Gauhati High Court
Ntpcl Bongaigaon Thermal Power ... vs M/S Buildworth Private Ltd And Anr on 15 November, 2023
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GAHC010221302023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA/47/2023
NTPCL BONGAIGAON THERMAL POWER STATION
PO SALAKATI (P) DIST KOKRAJHAR, ASSAM, REPRESENTED BY ITS
SENIOR MANAGER (ME)
VERSUS
M/S BUILDWORTH PRIVATE LTD AND ANR.
GS ROAD, GUWAHATI 781005
2:M/S BHARAT HEAVY ELECTRICAL LIMITED
HAVING ITS CORPORATE OFFICE AT BHEL HOUSE
SIRIFORT
NEW DELHI 11004
Advocate for the Petitioner : MR. D GOSWAMI
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 15.11.2023
Heard Mr. D. Goswami, learned counsel for the appellants.
2. Issue notice, returnable by six weeks.
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3. Steps on the respondents defendants by registered post within three days.
4. The respondent no. 1 M/S Buildworth Private Limited is the decree holder
and the respondent M/S Bharat Heavy Electrical Limited is the judgment debtor
in respect of an Arbitration Award dated 07.03.2006 for a money decree
amounting to Rs.30,94,002/- with interest of 12% per annum to be payable
from 24.01.2001. For execution of the money decree in favour of the decree
holder, Money Execution Case No. 29/2015 had been instituted in the Court of
learned District Judge, Kokrajhar. In course of the money execution proceeding
the decree holder made an application under Order XXI Rule 46 of the CPC read
with Section 151 of the CPC for attachment of certain immovable property not in
the possession of the judgment debtor by making a claim that the judgment
debtor has a contract agreement with the appellant NTPCL and in course of
such contract agreement the appellant NTPCL is in possession of certain
movable property from which they are liable to pay to the judgment debtor.
5. While entertaining the petition under Order XXI Rule 46, the learned
District Judge passed the order dated 01.10.2022 whereby there is a direction
to the NTPCL to withhold an amount of Rs.75,41,058/- from the total dues
payable to the judgment debtor until further orders. The appellant NTPCL filed
the petition No. 1029/2022 for recalling the order dated 01.10.2022 disputing
the stand of the decree holder that movable property amounting to
Rs.75,41,058/- is required to be paid by the appellant to the judgment debtor.
Along with two other petitions, the said petition No. 1029/2023 was given a
consideration by the impugned order dated 19.08.2023.
6. Being aggrieved by the order dated 19.08.2023 the present appeal is
instituted by the appellant NTPCL.
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7. We have perused the order dated 19.08.2023. But it is not discernible
from the order that the learned District Judge, Kokrajhar had decided the
question as to whether the appellant NTPCL owes an amount of Rs.75,41,058/-
to the judgment debtor. A condition precedent of issuing an order of attachment
under Order XXI Rule 46 (1) (c) would be also to arrive at a decision that the
movable property which is not in the possession of the judgment debtor is
otherwise a movable property of the judgment debtor. Even the order dated
01.10.2022 by which an amount of Rs.75,41,058/- was directed to be withheld
from the payment to the judgment debtor do not in any manner decide the
issue as to whether the said amount is a movable property of the judgment
debtor which is in possession of the appellant NTPCL.
8. In view of the prima facie case being made out, the order dated
19.08.2023, amongst others, in petition no. 1029/2023 and the order dated
01.10.2022 made in petition no. 931/2022 of the decree holder under Order XXI
Rule 46 of the CPC read with Section 151 of the CPC shall remain stayed until
further orders.
List after six weeks.
JUDGE
Comparing Assistant
