2,27,79,729/-

along with the interest @ 9% per annum along with the

other reliefs. The petitioner initially challenged the award

before this Court, which was dismissed as withdrawn vide

order dated 15.5.2019 passed in Arbitration Reference

No.11/2019 with liberty to file a duly constituted appeal

before the Commercial Court at Raipur. Thereafter, the

petitioner filed a duly constituted appeal before the

Commercial Court, Raipur on 23.7.2021, which was

dismissed on the sole ground of delay vide order dated

7.5.2022 and the said order was also challenged before the

Division Bench of this Court, which again stood dismissed

vide order dated 27.7.2022 in Arbitration Appeal

No.19/2022 and the said dismissal was affirmed by the

Supreme Court in SLP (Civil) Diary No.36061/2022 vide

order dated 13.12.2022. In the meanwhile, respondent

No.1 filed an application on 8.12.2020 for execution of the

arbitral award before the Commercial Court, Raipur and on

6.5.2022, the concerned respondent also filed an

application for attachment of the Bank Accounts of the

petitioner-Corporation. The petitioner filed their

objections under Section 47 of the CPC on 02.06.2022.

However, the Commercial Court while dismissing the

objections of the petitioner, vide order dated 29.11.2022,

also directed respondents 2 & 3- Banks for attaching the

Bank Accounts of the petitioner to the extent of Rs. 7

crores and further, vide order dated 16.12.2022, directed

the respondent-Banks to remit the amount of Rs.7 crores

from the petitioner's Bank Accounts to the Commercial

Court by way of demand draft. Being aggrieved by such

order, this petition has been filed.

4. Mr. Sumesh Bajaj, learned counsel for the petitioner, would

submit that the impugned order is patently illegal as the

Commercial Court has no jurisdiction to decide the dispute

in question. He vehemently emphasized that only the Civil

Court has jurisdiction to decide the execution case and the

Commercial Court has no power under the Commercial

Courts Act, 2015 read with the Arbitration and Conciliation

Act, 1996 along with the Code of Civil Procedure, to

execute any award. Learned counsel submits that the

impugned order(s) is dehors the jurisdiction and is coram

non judice and hence, it is in the nature of nullity. He prays

to quash the impugned order dated 29.11.2022 including

the order and letter dated 16.12.2022 issued to the

respondent-Banks.

5. Per contra, Mr. Vikram Dixit, learned counsel for

respondent No.1, would submit that learned counsel for

the petitioner has never raised such issue before the

Commercial Court that it does not have power of

execution. However, he contended that such Court has

ample power to entertain the case and the Commercial

Courts Act, 2015 and the Arbitration and Conciliation Act,

1996 are to be dealt with harmoniously along with the

Code of Civil Procedure to avoid any technicalities to

advance justice. Hence, learned counsel prays that the

petition being bereft of any merit, is liable to be dismissed.

6. Further, in alternative, learned counsel for respondent

No.1 would submit that this Court may direct the

petitioner to raise such issue before the concerned

Commercial Court with regard to the authority to execute

the award.

7. Replying to the aforesaid submission, Mr. Sumesh Bajaj,

learned counsel for the petitioner, would submit that the

objection relating to any legal matter can be raised at any

forum and since the matter relates to the root of the

authority, which passed the order, the issue pertaining to

the jurisdictional aspect can be raised at any stage.

8. Heard learned counsel for the parties at length and also

perused the record.

9. Since the petitioner has raised the issue with regard to the

jurisdiction for the first time before this Court, this Court

finds it appropriate to direct the petitioner to raise such

issue before the concerned Court itself for a better

adjudication and in case, if any adverse order is passed,

the petitioner would be at liberty to challenge such order

in accordance with law.

10.With the aforesaid observations, the petition is disposed

of.

11. Both the parties are directed to appear before the

Commercial Court, Raipur on 4.1.2023. Further, it is

directed that if any application is filed in this regard by the

judgment-debtor/petitioner within 7 days from the date of

passing of this order, the same shall be decided by the

concerned Court within further two weeks.

12. Meanwhile, the effect and operation of the impugned

order(s) shall remain stayed.

13. Learned counsel for the petitioner would be at liberty to

communicate this order to the concerned authority for

effective compliance by way of an e-mail.

14.Certified copy today itself.

Sd/-

( Deepak Kumar Tiwari) Judge

Shyna