Karnataka High Court

M/S Mysore Manganese Co. Pvt Ltd vs M/S Prakash Natural Resources Ltd on 2 February, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 02TH DAY OF FEBRUARY, 2024

                       BEFORE

       THE HON'BLE MR.JUSTICE S.G.PANDIT

      WRIT PETITION No.6484/2023 (GM-CPC)


BETWEEN:

  1. M/S. MYSORE MANGANESE CO.PVT.LTD.,
     A PRIVATE LIMITED COMPANY
     INCORPORATED UNDER
     THE COMPANIES ACT OF 1956
     AND HAVING ITS REGISTERED
     OFFICE AT NO.4
     1ST MAIN, 60 FT. ROAD
     AMARAJYOTHI LAYOUT
     SANJAYANAGAR,
     BENGALURU-560 094
     REP. BY ITS DIRECTOR.

  2. MR. K RAGHU
     S/O MR. KESHAVA RAJU
     AGED ABOUT 55 YEARS
     NO.4, 1ST MAIN, 60 FT. ROAD
     AMARAJYOTHI LAYOUT
     SANJAYNAGAR
     BENGALURU-560094.

  3. SMT. POONRNIMA RAGHU
     W/O MR. K RAGHU
     AGED ABOUT 43 YEARS
     NO.4, 1ST MAIN, 60 FT. ROAD
     AMARAJYOTHI LAYOUT
                            2

       SANJAYANAGAR
       BENGALURU-560094.
                                       ...PETITIONERS

(BY SRI.RAMALINGAM P.H., ADV.)


AND:

M/S. PRAKASH NATURAL RESOURCES LTD.,
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT OF 1956 AND
HAVING ITS REGISTERED OFFICE AT SRIVAN
BIJWASAN, NEW DELHI-110061
ACTING THROUGH ITS AUTHORIZED
REPRESENTATIVE MR. SATNAM SINGH.
                                       ....RESPONDENT

(BY SRI. ASHOK HARANAHALLI, SR. ADV. FOR
 SRI. M UNNIKRISHNAN, ADV.)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
ORDER   DATED 16.01.2023      PASSED   ON   IA.IV  IN
EX.NO.136/2013 BY THE LV ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU CITY (CCH-56) FOUND AT
ANNEX-A AND THAT THIS COURT MAY BE PLEASED TO
ALLOW THE IA NO.IV FILED BY THE PETITIONERS UNDER
SECTION 47 R/W SECTION 151 OF CPC IN EX.NO.136/2013
BY THE LV ADDL.CITY CIVIL AND SESSIONS JUDGE AT
BENGLAURU CITY (CCH-56) FOUND AT ANNX-H.


     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED   ON   07/12/2023    COMING  ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
                                3

                         ORDER

The petitioners, judgment debtors in

Ex.No.136/2013 on the file of LV Additional City Civil

and Sessions Judge, Bengaluru City are before this

Court, praying to set aside the order dated 16.01.2023

on I.A.No.4 filed under Section 47 read with Section 151

of CPC.

2. Heard learned counsel Sri.P.H.Ramalingam for

petitioners and learned senior Counsel Sri.Ashok

Haranahalli for Sri.Unnikrishnan, learned counsel for

respondent-decree holder. Perused the writ petition

papers.

3. The brief facts of the case are that:

The respondent-decree holder filed Execution

Petition No.136/2013 to execute the award/order dated

11.01.2010 in A.A.No.343/2008 on the file of Principal

City Civil and Sessions Judge at Bengaluru. The

petitioners and respondent had entered into an

agreement dated 28.03.2008 regarding purchase and

transfer of shares of petitioner No.1-Company. As the

first petitioner-Company failed to comply the terms and

conditions of the agreement, the respondent-decree

holder invoked arbitration clause, requesting the first

petitioner-Company to consent for appointment of

Arbitrator to resolve the dispute between them. As

petitioner No.1-Company failed to consent for

appointment of arbitrator, the respondent filed a petition

under Section 11 of Arbitration and Conciliation Act,

1996 (for short "1996 Act") requesting for appointment

of arbitrator. In the meanwhile, the respondent herein

also filed a petition under Section 9 of 1996 Act, praying

for interim protection. In the Section 9 petition, i.e.,

A.A.No.343/2008, the petitioners filed a memo dated

14.12.2009 agreeing to repay the amount received

towards transfer of shares and on the said memo, the

trial Court directed the petitioners herein to pay

Rs.13.00 Crores within six months from 14.12.2009 to

the petitioner therein i.e., respondent herein. As the

petitioners failed to pay the amount in terms of the

order dated 11.01.2010 in A.A.No.343/2008, the

respondent herein filed Ex.No.136/2013 to execute the

order dated 11.01.2010.

4. The petitioners on their appearance filed I.A.No.4

under Section 47 of CPC contending that the order put

into execution is not an executable order or decree; no

adjudication of dispute between the parties has taken

place; dispute could be resolved only by arbitration, no

such adjudication has taken place.

5. The said application was opposed by the

respondent-decree holder contending that the

contentions raised in I.A.No.4 are already decided in an

earlier application filed under Section 47 of CPC which is

affirmed by the Hon'ble Apex Court. On consideration of

the application of the petitioners herein and objections

of the respondent herein, the trial Court under

impugned order rejected I.A.No.4, against which, the

present writ petition.

