M/S Apple Valley Developers vs . M/S Hindustan Constructions
2022 Latest Caselaw 5415 HP

M/s Apple Valley Developers vs. M/s Hindustan Constructions

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Company Ltd.

Ex. Petition No.20 of 2019

8.07.2022 Present Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lal, Advocate, for the Decree Holder.

Mr. Bhupinder Gupta, Senior Advocate with Mr. Pranjal

Munjal, Advocate, for the judgment debtors.

OMP No.199 of 2022

By way of instant application filed under Section 151 of

CPC, prayer has been made on behalf of the applicant-Judgment

debtor for modification of order dated 26.11.2021, passed by this Court

in OMP No.533 of 2019, whereby this Court after having found affidavit

filed by the applicant/Judgment debtor in terms of order dated

13.8.2021 to be not in consonance with the provisions contained in

Order 21 Rule 41 sub-rule 2, granted one last opportunity to the

applicant/Judgment debtor to either deposit the decreetal amount in

the Registry of this Court or furnish some solvent guarantee. It has

been averred in the application that on account of ongoing financial

restructuring, it may be difficult to furnish solvent guarantee in terms of

order dated 26.11.2021 and as such, award amount to the tune of

Rs.6, 04, 20,032/- lying deposited in the shape of FDR No.078049

invested with UCO Bank H.P. High Court Branch in Arbitration Case

No.177 of 2018, may be ordered to be attached. It has been stated in

the application that HPPCL has deposited the aforesaid amount of

Rs. 6, 04,20,032/- in Arbitration Case No.117 of 2018, which is payable

to applicant/judgment debtor and as such, it would be just, proper and

in the interest of justice to modify the order dated 26.11.2021, by

permitting the applicant/Judgment debtor to get the aforesaid amount

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attached in the present execution petition.

Aforesaid prayer made on behalf of the applicant/

judgment debtor has been seriously opposed by the non-applicant-

Decree holder by filing reply, wherein it has been stated that amount

deposited in Arbitration Case No.117 of 2018 by HPPCL has to abide

by the final adjudication of that case. Till then, it is primarily the

property of HPPCL. Besides above, it has been stated in the reply that

amount sought to be attached is not a solvent amount, which this court

can order to release to any person muchless, the Decree holder.

Having heard learned counsel representing the parties

and perused the pleadings adduced on record by the respective

parties, this Court finds that non-applicant/DH has filed Execution

petition for execution of judgment and decree dated 13.08.2019,

passed by learned Single Judge in COMS No.2 of 2018. This Court

vide order dated 13.08.2021 while issuing notice in the aforesaid

execution petition, specifically directed Judgment debtor No.1 to file

reply to OMP No.533 of 2019 in the form of an affidavit as prescribed

in form No.16(A), Appendix E of the Code of Civil Procedure, within

two weeks.

Though, pursuant to aforesaid directions issued in OMP

No.533 of 2019, applicant/judgment debtor filed an affidavit, but since

no specific details/particulars with regard to movable and immoveable

assets/properties ever came to be disclosed in the affidavit, this Court

passed following order on 26.11.2021:-

"Though, in compliance of order dated 13.8.2021, whereby non-applicants/defendants/JD's were directed to file an affidavit, disclosing therein assets/properties of JD's, if any, non-applicants/ defendants/JD's have

filed affidavit, but having perused aforesaid affidavit, this Court finds that no specific details/particulars with

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regard to movable and immovable assets/properties

have been given in the affidavit. Though, prima-facie, this Court is of the view that affidavit filed by non- applicants/defendants/JD's is not in terms of the order passed by this Court as well as in terms of the

provisions contained in Order 21 Rule 41 sub-rule 2 and as such, non-applicant/defendant/JD deserves to be dealt with in terms of provisions contained in Order 21 Rule 41 sub section 3, but before passing further order, this Court deems it fit to grant one last opportunity to the non-applicant/defendant/ judgment

debtor to either deposit the decreetal amount in the Registry of this Court or furnish some solvent guarantee.

Learned counsel representing the judgment debtor prays for and is granted two weeks' time to have

instructions. List on 13.12.2021".

