Mr.Uri Justman vs M/S Telephone Cable Ltd Ac+
2013 Latest Caselaw 4297 Del

$~ S-1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     EX.P. 102/2006

%                                             Judgment dated 20.09.2013

      MR.URI JUSTMAN                                     ..... Decree Holder
               Through:           Mr.Rajiv Tyagi and Mr.Ajay Kumar, Advs

                         versus

      M/S TELEPHONE CABLE LTD AC+         ..... Judgement Debtor
               Through: Ms.Jyoti Mendiratta, Advocate

      CORAM:

             HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
EX.APPL.(OS) 43/2012
1.    This is an application seeking condonation of 42 days delay in filing the
      application [EX.APPL.(OS) 42/2012], seeking review of the order dated
      1.11.2011.
2.    For the reasons stated in the application, the application is allowed. Delay
      in filing the application [EX.APPL.(OS) 42/2012] is condoned.
3.    Application stands disposed of.
EX.APPL.(OS) 42/2012
4.    Review is sought of the order dated 1.11.2011 by which the objections
      filed by the judgment debtor were dismissed by this court on the ground
      that the same had been filed beyond the period of limitation. Counsel for
      the review petitioner submits that counsel who made a statement that the
      objections which were pending were objections filed under Section 34 of
      the Arbitration & Conciliation Act, 1996 was neither authorized to make


Ex.P.No.102/2006                                                     Page 1 of 5
       such a statement nor her Vakalatnama was on record and further this
      statement was against the very record of this case.
5.    It is also submitted that the objections under Section 34 of the Arbitration
      & Conciliation Act, 1996 cannot be filed in an execution petition.       The
      affidavit of the concerned counsel has also been filed on record.
6.    Mr.Tyagi, counsel for the decree holder submits that the present review
      petition is misconceived and is a gross abuse of the process of the court
      and is yet another attempt to deny the decree-holder the fruits of the
      award. It is submitted that the decree-holder was forced to seek transfer
      of the execution petition on the ground that one of the directors of the
      judgment debtor was the daughter of the former Chief Minister of the
      State where the execution was pending and the decree holder did not
      expect a fair hearing. It is submitted that the judgment debtor as also the
      court of Additional District Judge at Chandigarh had treated these
      objections to be the objections under Section 34 of the Arbitration &
      Conciliation Act, 1996, as noticed by this court in the order dated
      1.11.2011 more particularly the fact that issues were framed which would
      show that the court was treating the objections as objections under Section
      34 of the Arbitration & Conciliation Act, 1996. The following issues had
      been framed:-

             "(i)    Whether there are sufficient grounds to set aside the
                     award?                                 OPP.
              (ii)   Whether the objection petition is time barred and not
                     maintainable?                          OPR.

             (iii)   Relief.

7.    Mr.Tyagi, counsel for the decree-holder submits that the fact that an issue
      was framed as to whether the objections were time barred or not and also
      whether there was sufficient ground to set aside the award, can only point

Ex.P.No.102/2006                                                     Page 2 of 5
       to one direction, i.e. the objections and the court was treating the
      objections as objections under Section 34 of the Arbitration &
      Conciliation Act, 1996.    It is further submitted that in the execution
      proceedings there is no period of limitation fixed for filing of objections
      and in case the objections were not being treated as objections under
      Section 34 of the Arbitration & Conciliation Act, 1996, such an issue
      would not have been framed. He further submits that reading of the
      objections would also show that the objections have been drafted in a
      manner that they are the objections under Section 34 of the Arbitration &
      Conciliation Act, 1996, barring paragraph 18 in which the judgment
      debtor has reserved its right to file objections under Section 34 of the
      Arbitration & Conciliation Act, 1996.
8.    Counsel for the decree-holder also submits that the respondents were

either ignorant of law or trying to confuse the issue to gain unfair advantage over the decree-holder. Counsel further submits that the scope of objections under Order 21 are very limited and assuming that these objections are to be treated as objections in execution proceedings even then the same deserve dismissal as a conciliator who was appointed was none other than the director of the judgment debtor company. It is submitted that the parties entered into a settlement, in terms of Section 73 read with Section 30 of the Arbitration & Conciliation Act, 1996 and it was thus treated as an award.

9. I have heard counsel for the parties and also examined the order of the Court of learned Additional District Judge, Chandigarh. In the order dated 1.11.2011 this court had inter alia noticed as under:-

"During the pendency of the execution petition, an application was filed by the decree holder under section 151 CPC. In the application it was pleaded that the award dated 26.11.1999 had become final as it had not been challenged

by the Judgment Debtors, and thus binding on the parties. It was also stated that the objection petition is not maintainable, as the same is time barred. In the order dated 03.03.2001 by which the application filed by the decree holder was dismissed, it was noticed that in reply to the said application it is pleaded that respondent had a statutory right under Section 34 of the Arbitration and Conciliation Act to raise objections and till the same are decided the award cannot be treated as a decree of the civil court entitling the decree holder to claim execution. Subsequently, the present matter stands transferred to this court.

Counsel for the judgment debtors submits that the execution petition is not maintainable, as her objections under Section 34 of the Arbitration & Conciliation Act, are pending and till the objections are decided, no order can be passed in the execution petition, in view of express language of Section 34 which makes the award unexecutable till the decision in the objections.

10. Since the counsel had made a statement that the objections should be treated as objections under Section 34 of the Arbitration & Conciliation Act, 1996, the same were dismissed as they were filed beyond the period of limitation. This court had taken into consideration the judgment of the Apex Court reported in the case of Union of India Vs. Popular Construction Company in 2001 8 SCC 470.

11. I find force in the submission made by counsel for the review petitioner that the objections under Section 34 of the Arbitration & Conciliation Act, 1996 cannot be filed in execution proceedings and it is only for this reason the order is to be reviewed, however, the order-sheets reveal that the court at Chandigarh were treating the objections as objections under Section 34 of the Arbitration & Conciliation Act, 1996. It is only for this reason that two issues were framed. Accordingly, the order dated 1.11.2011 is reviewed.

12. At this stage, counsel for the judgment debtor was requested to address

arguments on the objections which are pending. Counsel for the judgment debtor submits that evidence is being led in the matter and till the evidence is complete, she cannot address arguments in the matter.

13. Mr.Tyagi, counsel for the decree holder submits that he will make an application before the concerned court for striking off the issues and also there is no necessity of leading any evidence in the matter and that the objections should be decided on merits.

14. In view of above, the review petition stands allowed. EX.P. 102/2006

15. List the matter before Roster Bench on 29.11.2013, the date already fixed.

G.S.SISTANI, J SEPTEMBER 20, 2013 ssn