Delhi High Court
Adhunik Security Services vs National Highway Authority Of ... on 31 May, 2022
$~70(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 11/2022 & CM No.26506/2022, CM No.26507/2022
ADHUNIK SECURITY SERVICES ..... Appellant
Through: Mr. Rahul Shukla and
Ms.Sayantani Basak, Advs.
versus
NATIONAL HIGHWAY AUTHORITY OF INDIA
..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 31.05.2022
1. This petition, stated to have been preferred under Order XXI
Rule 58(4) of the Code of Civil Procedure, 1908 (CPC) assails the
following order, passed by the learned Additional District Judge (the
learned ADJ) in Execution Civil 33/2017 (Adhunik Security Services
v. NHAI):
"EX CIVIL 33/17
M/S AUDHNIK SECURITY SERVICE Vs. NATIONAL
HIGHWY AUTHORITY OF INDIA
25.02.2022
Present: Sh. Rahul Shukla, Ld. Counsel for DH through
VC.
Sh. C.S. Chauhan, Ld. Counsel for JD.
Ld. Counsel for DH stated that the dispute is regarding
para no. 31(iii, iv, v) of the Arbitral Award. Ld. Counsel for
DH further stated that as per the amount mentioned in the
entry no. 31(iii) and 31(iv), there is dispute regarding interest
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
and the amount mentioned in the para no. 31(v), no any
amount has been paid on behalf of opposite party. It is
submitted by Ld. Counsel for DH that as per the section
31(7)(b), the DH is entitled for interest @ 2% higher than the
current rate of interest if award is not making provision for
interest on a particular amount. On the other hand, Ld.
Counsel for JD stated that the issue of interest has already
been decided in the award and JD has already made payment
of the awarded amount, therefore, they are not liable to pay
any further interest as per Section 31(7) (b).
I have considered the submissions of both parties and
have also gone through the relevant provision. Section
31(7)(b) reads as "A sum directed to be paid by an arbitral
award shall, unless the award otherwise directs, carry
interest at the rate of two per cent higher than the current rate
of interest prevalent on the date of award, from the date of
award to the date of payment." It is not disputed that the JD
has already made payment of the amount as well as the
interest as mentioned in the award. Ld. Counsel for JD stated
that in the other amounts which are mentioned in the award,
the JD has not paid interest at the rate of 2% higher than the
current rate as per their above said provisions. However, it is
clearly mentioned in the provision that the DH is entitled for
the said rate of 2% higher than the current rate of interest if
the award does not otherwise directs. However, in the present
award, the Ld. sole Arbitrator had specifically mentioned
about the rate of interests on particular amounts and had not
awarded the interests on other particular amounts which
reflect that the Ld. sole Arbitrator has otherwise, directed
regarding mode of rate of interest where it is to be paid and
where it is not to be paid. Therefore, it is clear that the DH is
not entitled for the interest as per the provision mentioned u/s
31(7) (b) but is entitled to the amount of interest as awarded
by the Ld. sole Arbitrator in the award. Ld. Counsel for DH
further requested that he seeks time to clarify on para no. 5
that whether entries of amount in this para are two different
entries or is one entry under another entry as a heading.
Hence, put up for clarification on this point on
20.05.2022."
2. To my mind, this appeal, at this stage, is not only not
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
maintainable but is completely misconceived. Order XXI Rule 58(4)
reads thus:
"58. ADJUDICATION OF CLAIMS TO, OR
OBJECTIONS TO ATTACHMENT OF, PROPERTY.
****
(4) Where any claim or objection has been adjudicated
upon under this rule, the order made thereon shall have the
same force and be subject to the same conditions as to appeal
or otherwise as if it were a decree."
3. An appeal would lie, under Order XXI Rule 58(4) only where
there is adjudication of a claim or objection under Order XXI Rule
58(4), and, in such event, the adjudication is eligible to be treated as a
decree and is subject to the same conditions as to appeal or otherwise
as would apply to a decree. Appeals against decrees, lie, under the
CPC, under Section 96 which reads thus:
"96. Appeal from original decree.
(1) Save where otherwise expressly provided in the body
of this Code or by any other law for the time being in force,
an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex
parte.
(3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees.]]"
4. "Decree", is defined, in Section 2(2) of the CPC thus:
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
"(2) "decree" means the formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question
within section 144, but shall not include--
(a) any adjudication from which an appeal lies as an
appeal from an order, or
(b) any order of dismissal for default.
Explanation.-- A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary
and partly final;"
5. It is clear, from a reading of the definition of the expression
"decree" in Section 2(2) that it requires formal expression of an
adjudication which conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the
proceedings pending before the Court, whether preliminary or final.
