National Agriculture ... vs Alimenta Sa
2015 Latest Caselaw 3031 Del

$~6 & 11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    EFA(OS) No.25/2014 & CM Nos.18215-18216/2015, CM
     No.180/2015

     NATIONAL AGRICULTURE CO-OPERATIVE MARKETING
     FEDERATION OF INDIA LTD (NAFED)            ..... Appellant
                  Through   Mr.T.K. Ganju, Sr. Adv. with
                            Mr.Aquib, Adv., Mr.Manik
                            Ahluwalia, Adv., Mr.Abhishek
                            Bhardwaj, Adv

                                     Versus

     ALIMENTA SA                                              ..... Respondent
                             Through        Mr.Arvind K. Nigam, Sr. Adv. with
                                            Mr.Shailendra Swarup, Adv.,
                                            Ms.Aparajita Swarup, Adv.,
                                            Ms.Bindu Saxena, Adv. & Ms.Sakshi
                                            Athwani, Adv.

                                     WITH

           +       FAO(OS) No.104/2015 & CM Nos.4160-4161/2015
     NATIONAL AGRICULTURE CO-OPERATIVE MARKETING
     FEDERATION OF INDIA LTD (NAFED)          ..... Appellant
                  Through   Mr.T.K. Ganju, Sr. Adv. with
                            Mr.Aquib, Adv., Mr.Manik
                            Ahluwalia, Adv., Mr.Abhishek
                            Bhardwaj, Adv.

                                     Versus

     ALIMENTA S.A                                             ..... Respondent
                             Through        Mr.Arvind K. Nigam, Sr. Adv. with
                                            Mr.Shailendra Swarup, Adv.,
                                            Ms.Aparajita Swarup, Adv.,
                                            Ms.Bindu Saxena, Adv. & Ms.Sakshi
                                            Athwani, Adv.



           EFA (OS) No.25/2014 & FAO(OS) No.104/2015                 Page 1 of 14
 CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S.TEJI

                       ORDER

% 16.04.2015

1. By way of these appeals, the appellant-National Agriculture Co-

operative Marketing Federation of India Ltd. (hereinafter referred to as

"NAFED"), assails the order dated 21st August, 2014 passed by the

learned Single Judge in EA (OS) No.573/2012 filed by the respondent

herein under Sections 151-152 of the Code of Civil Procedure (`CPC').

By way of this application, the respondent has sought rectification of the

decree dated 28th January, 2000 passed in CS (OS) No.1885 of 1993.

2. By an order passed on 30th November, 2012, the learned Single

Judge held that the application deserves to be transferred to the file of CS

(OS) No.1885/1993 as rectification of the decree drawn up therein was

prayed. The Registry, however, did not do so. We find that for reasons

of expediency, the learned Single Judge has considered the application as

filed. However, it has been directed that the order thereon, be treated as

an order passed in an interlocutory application in CS (OS) No.1885 of

1993. The learned Single Judge has also directed the Registry to number

the application as an interlocutory application filed in CS (OS)

No.1885/1993.

3. The said application came to be considered and was allowed by the

learned Single Judge by the order dated 21st August, 2014. In view of the

position that the order was directed to be recorded in the suit, the

appellant, as a matter of abundant caution, has filed FAO(OS) No.104 of

2015 assailing the order dated 21st August, 2014 as directed to have been

passed in the suit. So far as the order dated 21 st August, 2014 recorded in

the execution petition is concerned, the appellants have filed EFA (OS)

No.25 of 2014. The appeals raise identical questions of fact and law and

are consequently taken up together for adjudication.

4. The facts giving rise to the instant appeals are within the narrow

compass and are also undisputed. Arbitration proceedings between the

parties culminated in a foreign Arbitral Award dated 15th November,

1989 whereby the principal amount of US$ 4,681,000 (US dollars four

million six hundred and eighty one thousand) was awarded in favour of

the respondent no.1 herein with interest thereon at the rate of 10.5%

w.e.f. 13th February, 1981 to the date of the Award dated 15th November,

1989.

5. NAFED assailed the said Award and this appeal came to be

decided on 14th September, 1990. By the Appellate Award, the principal

amount awarded was reduced to US$ 4,526,000 with higher interest at

the rate of 11.25% w.e.f. 13th February, 1981 to 14th September, 1990 i.e.

the date of the appellate award.

