Atlanta Ltd. vs Govt. Of Rajasthan & Anr.
2020 Latest Caselaw 3297 Del

                                                                             Via video conferencing
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                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                       Date of Decision: - 03.12.2020

                          +    OMP (ENF.) (COMM.) 10/2020 & EA No.644/2020
                               ATLANTA LTD.                              ..... Decree Holder
                                              Through: Mr. Chirag M. Shroff, Advocate

                                                  versus

                               GOVT. OF RAJASTHAN & ANR.         ..... Judgement Debtors
                                             Through: Mr. Ajay Digpaul, CGSC with Mr.
                                                      Kamal R. Digpaul, Advocate for UOI

                               CORAM:
                               HON'BLE MS. JUSTICE REKHA PALLI

                               REKHA PALLI, J (ORAL)

                               1.    This is a petition under Section 36 of the Arbitration &
                               Conciliation Act, 1996 (hereinafter referred to as 'the Act'), seeking
                               enforcement of the Arbitral Award dated 07.09.2014. Under the said
                               Award, both the respondents, i.e., the State of Rajasthan and the

Union of India through the Ministry of Shipping, Road Transport and Highways have been held liable to pay to the decree holder, a sum of Rs. 14,71,20,542/- along with post-award interest @18% p.a., which amount, as on 07.10.2020, is Rs. 30,83,32,410/-.

2. Learned counsel for the Decree Holder (DH) submits that even though the DH has preferred an execution petition against both the Judgment Debtors (JDs) before the Court of the Learned Additional District and Sessions Judge, Jaipur, Rajasthan and vide an order dated

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54 18.09.2019 passed by the said Court, the bank account of JD No. 1, i.e., the State of Rajasthan was directed to be attached, but, till date, the said bank account has not been attached and, therefore, the DH has not been able to recover any amount.

3. He further submits that keeping in view the fact that the JD No. 2, i.e., the Ministry of Shipping, Road Transport and Highways, which is also liable to pay the awarded amount, is maintaining its bank account i.e., Bank Account No. 90621150000040, IFSC Code - SYNB0009062 Syndicate Bank, Transport Bhawan, No.1 Parliament Street, New Delhi 110001, within the territorial jurisdiction of this Court; the present petition has been filed before this Court as the DH is yet to receive the amount for work done by it many years ago.

4. He further submits that the DH has already moved an appropriate application seeking withdrawal of the execution petition against the JD No. 2 before the Court of the Learned Additional District and Sessions Judge, Jaipur; which application has, till date, not been taken up for consideration due to the limited functioning of the said Court on account of the ongoing pandemic of COVID-19.

5. He, therefore, seeks attachment of the JD No. 2's Bank Account No. 90621150000040, IFSC Code - SYNB0009062 Syndicate Bank, Transport Bhawan, No.1 Parliament Street, New Delhi 110001 to the extent of Rs. 30,83,32,410/- payable under the award, as on 07.10.2020.

6. On the other hand, Mr. Ajay Digpaul, learned CGSC, vehemently opposes the petition and submits that the Award, of which enforcement is being sought, has not been directed against the Union

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54 of India and, therefore, the present petition against the Union of India is not maintainable. He further seeks to place reliance on the Tripartite Contract entered into between the parties on 24.07.1996, to contend that the parties have specifically agreed that only the State of Rajasthan would be liable to pay any amount to the DH, in respect of the work which is the subject matter of the said Contract.

7. Mr. Digpaul further submits that the present petition is also hit by Section 39 of Code of Civil Procedure, 1908 as the DH has approached this Court without obtaining any transfer certificate from the Court at Additional District & Sessions Jaipur, Rajasthan, where its' execution petition is already pending. More so, when the said Court has already directed attachment of the bank account of the Government of Rajasthan, he contends that the DH cannot seek unjust enrichment by seeking to recover the awarded amount from both the State of Rajasthan and the Union of India.

8. Finally, he submits that the State of Rajasthan has already preferred an appeal under Section 37 of the Act assailing the order dated 17.06.2019, whereunder its petition under Section 34 of the Act challenging the Award dated 07.09.2014 was rejected and, therefore, prays that coercive orders be deferred so as to await the outcome of the appeal preferred by the State of Rajasthan.

9. Having considered the submissions of both sides, I am unable to agree with any of the submissions made by Mr. Digpaul. A bare perusal of the Award shows that it has been passed against both the State of Rajasthan and the Union of India. Even if the parties had entered into an agreement much prior to the Award to the effect that

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54 the State of Rajasthan will be liable to pay for the work undertaken by the DH, this Court, while exercising its powers of execution, cannot go behind the decree, which is the arbitral award in the present case. The arbitral award admittedly directs both the State of Rajasthan and the Union of India to pay the awarded amount.

10. Further, the reliance placed by Mr. Digpaul on Section 39 of the Code of Civil Procedure is also wholly misplaced. It is the settled legal position that an Award under the Arbitration and Conciliation Act, 1996 can be straight away filed and executed in the Court where the assets of the JD are located and, therefore, while seeking execution of an Award, no transfer certificate in terms of Section 39 is required. In this regard, reference may be made to Para 20 of the decision in Sundaram Finance Ltd. vs Abdul Samad, (2018) 3 SCC 622, wherein the Supreme Court has held as under: " We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings."

11. Moreover, once the DH has categorically stated on affidavit that it had, till date, not received any amount in the execution proceedings initiated before the Court at Learned Additional District and Sessions Judge, Jaipur, Rajasthan and that it has already moved an application for withdrawal of the pending execution petition against the Union of India before the said Court; I see no reason as to why the DH ought to be prevented from seeking enforcement of the

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54 Award against the Union of India before this Court. Learned counsel for the DH has further undertaken, on instructions, that in case the DH receives the awarded amount from the Union of India in these proceedings, it will forthwith withdraw its pending petition even against the State of Rajasthan.

12. I also do not find any reason to accept Mr. Digpaul's prayer to defer hearing of the present petition so as to await the outcome of the appeal preferred by the State of Rajasthan under Section 37 of the Act. A screenshot of the case status of the appeal preferred by State of Rajasthan, as taken from the official website of the High Court of Rajasthan, shows that the said appeal assailing the judgment dated 17.07.2019 has been preferred only on 15.09.2020 and, is, admittedly grossly barred by limitation. In any event, once it is an admitted position that as on date, the Award has not been stayed, I see no justification to continue to deprive the DH of its dues under an Award, which was passed more than six years ago and that too, arising out of a Concession Agreement dating back to 1996. For the aforesaid reasons, I am inclined to direct attachment of the aforesaid bank account of JD No. 2 to the extent of Rs. 30,83,32,410/-.

13. At this stage, Mr. Digpaul submits that instead of attachment orders being passed, the Union of India may be granted four weeks' time to deposit the awarded amount with the Registrar General of this Court. Learned counsel for the DH has no objection to the said request.

14. Accordingly, at the request of the learned counsel for the Union of India, attachment orders are deferred, and the Union of India is

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54 granted four weeks' time to deposit Rs. 30,83,32,410/- with the Registrar General of this Court.

15. At request, list on 29.01.2021.

REKHA PALLI, J.

DECEMBER 3, 2020 tp

Signature Not Verified DigitallySigned By:MANJU BHATT Signing Date:04.12.2020 11:46:54