Ambalal J Upadhyay vs Gujarat Vidhut Board North Guj Vij ...
2023 Latest Caselaw 5126 Guj

       C/SCA/2512/2010                           ORDER DATED: 03/07/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2512 of 2010

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                         AMBALAL J UPADHYAY
                               Versus
              GUJARAT VIDHUT BOARD NORTH GUJ VIJ CO LTD
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
MR MD PANDYA(548) for the Respondent(s) No. 1
MS MAYA S DESAI(285) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 03/07/2023

                              ORAL ORDER

1. This petition, under Article 227 of the Constitution of India assails the legality and correctness of order dated 11.01.2010, passed below Exh.41 in Special Execution Petition No.14 of 2003 by which learned Additional Senior Civil Judge, Himmatnagar at Sabarkantha by which the Civil Court issued a warrant for execution under Order 21 Rule 30 of the C.P.C. so as to enable the Gujarat Electricity Board - respondent to execute the decree.

2. This Court has heard learned counsel Ms. Archana R. Acharya and Ms. Maya Desai for the respective parties.

3. Ms. Archana Acharya, learned counsel for the petitioner submitted that, the petitioner M/s. Ambalal Upadhyay had filed a Special Civil Suit No.60 of 2004 against the GEB to recover

C/SCA/2512/2010 ORDER DATED: 03/07/2023

the amount of Rs.4,65,000/-. The petitioner-plaintiff was awarded the contract for manufacture and supply of polls. There was a dispute arose between the parties. The Arbitration Petition No.38 of 2000 was filed by the petitioner for appointment f Arbitrator. The sole arbitrator was appointed to adjudicate the dispute between the parties and pursuant to the appointment, the earlier suit being SCS No.17 of 2000 was withdrawn by the defendant. The work contract was terminated by the GEB. The suit for claiming the amount of Rs.4,65,000/- against the godown rent etc. was filed. It is in this context, Ms. Acharya learned counsel submitted that, the respondent - GEB was responsible and liable to pay the amount of Rs.4,65,000/- to the petitioner and therefore, the petitioner filed an application under Order 21 Rule 36 to stay the further proceedings of the execution. Thus, the learned trial Court overlooked the pendency of the recovery proceedings filed by the petitioner herein and if the warrant as sought by the GEB, executed by the Court, then, the petition filed by the petitioner under Order 21 of Rule 36 would become infructuous. She further submitted that, both the parties claiming due amount against each other and therefore, the amount due towards rent, is higher than the amount payable to the petitioner-board as per the award of the Arbitrator.

4. In view of the aforesaid contentions, learned counsel Ms. Acharya submitted that, the Court below while issuing warrant for recovery has committed manifest error and exceeded its jurisdiction while passing the order which requires interference under the supervisory jurisdiction of this Court.

C/SCA/2512/2010 ORDER DATED: 03/07/2023

5. On the other hand, Ms. Desai, learned counsel appearing for the respondent-board submitted that, the suit filed by the petitioner herein was dismissed on 12.09.2011 and the appeal against the dismissal of the suit was also dismissed by the Appellate Court. She further submitted that, against the award passed by the sole arbitrator, this Court has set aside the award. Thus, as on date, the claim made by the petitioner herein is not in existence and therefore, in absence of any judicial order, the board herein entitled to execute its decree against the petitioner. Thus, the learned trial Court has not committed any error of law, much less an error apparent on face of record.

6. In view of the aforesaid submission, Ms. Desai, learned counsel prays to dismiss this petition as no valid reason or ground is made out for interference by this Court under supervisory jurisdiction.

7. Having heard learned counsel for the respective parties and on perusal of the impugned order, it appears that, learned trial Court issued a warrant under Order 21 Rule 30 of the Code, for execution of decree, allegedly passed against the petitioner herein. In the order, the learned trial Court made a reference of the judicial proceedings initiated by the petitioner herein against the board as on earlier occasion, the order for execution was put in abeyance due to pendency of the proceedings filed by the petitioner. Thus, at the time of passing the order, the petitioner could not show any pending

C/SCA/2512/2010 ORDER DATED: 03/07/2023

proceedings of his recovery against the GEB. As a result, the Court has issued a warrant for recovery. It is no doubt true that, the suit being SCS No.29 of 2010 filed by the petitioner to recover the amount of Rs.4,65,000/- was dismissed on merits vide judgment and order dated 12.09.2011. The appeal preferred against the judgment was also dismissed. The award passed by the sole arbitrator was also set aside by this Court. Thus, the plea of adjustment of the amount claimed by the petitioner is no more in existence.

8. In view of foregoing reasons, the learned trial Court has no option but to execute the decree as it is. Thus, therefore, this Court does not find any ground to interfere with the order dated 11.01.2010 passed below Exh.41 in Execution Petition No.14 of 2003. Resultantly, the petition stands dismissed. Rule is discharged. Interim relief, if any, granted earlier, stands vacated forthwith. Learned Executing Court is directed to proceed with the execution proceedings from the stage, where the warrant was issued.

(ILESH J. VORA,J) TAUSIF SAIYED