6. Proceedings were consequently initiated by the respondent under

Section 5 read with Section 6 of the Foreign Awards (Recognition &

Enforcement) Act, 1961 for filing and enforcement of the Appeal Award

dated 14th September, 1990 and for a judgment and decree in terms

thereof to be passed. These proceedings were registered as CS (OS)

No.1885 of 1993 on the Original Side of this court.

7. It is noteworthy that in its application [CS (OS) No.1885/1993], the

appellant, inter alia, prayed for an order for deposit of "US$ 4,526.000".

Mr.Arvind Nigam, learned Senior counsel for the respondent has drawn

our attention to the fact that as is the practice, following the International

Currency Depiction Policy, instead of use of a comma (,) as a

punctuation, a decimal point(.) is interchangeably used. For this reason,

before the triple zeros in the amount mentioned in the prayer clause, the

respondent had affixed a decimal point.

8. We may usefully extract the first three prayers of CS (OS) No.1885

of 1993 which reads thus:-

"(a) to Order that the Award of arbitration dated 15th November, 1989 and confirmed by the Appeal Award dated 14.9.1990 by the Board of Appeal of Federation of Oil Seeds and Fats Association Ltd. (FOSFA)(Annexures B & C hereto) be filed in this Hon'ble Court.

(b) Pronounce judgment according to the Award and pass a decree upon judgment being so pronounced.

(c) Award and order payment of interest @ 18% p.a. from the date of the Award till payment/realisation."

9. The suit came to be finally decided when objections raised by the

NAFED against the grant of the prayers were rejected by the judgment

dated 28th January, 2000. We find that the learned Single Judge has

specifically held that the respondent is entitled to the relief prayed for in

the petition and consequently issued the directions rejecting the

objections. In para 84, the learned Single Judge directed as follows:

"84. Accordingly, the petition is allowed with costs. C.Ms 1540/96 and 2562/96 are dismissed. Decree in terms of this order shall be prepared by the registry."

The learned Single Judge, thus, affirmed the Appeal Award and

specifically directed that a decree in terms of the said judgment be

prepared by the Registry.

10. The above narration would amply make it clear that the decree

which was to be drawn up by the Registry, was required to confirm to the

Arbitral Award dated 15th November, 1989 as modified by the appellate

Award dated 14th September, 1990. Unfortunately, the decree which was

drawn up (certified copy whereof was given to the parties), contained the

following errors:

(i) In the third paragraph of the decree: Amount directed to be deposited by NAFED read as US$ 4526.00 with interest @11.25%. The correct figure was US$ 4,526,000/- in terms of principal amount awarded as per Appeal Award dated 14.09.1990 with interest @ 11.25%.

(ii) In the third paragraph of the decree: Interest @ 11.25% p.a. on principal amount directed to be deposited in

court (which should read as US$ 4,526,000/- as submitted in sub-point (i) above) is directed to be paid with effect from 13.02.1981 to 15.11.1989, i.e. date of the original Award. This should have read as being with effect from 13.02.1981 to 14.09.1990, i.e., the date of the Appeal Award, as provided in Appeal Award itself.

(iii) In the first paragraph of the decree: it is stated that the Award dated 15.11.1989 and Appeal Award dated 14.09.1990 are appended as Annexure `A' and `B'. Instead the copies of the said Awards which had been provided along with the Decree were marked as Annexures `B'and `C' respectively, along with the Decree.

11. It appears that without scrutinizing the decree and therefore

without noticing the above errors which had crept into it, the respondent

filed Execution Petition No.204 of 2002. We are informed that the

appellant herein filed a reply to the execution petition pointing out the

afore-noticed defects. The errors came to light consequently.

12. As a result, the respondent filed EA (OS) No.573 of 2012 under

Sections 151 & 152 of the CPC, seeking rectification of the errors. The

respondent, it appears, took the stand that in view of the clear directions

in the judgment dated 28th January, 2000, the decree had to be so treated

and execution thereof had to be directed.

13. We have heard learned senior counsel for both parties who have

carefully taken us through the entire record of the case. From a reading

of the impugned order dated 21st August, 2014, which position is not

disputed before us, we find that Mr.T.K. Ganju, learned senior counsel

for the appellant had fairly conceded that the third error aforenoticed to

the effect that the appellate Award dated 14th September, 1990 should

form part of the decree and the error by the Registry in referring to the

annexure numbers as well as failing to enclose the Awards with the

decree, was correct. The learned Single Judge had passed the order

accordingly so far as this objection was concerned. This position is not

challenged by the appellant. The appellant has assailed the findings and

directions on the other two objections by these appeals.

