Delhi High Court
Punj Lloyd. Ltd. vs Great Eastern General Insurance ... on 13 June, 2018
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ E.F.A. (O.S.) No. 08/2018
PUNJ LLOYD. LTD. .....Appellant
Through: Mr. Rajiv Nayar, Sr. Adv. with Ms. Anju
Jain, Mr. Rishi Agrawala, Ms. Niyati Kohli
and Mr. Hitesh Sachar, Advocates.
Versus
GREAT EASTERN GENERAL INSURANCE LIMITED (EARLIER
KNOWN AS THE OVERSEAS ASSURANCE CORPORATION
LIMITED) .....Respondent
Through: Mr. Arun Kathpalia, Sr. Adv. with Mr.
Moazzam Khan, Ms. Shweta Sahu and Mr.
Brijesh Kumar, Advs.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 13.06.2018
C.M. No. 25117/2018, 25118/2018 (Exemption)
Allowed, subject to just exceptions.
Applications stand disposed of.
CM No. 265116/2018 (Stay)
1. Present application has been filed under Section 151 of the Code of
Civil Procedure, 1908 (hereinafter 'CPC') by the appellant seeking
stay of the operation of the impugned order dated 29.05.2018 passed
by the ld. Single Judge in Execution Petition No. 148/2016, directing
issuance of warrants of attachment of three bank accounts and five
trade receivables of the appellant.
2. Factual scenario of the instant case is such that an execution petition
was filed before the ld. Single Judge of this Court by the respondent/
decree holder seeking execution of the judgement passed by the High
Court of Republic of Singapore for S$18,954,966.86, alongwith
interest @ 3%. Pending final disposal of the said execution
proceedings, the ld. Single Judge has granted interim relief to the
respondent vide the impugned order dated 29.05.2018 whereby
warrants of attachment have been issued qua the appellant's
properties, returnable on 04.10.2018.
3. Mr. Rajiv Nayar, learned Senior counsel for the appellant submits that
the impugned order is per se illegal and is liable to be set aside as
there exists no prima facie case in favour of the respondent for grant
of such interim relief; that the objections to the execution petition
filed by the appellant are pending consideration wherein the
maintainability of the said execution petition on the ground of
jurisdiction of this Court has been challenged besides other
objections; that without adjudicating the objections raised by the
appellant in the execution proceedings and without determination of
balance of convenience in favour of respondent, the Impugned order
of attachment could not have been passed; that as all the movable and
immovable assets of the appellant company have been charged to the
lender banks in terms of the Common Loan Agreement dated
21.05.2016 and Working Capital Consortium Agreement dated
21.05.2015, the process of attachment as directed vide the impugned
order would jeopardize not only the interests of the appellant but also
of the secured creditors ; that no attachment could have been ordered
as the appellant company is undergoing Corporate Debt Restructuring,
which fact was also brought to the knowledge of the ld. Single Judge
vide affidavit dtd.19.04.2018 besides envisaging the pari passu charge
on all present and future assets of the appellant company; that hence
the stay on the operation of the impugned order be granted, as prayed
for.
4. Refuting the submissions of the learned Senior counsel for the
appellant, Mr. Arun Kathpalia, learned Senior counsel for the
respondent argued on the maintainability of the present appeal and
submitted that the impugned order is not appealable as the same is
neither a judgement under Section 10 of the High Courts Act, 1966,
nor an order under Order XLIII Rule 1, CPC. Learned Senior Counsel
further submits that the impugned order does not constitute an order
under Order XXI Rule 43 and Rule 46 against which an appeal lies.
5. On the plea raised by the appellant as to the jurisdiction of this Court
to entertain execution petitions under Section 44-A of CPC, learned
senior counsel for the respondent submits that the question of
jurisdiction has been well settled in a catena of judgements of the
Apex Court including the one rendered in M.V. AL. Quamar v.
Tsavliris Salvage (International) Ltd. And Others reported in AIR
2000 SC 2826. Furthermore the reliance placed by the appellant on
the judgement of the Division Bench of this Court in Goyal Mg Gases
Private Ltd. v. Messer Griesheim Gmbh reported in (2014) 7 HCC
(Del) to negate the jurisdiction of this Court under Section 44-A CPC
is clearly misplaced as the said judgement has been stayed by the
Apex Court vide its order dated 01.09.2014 in
SLP (C) No.22539/2014.
6. Reliance is placed on the decision of the Supreme Court in Shah
Banulal Khimji v. Jayaben D. Kania reported in AIR 1981 SC 1786,
by the learned senior counsel for the respondent to argue that only
against the interlocutory orders which have trappings and
characteristics of finality or attributes of a judgement, an appeal shall
lie against such orders. Counsel submits that that as the impugned
order does not finally adjudicate upon the rights of the parties, the
same shall not be appealable.
7. Arguments heard.
8. Vide the impugned order dated 29.05.2018, the ld. Single Judge has
directed issuance of warrants of attachment qua three bank accounts
and five trade receivables of the appellant, returnable on 04.10.2018.
However it is the grievance of the appellant that all the assets in
respect of which warrants of attachment have been issued are
encumbered with the banks in terms of the Common Loan Agreement
dated 21.05.2016 and Working Capital Consortium Agreement dated
21.05.2015.
9. The other grounds urged by the learned Senior Counsel for the
appellant and that by the learned Senior Counsel for the respondent
needs to be adjudicated on the merits of the case.
10. Keeping in view the facts and circumstances of the present case and
that the issue of jurisdiction is pending consideration before the ld.
Single Judge who vide impugned order has not adjudicated upon the
same, this Court is of the view that the impugned order dated
29.05.2018 be stayed till 06th July 2018.
11. Matter be placed before the Roster Bench.
E.F.A. (O.S.) No. 08/2018
Issue notice to the respondent, returnable on 06th July 2018.
Dasti under the signatures of the Court Master.
SANGITA DHINGRA SEHGAL, J.
C. HARI SHANKAR, J.
JUNE 13, 2018
gr