On 15.12.2021, learned counsel representing the

applicant/judgment debtor placed on record copy of order, dated

27.11.2021 passed by Co-ordinate Bench of this Court in COMS No.2

of 2018 to demonstrate that Execution petition No.20 of 2019, wherein

application bearing OMP No.533 of 2019 has been filed, has been

ordered to be kept in abeyance. However, this Court after having

perused the order dated 27.11.2021 found that Co-ordinate Bench of

this Court while granting time to the plaintiff to file reply to the

application under Order 9 Rule 13 CPC , adjourned the matter for four

weeks. On 15.12.2021, this Court on the request having been made by

learned counsel for the applicant/Judgment debtor granted two weeks'

time to do the needful in terms of order dated 26.11.2021 passed by

this Court. While passing aforesaid order, this Court specifically

observed in the order that in case needful is not done in terms of order

dated 26.11.2021 on or before the next date of hearing, this court shall

be constrained to pass appropriate orders in terms of provisions

contained in Order 21 Rule 41 sub-section 3 CPC and other provisions

of law applicable to the present case. After passing of aforesaid order,

application at hand for modification of order dated 26.11.2021 came to

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be instituted at the behest of the applicant/judgment debtor. As of now,

it is not in dispute that order dated 26.11.2021, which otherwise stands

merged with order dated 15.12.2021, has attained finality and as such,

applicant/judgment debtor has no option but to comply with the order

dated 26.11.2021 passed by this Court in OMP No.533 of 2019.

Interestingly, applicant-judgment debtor instead of doing

needful in terms of order dated 26.11.2021 has moved instant

application, praying therein for modification of aforesaid order to the

extent that applicant/judgment debtor may be permitted to get the

award amount to the tune of Rs. 6,04,20,032/- lying deposited in the

Registry of this Court in Arbitration Case No.117 of 2018 attached in

the instant Execution proceedings. It has been averred in the

application that aforesaid amount of Rs.6,04,20,032/- belongs to the

applicant/ judgment debtor. However, it is not in dispute that HPPCL

has already laid challenge to the award made in favour of the

applicant/judgment debtor in Arbitration Case No.117 of 2018. No

doubt, HPPCL has deposited the aforesaid amount in the Registry of

this Court, but that has been deposited in terms of the orders passed

by the Court while dealing with the Arbitration Case No.117 of 2018.

Till the time, Arbitration Case No.117 of 2018, having been filed by the

HPPCL, is not decided, award amount lying deposited in the Registry

of this Court in the aforesaid case cannot be said to be exclusive

property of the applicant/judgment debtor, rather same continues to be

the property of HPPCL, who has not deposited the aforesaid amount

towards execution of the arbitration award, rather such award has

been laid challenge by way of an appeal, which is pending

adjudication. It has been nowhere averred in the application that

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applicant/judgment debtor is not in a position to deposit the decreetal

amount in terms of order dated 26.11.2021, rather it has been stated

that on account of ongoing financial restructuring, it may not be in the

interest of the applicant/ judgment debtor to deposit the amount sought

to be deposited in terms of order dated 26.11.2021. With a view to

show financial capacity of the applicant-judgment debtor, learned

Senior counsel representing the non-applicant/DH has made available

copy of Press release downloaded from the website of

applicant/judgment debtor, perusal whereof reveals that as on

12.5.2022 applicant/judgment debtor showed consolidated net profit of

Rs. 419.7 crore. As per aforesaid Press release, HCC recorded

highest standalone turnover with 80% growth annually.

Having taken note of aforesaid financial position/capacity

of the applicant-judgment debtor, this Court sees no justifiable reasons

to accede to the request made on behalf of the applicant/judgment

debtor for modification of order dated 26.11.2021.

Leaving everything aside, prayer made on behalf of the

applicant-judgment debtor to get the award amount deposited by

HPPCL in Arbitration Case No.117 of 2018 cannot be accepted for the

reasons that aforesaid amount cannot be claimed to be owned by the

applicant/judgment debtor till the time arbitration case having been

filed by the HPPCL is not decided against the HPPCL.

Consequently, in view of the above, this Court finds no

merit in the present application and same is accordingly dismissed

being devoid of any merit. Though, having taken note of the fact that

despite sufficient opportunities order dated 26.11.2021 has been not

complied with, this Court has no option but to proceed against the

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applicant/judgment debtor in terms of provisions contained in Order 21

Rule 41 Sub Rule 3 CPC, but before doing so, this Court deems it fit to

grant one last opportunity of two weeks to the applicant/judgment

debtor to either deposit the decreetal amount in the Registry of this

Court or furnish some solvent guarantee, failing which, applicant-

Judgment debtor No.1 shall remain present in Court on the next date

of hearing to show cause as to why appropriate orders for his civil

imprisonment in terms of provisions contained in Order 21 Rule 41

Sub Rule 3 CPC, are not passed.

List on 25.07.2022.

(Sandeep Sharma)

Judge 8th July, 2022 (shankar)