14. We hereafter summarise our findings from the record of the

aforestated grievance of the respondent establishing the errors which had

crept into the decree which was prepared by the Registry of this Court:

(i) The appellant-NAFED had assailed the judgment dated 28th

January, 2000 by way of FAO (OS) No.205 of 2000 wherein an order

was passed directing NAFED to secure the principal decretal amount

awarded by the appellate Award dated 14th September, 1990, by a bank

guarantee. In compliance thereof, NAFED had furnished a bank

guarantee for a sum of Rs.22.5 crores which was the rupee equivalent to

US$ 4,526,000 (the amount directed by the appellate Award dated 14th

September, 1990). This shows that NAFED itself understood that the

decretal amount was US$ 4,526,000.00.

(ii) NAFED filed a reply to Execution Application No.434 of 2011

filed in Execution Petition No.204 of 2002 admitting as follows:-

".... In any event the principal amount has been duly secured by the Judgment Debtor by way of Bank Guarantee of Rs.22.5 crores which has now been invoked pursuant to the Orders passed by the Hon'ble Supreme Court and is lying with this Hon'ble Court."

(iii) The same stand was taken in Execution Application No.62 of 2012

filed by NAFED in Execution Petition No.204 of 2002 when it is stated

that "the amount of Rs.22.5 crores, which are already lying deposited in

this Hon'ble Court on account of the principal amount under the

judgment/decree dated 28.01.2000."

(iv) NAFED filed a reply to Execution Application No.573 of 2012 in

Execution Petition No.204 of 2002 again stating that "the Judgment

Debtor has already furnished security for a sum of Rs.22.5 Crores,

through an Affidavit dt.19.09.2002....."

15. In addition to the above unequivocal and clear admissions of the

decretal amount, we are informed by Mr.Arvind Nigam, learned senior

counsel for the respondent that NAFED had made admissions in writing

in other pleadings as well. It appears that NAFED filed CM No.545 of

2002 in FAO(OS) No.205 of 2000 wherein in para 3, it stated thus:-

"3......The principal amount under the Foreign Award is a sum of US$ 45,26,000/- besides the cost of 9,345 sterling pound. This on the basis of current prevailing exchange rate of US$ equivalent to Rs.45 approximate, the total principal amount comes to approximately Rs.20.36 crores and the legal cost in 6.54 lacs."

(Emphasis by us)

We may note that this application was handed over to learned

Single Judge at the time of argument in EA (OS) No.573 of 2012 and has

been extracted in para 9 of the impugned order dated 21st August, 2014.

16. In the affidavit of the Additional Managing Director (F & A) of

NAFED dated August, 2002 filed as annexure `A' to NAFED's

reply/objection filed in FAO (OS) No.205 of 2000, it was deposed thus:-

"xxx 4. I say that as per the above order, the appellant had to furnish security for the principal amount decreed to the Registrar of this hon'ble court. The principal amount under the Foreign Award is a sum of US$ 45,26,000/- besides the cost of 9,345 pound sterling. This on the basis of current prevailing exchange rate of the total principal amount comes to approximately Rs.20.36 crores and the legal cost is approximately 6.43 lacs as stated in CM No.545/2002."

(Underlining by us)

17. NAFED filed an application for modification of the order dated

25th October, 2010 passed by the Supreme Court of India in SLP (Civil)

No.28325 of 2010 affirming as follows:-

"The applicant submits that the aforesaid directions in the decree are not in accordance with and in fact in excess of the award as the award as would be seen from page 117 of the SLP paper book has only directed payment of US$ 11.25% p.a. from February 13,1981 to date of award i.e. September 14, 1990 and costs and expenses of appeal amounting to U.K. Pound 9344.55 and no other amount. It has not granted any interest from the date of award till payment."

(Emphasis supplied)

18. These admissions on behalf of NAFED have been repeatedly made

in writing on court records. They have not been disputed before us.

Even otherwise, it is unnecessary to travel beyond the original Award

dated 15th November, 1989; the Appeal Award dated 14th September,

1990 and the judgment dated 28th January, 2000. The learned Single

Judge on 28th January, 2000 had held that the appellant was entitled to a

judgment and decree in terms of the arbitral award. As a consequence

thereof, the Registry was directed to draw up a decree in terms thereof.

