M/S Reliance Enterprises vs Bharat Sanchar Nigam Ltd
2009 Latest Caselaw 1794 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+      EX.No. 193/2003

%                            Date of decision: 1st May,2009

M/S RELIANCE ENTERPRISES                   .......Decree Holder
                        Through: Mr Sandeep Sharma, Advocate

                                Versus

BHARAT SANCHAR NIGAM LTD ....... Judgment Debtor
                        Through: Mr R.V. Sinha and Mr A.S. Singh,
                        Advocates.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may No
       be allowed to see the judgment?

2.     To be referred to the reporter or not?         No

3.     Whether the judgment should be reported              No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The execution was filed of an arbitral award having the force of

a decree. At the time of filing of the execution, a sum of Rs 7,20,074

was stated to be due. Vide ex parte order dated 19th May,2003

warrants of attachment to the extent of the aforesaid amount were

issued in respect of the bank account of the judgment debtor. On

the next date it transpired that the judgment debtor had preferred

an application under Section 34 of the Arbitration Act 1996 with

respect to the award sought to be executed and on which notice had

been issued and which was pending. Vide order dated 28th July, 2003

on the statement of the counsel for the judgment debtor that

pursuant to warrants of attachment the banker of the judgment

debtor had remitted the sum of Rs 7,20,074/- to this court, the said

amount was ordered to be kept in an FDR so that there was no loss

of interest.

2. Vide order dated 30th March, 2007 the objection of the

judgment debtor to the award was dismissed and the amount of the

FDR together with interest accrued thereon was ordered to be

released in favour of the decree holder and the execution was

disposed of. It subsequently transpired that pursuant to the

warrants of attachment the money was never received in this court

and consequentially had not been kept in a fixed deposit. The

money had remained with the banker of the judgment debtor itself.

The decree holder filed EA.No.31/2008 in this regard stating that till

31st January, 2008 a sum of Rs 14,07,660.94 was due under the

arbitral award to the decree holder. The judgment debtor has filed a

reply to the said application. The judgment debtor in the said reply

had explained the circumstances in which the amount of Rs

7,20.074/- though intended to be remitted and a cheque therefor

remitted in the name of the Registrar of this court, remained in the

bank account of the judgment debtor only. The judgment debtor has

further pleaded that since this court had on the application of the

decree holder ordered attachment, the judgment debtor is not liable

for any interest thereafter. Otherwise, no error has been pointed out

in the calculation of the decree holder of a sum of Rs 14,07,660.94

being due as o 31st January, 2008.

3. The sum of Rs 7,20,074/- has since been deposited in this court

and released in favour of the decree holder. The question now is

whether the interest awarded to the decree holder under the award

ceased to run on the attachment being ordered or continued to run.

The contention of the judgment debtor is that even though pursuant

to the attachment the bank of the judgment debtor did not remit the

amount to this court, but its bank retained the said amount with

itself and not permitted the judgment debtor to withdraw the same

or to use the same and thus the judgment debtor is not liable for any

interest thereafter.

4. I have recently in M/s N.K. Garg & Co. Vs Union of

India Ex.No. 336/2008 decided on 18th March, 2009 dealt

with a similar question. It has been held that where the decree is for

payment of interest till the date of payment, the date of filing of

execution application is irrelevant and the interest allowed under the

decree would not cease to run merely because the execution has

been filed. It was further held that the interest will not cease to run

even when attachment is effected and will continue to run even

thereafter till the money is released to the judgment debtor. The

running of the interest has been found to cease only on the day when

there is no impediment to the decree holder withdrawing the money.

Support in this regard was drawn from O.R.M. P.R.M.

Ramanathan Chettiar Vs. S.L.Ramanathan Chettiar AIR 1960

Madras 207 and Kali Charan Sharma Vs. NOIDA

MANU/DE/1367/2008.

5. The counsel for the decree holder has also relied upon the

order dated 22nd January, 2009 of Division Bench of this court in

EFA(OS) 1/2007 holding that where a party chooses to challenge the

decree before the appellate forum and the appeal court grants

conditional stay, the amount deposited is only to keep the execution

of the decree in abeyance and the amount so deposited is not akin to

a tender of the amount to the decree holder and in such situation the

interest would not stop running.

6. This it is found that the interest would continue to run till the

date when the sum of Rs 7,20,074/- was ultimately deposited by the

judgment debtor in this court and when there was no impediment to

the same being released to the decree holder. The balance amount

due, be paid by the judgment debtor to the decree holder within four

weeks on a demand in writing in this regard being made by the

decree holder on the judgment debtor. If the amount is not so paid

inspite of demand, upon the decree holder filing an affidavit in this

court to the effect that pursuant to this order demand has been made

and has not been met, warrants of attachment of monies lying in

account No.503547 of the judgment debtor with the State Bank of

India, Main Branch, Parliament Street, New Delhi to the extent of

the balance amount stated to be due in the affidavit aforesaid of the

decree holder be issued.

List for reporting compliance on 31st August, 2009.

RAJIV SAHAI ENDLAW (JUDGE) May 01, 2009 M