Jharkhand High Court
M/S Spml Infra Ltd. (Formerly ... vs Jharkhand Bijli Vitran Nigam Ltd. on 29 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 386 of 2021
M/s SPML Infra Ltd. (formerly known as Subhash Projects and
Marketing Ltd.), New Delhi, through one of its authorized signatory Sri
Sudhanshu Shekhar Jha ... ... Petitioner
Versus
Jharkhand Bijli Vitran Nigam Ltd., Ranchi ... ... Opposite Party
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Rohitashya Roy, Advocate
Mr. Vibhor Mayank, Advocate
For the Opposite Party : None
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Order No. 03 Dated: 29.07.2022
The present civil miscellaneous petition has been filed for
issuance of direction upon the learned Presiding Officer, Commercial
Court, Ranchi to expeditiously dispose of Execution Case No. 21/2019
filed for execution of the Arbitral Award dated 06.10.2018 passed by
the Sole Arbitrator in A. A. No. 11 of 2011, whereby a sum of
Rs. 35,18,90,249/- has been awarded in favour of the petitioner
along with interest @ 6% per annum with effect from 07.12.2012 till
06.10.2018 and @ 18% per annum thereafter till final payment as in
view of the provisions of Section 36(2) of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as "the Act, 1996"), the
said award is enforceable.
2. Learned counsel for the petitioner submits that Sole
Arbitrator has passed the award dated 06.10.2018 holding that the
petitioner is entitled for total claim of Rs. 35,18,90,249/- along with
interest @ 6% per annum from the date of the order passed by the
High Court referring the disputes to arbitration (specified as
07.12.2012), till the date of Award and @ 18% per annum from the
date of Award till final payment. After passing of the Award, the
opposite party filed Commercial Revocation Case No. 02/2018 before
A.J.C-XIII-cum-Presiding Officer, Commercial Court, Ranchi by
preferring an application under Section 34 of the Act, 1996
challenging the said award. The petitioner appeared in the said case
and filed his objection justifying the award passed by the learned
Arbitrator. Thereafter, the petitioner also filed an application under
Section 36 of the Act, 1996 read with Order XXI Rule 11 CPC on
26.02.2019 before the same court where Commercial Revocation
Case No. 02/2018 was pending for enforcement of the said arbitral
award, which was registered as Commercial Execution Case No.
21/2019. The said execution case was registered on 26.02.2019 and
put up for admission on 27.02.2019 which was finally admitted on
20.06.2019. The grievance of the petitioner is that the said execution
case remained pending for more than two years for appearance of
the judgment-debtor in spite of the fact that the notice issued to the
opposite party was validly served. Learned counsel for the petitioner,
however, on instruction, submits that the opposite party has
appeared in the said execution case in the last month. Though both
the aforesaid cases are pending before the same court and the
counsel for the opposite party has been regularly appearing in
Commercial Revocation Case No. 02/2018 filed under Section 34 of
the Act, 1996, yet the opposite party is not co-operating in the
execution case due to which the petitioner is still deprived of actual
benefit of the award rendered by learned Sole Arbitrator.
3. Learned counsel for the petitioner puts reliance on
judgment rendered by Hon'ble Supreme Court in the case of "Rahul
S. Shah Vs. Jinendra Kumar Gandhi & Ors." reported in (2021)
6 SCC 418, particularly paragraph 42.12 of the same and submits
that the Hon'ble Apex Court, in exercise of power conferred under
Article 142 r/w Article 141 of the Constitution of India, has directed
all the executing courts to dispose of the execution proceedings
within six months from the date of filing, which may be extended
only by recording reasons in writing for such delay.
4. Heard learned counsel for the petitioner and perused the
content of the writ petition. The main submission of learned counsel
for the petitioner is that though the opposite party is being
represented in Commercial Revocation Case No. 02/2018 filed under
Section 34 of the Act, 1996, it is not co-operating in timely disposal of
the execution case i.e., Commercial Execution Case No. 21/2019.
5. On perusal of the present petition preferred before this
Court under Article 227 of the Constitution of India, it does not
appear that the petitioner has ever requested learned Commercial
Court to expedite the proceeding of Commercial Execution Case No.
21/2019. Since both the aforesaid cases are pending before the
Commercial Court, Ranchi itself, the petitioner could have brought the
aforesaid fact to the notice of the said court instead of filing the
present petition invoking Article 227 of the Constitution of India. The
petitioner has not filed any such application before the Commercial
Court so as to enable it to either expedite the proceeding of the
execution case or to assign a cogent reason for the delay occurring in
disposal of the same.
6. Hence, this Court is not inclined to entertain the present
petition at this stage. The petitioner is, however, at liberty to bring
the aforesaid facts to the notice to the Commercial Court, Ranchi.
7. The C.M.P is accordingly disposed of with aforesaid
observation and liberty.
I.A. No. 5787 of 2022 and I.A. No. 5786 of 2022 also
stand disposed of.
(Rajesh Shankar, J.)
Manish
