Hotel Corporation Of India vs State Bank Of India And Ors.
2002 Latest Caselaw 306 Del

JUDGMENT

Manmohan Sarin, J.

1. CM 2391/2002 is an application moved by the petitioner, seeking directions for staying the operation of communication dated 9.2.2002, addressed by respondent No. 1 to the petitioner and for permitting the petitioner to operate its bank account No. 7001 at New Delhi maintained with respondent State Bank of India.

2. It may be noted that the writ petition had come up for admission before the Court on 21.2.2002, when notice to show cause was directed to be issued for 14.3.2002 as well as notice was directed to be issued in CM. 2165/2002 for stay. Process fee was not filed and the present application (CM.2391/2002) has been moved, seeking an ex parte stay at this stage of letter dated 9.2.2002 and for directions to operate the Bank account of petitioner with respondent No. 1.

3. As the matter has been extensively argued, the entire writ petition is taken up for disposal with the consent of parties.

4. Learned senior counsel for the petitioner, Mr. Rajiv Nayyar submitted that the Hotel Corporation of India, petitioner in this case, had disputes with respondent No. 2 contractor in respect of work done by the latter at the Hotel Centaur at Srinagar. The disputes were referred to the arbitration and an award was passed in favor of respondent No. 2. Objections filed by the petitioner in the High Court of Jammu and Kashmir were also dismissed and award was made rule of the Court and decree dated 27.8.1992 was passed. It is stated that the appeal preferred against the award being made rule of the Court, was also dismissed by the Division Bench of the High Court of Jammu and Kashmir. Learned counsel for the respondent No. 2, Mr. Sandeep Sharma, points out that SLP filed against the judgment of the Division Bench was also dismissed. It would be seen that the decree has become final. An application for execution was filed. The Executing Court issued warrants of attachment, in pursuance to which the judgment debtor's accounts were attached in Bombay as well as in Delhi. It appears that the petitioner filed a civil writ petition in the High Court of Bombay, wherein certain orders were passed by the Division Bench of 8.2.2002, whereby the petitioner was restrained from transferring or disposing of the immovable assets i.e. Centaur Hotel, Mumbai. Petitioner was also permitted to take appropriate proceedings before the Court in Jammu and Kashmir within two weeks and pending that a restraint order was passed by which the bank was restrained from remitting amounts from the account to the District Court, Jammu. This order was made, subject to further directions to be passed by the Court. The petitioner was permitted in the meanwhile to operate the account.

5. Learned counsel for the respondent No. 2/decree holder has submitted that the writ petition, as filed by the petitioner in the High Court of Bombay, has since been dismissed. Time was granted till 1.3.2002 to obtain appropriate orders from the Court of Jammu and Kashmir. Further, petitioner was directed that if it failed to obtain requisite orders, it would make good the short fall in the account in Bombay and restore the account to its original position prior to 8.2.2002.

6. Mr. Nayyar has urged before me that the petitioner is a public corporation and has to meet the statutory liabilities and, therefore, petitioner could be put on terms and restraint order, prohibiting the petitioner from operating the account, be stayed. He also submitted that petitioner would maintain the balance, as prevailing in the account as of today. Learned counsel makes a fervent plea that the order passed by the Executing Court is without jurisdiction inasmuch as it seeks to attach the accounts, which are outside its territorial jurisdiction. I am, however, not inclined to entertain this writ petition for the following reasons:-

7. Learned counsel for the petitioner submitted that petitioner has a balance of Rs. 1.5 lacs or so in the Delhi Account and it would maintain the said balance and be permitted to operate the account. In practical terms, what the petitioner is seeking to be permitted to operate the account i.e. to deposit all the receivables that it may have received and utilise the same for its business purposes and meeting the expenses what the counsel terms as statutory liability. The net result of permitting the petitioner to operate the account, would be that the petitioner would deposit all the receivables and then utilise the said money for its business or other expenses, without payment towards the decretal amount. The net result would be that the decree-holder/creditor, who has obtained the decree and which is pending execution, will not receive any amount out of the amount that may have been received by the petitioner. This could defeat the rights of the decreeholder/creditor. In my view, the appropriate course for the petitioner would be to move the Executing Court in Jammu & Kashmir for seeking directions from the Court with any proposal that it may have for deposit of the amount in Installments rather than moving this Court for staying the order of the Executing Court in writ jurisdiction. It may be noted that even if the petitioner may have an arguable case with regard to the attachment of the account in Delhi, as not being within the territorial jurisdiction and competence of the Court of Jammu & Kashmir, this Court in writ jurisdiction would decline to interfere, if such interference would tend to defeat the course of justice rather than advancing it. The petitioner also did not disclose in the petition, except during the course of arguments, when learned counsel for the respondents pointed out that the writ petition filed by the petitioner in the High Court of Bombay has also been dismissed with liberty and time being granted to the petitioner to move the appropriate court in Jammu and Kashmir.

8. In view of the foregoing discussion, I do not find this to be a fit case to be entertained in exercise of writ jurisdiction under Article 226 of the Constitution of India. Dismissed.

9. Dismissed.