The definition clause also includes, by a deeming fiction in the
expression "decree", the rejection of a plaint.
6. Short of a conclusive determination of the rights of the parties
with respect to the matters in controversy in the proceedings before a
Court, the order of the Court cannot be treated as a "decree".
7. Though, Section 58(4) deems an adjudication, under the said
provision, to be a decree and may not, therefore be subject to all the
rigors which stand statutorily engrafted in the definition of "decree" in
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
Section 2(2), nonetheless, Order XXI Rule 58(4) also requires
adjudication of a claim or an objection under Order XXI Rule 58.
Adjudication of a claim or an objection, under Order XXI Rule 58 is
covered by sub-rules (1) and (2) thereof which read thus:
"58. ADJUDICATION OF CLAIMS TO, OR
OBJECTIONS TO ATTACHMENT OF, PROPERTY.
(1) Where any claim is preferred to, or any objection is
made to the attachment of, any property attached in execution
of a decree on the ground that such property is not liable to
such attachment, the Court shall proceed to adjudicate upon
the claim or objection in accordance with the provisions
herein contained:
Provided that no such claim or objection shall be entertained-
(a) where, before the claim is preferred or objection is
made, the property attached has already been sold; or (b)
where the Court considers that the claim or objection was
designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title
or interest in the property attached) arising between the parties
to a proceeding or their representatives under this rule and
relevant to the adjudication of the claim or objection, shall be
determined by the Court dealing with the claim or objection
and not by a separate suit."
8. Clearly, therefore, Order XXI Rule 58 contemplates
adjudication of any claim or objection, regarding attachment of
property in execution of a decree in accordance with the other
provisions of Order XXI Rule 58. Sub-rule (2) of Order XXI Rule 58
requires the Court to, while adjudicating the claim or objection,
determine all questions arising between the parties to the proceedings
or in the representatives under the rules relevant to the adjudication of
the claim or the objection.
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
9. "Adjudication" is defined in P. Ramanatha Aiyar's Advanced
Law Lexicon as "the legal process of resolving a dispute; the process
of judicially deciding a case". The High Court of Madras has, in T.K.
Dandapani v. Chairman & Managing Director, Bank of India1
defined "adjudication" as "a legal process involving hearing by Court,
after notice, consideration of legal evidence and pronouncement of
judgment thereon." The expression "determination" stands, on the
other hand, defined by the Supreme Court in Jaswant Sugar Mills v.
Laxmichand 2, as "(signifying) an effective expression of opinion
which ends a controversy or a dispute by some authority to whom it is
submitted under a valid law for disposal." The matter is clarified still
further by the decision in Ashok Leyland v. State of T.N. 3, which
holds thus:
"94. The word "determination" must also be given its full
effect, which presupposes application of mind and expression
of the conclusion. It connotes the official determination and
not a mere opinion of (sic or) finding."
10. Viewed thus, it cannot be said that the impugned order is either
a determination of the issue in controversy between the parties or an
adjudication within the meaning of Order XXI Rule 58 of the CPC. It
has merely expressed a view with respect to one of the issues which
were raised before it. At the request of the petitioner, who sought time
to clarify a particular aspect, the matter was adjourned to 20th May,
2022. Mr. Shukla, learned Counsel for the petitioner submits that the
2001 2 LLJ 384 (Mad)
AIR 1963 SC 677
(2004) 3 SCC 1
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
matter now stands adjourned to 16th September, 2022.
11. No conclusive adjudication or determination, even of the
entitlement of the petitioner to interest can be said to have taken place,
within the meaning of Order XXI Rule 58, by the impugned order.
The learned ADJ is still in seisin of the proceedings, which are next
listed before him on 16th September, 2022.
12. Till there is a closure, by the learned ADJ, of the issue with
which the petitioner is aggrieved, I am of the opinion that the present
appeal would not be maintainable under Order XXI Rule 58(4).
Though learned Counsel for the appellant sought to contend that the
learned ADJ had expressed the opinion that he would not entertain any
further arguments on the aspect of the entitlement of the petitioner, as
the decree holder before the learned ADJ, to interest, no such
observation is to be found in the impugned order. All that is apparent
is that the learned ADJ has expressed a view and has fixed the matter
for further hearing on 16th September, 2022 on a request made by the
petitioner itself.
13. Reserving liberty with the petitioner, therefore, to approach this
Court at the appropriate stage, if aggrieved, this appeal is dismissed as
not maintainable.
C.HARI SHANKAR, J
MAY 31, 2022/kr
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:03.06.2022
11:53:19
