Delhi High Court
Prasar Bharati (Broadcasting ... vs Status Air Vision Pvt. Ltd on 26 May, 2023
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 26.05.2023
+ EX.F.A. 19/2023 & CM APPL. 28719-21/2023
PRASAR BHARATI (BROADCASTING CORPORATION
OF INDIA) & ANR ..... Appellants
versus
STATUS AIR VISION PVT LTD ..... Respondents
Advocates who appeared in this case:
For the Appellants : Ms. Radhalakshmi R, Advocate
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. The appellants challenge the order dated 25.02.2023 passed by the
learned Executing Court in Ex. No. 118/2018 titled as "Status Air
Vision Pvt. L td. vs. Prasar Bharti", whereby the learned Executing
Court had directed the petitioner /judgment debtor to pay a sum of
Rs.2,54,200/- on account of legal expenses and counsel fees etc.
2. Ms. Radhalakshmi R, learned counsel appearing for the appellants
submits that despite the fact that the original award did not consider the
issue of legal expenses and counsel's fee while passing the impugned
order, the learned Executing Court had in an ambiguous way granted
legal expenses etc., which it could not have done so.
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:02.06.2023
15:00:54
3. Ms. Radhalakshmi R, submits that, so far as the Arbitrator's fees
is concerned, the appellant has no objection thereto and has already paid
the same.
4. So far as the legal fees is concerned, Ms. Radhalakshmi R, invites
attention of this Court to para 4 and 5 of the affidavit filed on behalf of
the appellant / judgment debtor before the learned Executing Court, to
submit that the decree holder was not entitled to the expenses or legal
cost incurred by it before the Arbitrator for the reason that no such
quantification or any affidavit or bill of costs on that account was ever
filed either before the Arbitrator or even before the learned Executing
Court.
5. She further submits that the decree holder would have been
entitled to only those legal costs, which could be ascertainable and
quantifiable from the evidence which was placed before the Arbitrator.
Learned counsel further submits that having regard to the fact that no
such material was placed either before the learned Executing Court or
before the Arbitral Tribunal, the Executing Court could not have passed
such directions directing the appellant / judgment debtor to pay to the
respondent a sum of Rs.2,54,200/- on that account.
6. On a query by this Court, learned counsel submits that no
objection petition under Section 34 of the Arbitration & Conciliation
Act, 1996 was ever filed against the award which was passed by the
Arbitrator on 12.06.2018.
7. So far as the observations and the conclusions drawn by the sole
arbitrator is concerned, keeping in view the fact that the award was
never challenged, has become final and binding upon the appellant.
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:02.06.2023
15:00:54
8. The appeal which has now been filed against the impugned order
dated 25.02.2023 is unsustainable in law for the reason that when the
objection has never been raised against the original award, the appellant
is not permitted to raise any objection to the execution of a decree
arising therefrom.
9. The aforesaid view taken by this Court is consistent with a view
taken by the Coordinate Benches of this Court in the case of Morgan
Securities & Credits Pvt. Ltd. vs. Morepen Laboratories Ltd. & Anr.
reported in 2006 SCC Online Del 774 whereby in the penultimate para
22, the learned Single Judge of this Court had framed a question, in that,
whether the judgment debtors could challenge the award in the
execution proceedings having not filed a petition under Section 34 of the
Arbitration & Conciliation Act, 1996. Answering the aforesaid question,
the learned single Judge held that such a course of conduct cannot be
permitted as it would amount to permitting the judgment debtors to do
something indirectly which it could not have done directly. The
rationale behind that appears to be that the challenge under Section 34 of
the Act not having been taken up, permitting the judgment debtor to
raise the same issue under the garb of objections to the of execution
petition, would amount to re-considering the issues which were never
raised under the valid provision of law and that would be impermissible
in law.
10. The other judgment of the learned Coordinate Bench of this Court
was rendered in Hindustan Zinc Ltd. Vs. National Research
Development Corporation reported in 2023 SCC OnLine Del 330,
while upholding the principles laid down in the Morgan Securities
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:02.06.2023
15:00:54
(supra) reiterated the same ratio and settled the law on that subject.
11. This Court is in complete and in respectful concurrence of the
ratio so laid down by the two aforesaid judgments. It cannot be
fathomed nor countenanced to see a party whose right to object to the
award had crystalized after the passing of the award and limited by the
provision of Section 34 of the Arbitration & Conciliation Act, 1996 and
not having objected under Section 34 of the Act cannot by way of an
objection in execution petition be permitted to object and delay the
execution proceedings.
12. In view of the aforesaid and applying the same ratio in the present
case, the issue as to whether there was any document or proof or a
quantification available with the Arbitrator or the executing Court would
become irrelevant and pale into insignificance.
13. Accordingly, the appeal is dismissed with no order as to costs.
14. Pending applications also stand disposed of.
TUSHAR RAO GEDELA, J .
MAY 26, 2023
Ms
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:02.06.2023
15:00:54