Unfortunately, while drawing up the judgment and decree, the Registry

has failed to take into consideration the specific directions contained in

the Appeal Award dated 14th September, 1990 regarding the amount

awarded as well as the rate and period of interest. It cannot be disputed

that the decree has to strictly abide by the terms of the judgment.

19. Before us, the appellant has contended that the decree which has

been drawn, is in accordance with the prayer made in the suit. We have

noted heretofore that the international practice (with regard to using a

decimal point instead of using comma while setting out large figures) is

the practice which has been followed by the respondent in the prayer

clause in the suit. The decree required to substitute the decimal point by

a comma or reproduce the figure with the decimal point which was not

done. In any case, the figures had to comport with those in the Award.

The admissions which we have noted above would show that the

appellant had also correctly understood the judgment dated 28th January,

2000 as well as its liability under the award and decree.

In view of the above, we find no infirmity in the order dated 21st

August, 2014 to the extent that it allowed EA (OS) No.573/2012

directing rectification of the figures in the decree in the suit to the above

extent.

20. It also appears that EA (OS) No.434 of 2011 was filed by the

respondent herein under Order 21 Rules 41 & 54 read with Sections 51 &

151 of the CPC. By this application, the respondent prayed for the

following prayers which have been extracted in para 14 of the impugned

judgment:-

"14. This is an application filed by the DH whereby four prayers are made. These being: (a) disclosure of assets, both movable and immovable, and particulars of the bank accounts, by the director of the JD; (b) immediate attachment of movable and immovable properties; (c) injunction on the JD from alienating, transferring, creating a charge or third party interest in the movable and immovable properties; and (d) appointment of a receiver."

21. After disposing of the EA (OS) No.573 of 2012 directing

rectification of the decree, the learned Single Judge has also heard and

decided EA (OS) No.434 of 2011 and directed appointment of a court

receiver.

22. We now come to the second limb of challenge to the order dated

21st August, 2014. It is submitted by Mr.T.K. Ganju, learned senior

counsel that the appellant has filed objections to the execution of the

decree. It is submitted that further proceedings in the execution case can

take place only after the rectification is formally effected and a formal

decree sheet is placed on record. He would, further submit that further

proceedings in the execution can take place only after the objections to

the execution are decided by the learned Single Judge. For this reason,

the appellant is assailing the order passed in EA (OS) No.434 of 2011 at

the same time. We find that on the 21st of August, 2014, without issuing

directions for taking possession or custody of property, the learned Single

Judge has issued only limited directions to the court receiver to ascertain

the details of movable and immovable properties of the appellant. The

learned Single Judge has directed the court receiver also to submit a

report as to which of the properties are free from encumbrances; the

extent of encumbrance of the encumbered property and their present

market value. The learned Single Judge has postponed the consideration

of the prayers "(b)" & "(c)" made in the application for attachment and

injunction.

23. So far as the grievance of the appellant on the requirement of a

formal decree sheet in terms of the order for rectification for maintaining

the execution petition is concerned, the same is justified. Certainly, it

would not be appropriate to proceed with the execution in the absence of

the corrected decree.

24. However, so far as the challenge to the directions of appointment

of the receiver, in view of the limited directions issued by the order dated

21st August, 2014 are concerned, we find the directions of the learned

Single Judge to be fair. The limited directions are really for the purposes

for gathering information which would facilitate the court for moulding

appropriate relief in the execution. The same is in the interest of justice

and in our view, cannot be faulted.

25. So far as the adjudication on the objections of the appellant is

concerned, the same are still pending. It is open for the appellant to press

adjudication thereof prior to further directions by the learned Single

Judge in the execution case which request as and when made, shall be

considered by the learned Single Judge in accordance with law.

26. In view of the above, challenge to the orders dated 21st August,

2014 passed on EA (OS) No.573/2012 is rejected. The challenge to the

order passed in EA (OS) No.434 of 2011 is accepted only to the above

extent.

The Registry shall forthwith prepare a decree sheet in accordance

with the orders dated 21st August, 2014 passed by the learned Single

Judge, in any case, not later than two weeks from today.

It shall be the responsibility of the respondent to place the decree

sheet on record of the execution case. Further proceedings in the

execution case shall be kept in abeyance till the rectified decree sheet is

produced on record.

There shall be, in the given facts and circumstances, no orders as to

costs.

These appeals are disposed of in the above terms.

GITA MITTAL, J

P.S.TEJI, J APRIL 16, 2015 aa