6. Learned counsel Sri.P.H.Ramalingam for

petitioners-judgment debtors would submit that the

order put into execution is not an executable decree.

The order passed on 11.01.2010 in A.A.No.343/2008

which is put into execution is an order passed under

Section 9 of 1996 Act and he submits that the order

passed under Section 9 of 1996 Act is not an executable

decree. The dispute between petitioners and respondent

if any could be resolved only through arbitration and he

submits that no arbitration proceedings has taken place

and no arbitrator is appointed in a petition filed by

respondent under Section 11 of 1996 Act. The CMP filed

by respondent under Section 11 of 1996 Act is disposed

of without appointing Arbitrator and as no adjudication

of dispute between the parties has taken place in terms

of the agreement, the order put into execution cannot

be considered as an award and as such the execution

itself is not maintainable. Thus, learned counsel would

pray for setting aside the impugned order and to allow

I.A.No.4 filed under Section 47 of CPC.

7. Per contra, learned senior counsel Sri.Ashok

Haranahalli for respondent/decree holder would submit

that the order put into execution is a consent order

wherein the petitioners filed a memo agreeing to pay a

sum of Rs.13.00 Crores within six months from

14.12.2009. Having consented for payment of Rs.13.00

Crores, the petitioners cannot go back on the said

consent or undertaking. Learned senior counsel would

submit that the order passed on 11.01.2010 is not

challenged by petitioners any further and they have

accepted the said order. Learned senior counsel would

further submit that the parties more particularly the

petitioners, to put an end to the litigation filed memo

agreeing to pay an amount of Rs.13.00 Crores and on

the basis of the said memo, the trial Court in

A.A.No.343/2008 directed the petitioners to pay a sum

of Rs.13.00 Crores within six months. Further, learned

senior counsel would submit that the executability of

order passed under Section 9 of 1996 Act would depend

on the nature of order that would be passed. It is

submitted that if the parties agree to put an end to their

litigation certainly, such order could be executed.

8. Learned senior counsel would submit that filing of

same objections repeatedly would amount to abuse of

process of Court. It is submitted that the petitioners

had earlier filed an application raising same objections

i.e. executability of the order as well as contending

that there is no adjudication of the dispute

between the parties. The said objection was considered

by the trial Court and rejected by order dated

25.02.2014. The said order rejecting the objections of

the petitioners was the subject matter of

W.P.Nos.28156-28158/2014 before this Court. This

Court, by order dated 04.02.2016 dismissed the writ

petitions, against which, the petitioners preferred SLP

by order dated 08.09.2017. Having suffered the order

before this Court and the Hon'ble Apex Court, the

petitioners could not have filed similar objections again

and it is submitted that filing of such objection is only to

protract and to harass the decree holder. Thus, learned

senior counsel would pray for dismissal of the writ

petition.

9. Having heard the learned counsel for the parties

and on perusal of the writ petition papers, I am of the

view that no ground is made out to interfere with the

impugned order. Moreover, the impugned order is

neither perverse nor suffers from any material

irregularity, so as to warrant interference under Article

227 of the Constitution of India. Further, the action of

the petitioners in filing repeated application under

Section 47 of CPC raising same objection would be

abuse of process of Court and as such, the writ petition

is liable to be dismissed with costs.

10. It is not in dispute that the petitioners and

respondent had entered into an agreement dated

28.03.2008 for purchase and transfer of shares of

M/s.Mysore Manganese Company Private Limited.

Clause 12 of the said agreement provided for dispute

resolution. If there are any disputes or differences

between the parties, the parties shall subject

themselves to the arbitration as provided under the

provisions of Arbitration and Conciliation Act, 1996. As

there were some differences and disputes, the

respondent issued notice calling consent of the

petitioners for appointment of Arbitrator which was not

consented by the petitioners. Therefore, the respondent

initiated proceedings before this Court under Section 11

of 1996 Act in CMP No.120/2008. Simultaneously, the

respondent also initiated proceedings under Section 9 of

1996 Act in A.A.No.343/2008 seeking interim protection

during the pendency of CMP.

11. In the above said A.A.No.343/2008, the

respondent filed a memo dated 14.12.2009 seeking

restraint order from alienating the schedule mines of the

first petitioner-Company, till repayment of the amount in

dispute. To the said memo, the petitioners filed their

objections and in the said objections, they agreed to

repay the amount of Rs.13.00 Crores within six months

and requested to work out remedy with regard to

interest on the said amount. The trial Court, taking

note of the memo and objections filed to the memo

passed the following order:

"The said memo is dt.14.12.2009 hence as per the said clause, petitioner is not entitled to interest, on the amount already paid viz 13 crores. He is only entitled for the return of the said amount. Sri KVM submits that he return the same as per the above clause within 6 months from 14.12.2009 Sri UK is agreeable to the said submission made by Sri KVM. Hence with their consent petition disposed of, directing the respondent to pay the above said amount of Rs.13 crores within 6 months from 14.12.2009 to the petitioner."

12. Learned counsel for the petitioners contended that

the above order which is put into execution is not an

executable order, since there is no adjudication of

dispute between the parties and Section 9 order is only

an interim measure, which cannot be executed as it is

not an award. But, in the instant case, the order passed

is a consent order and the petitioners, to put an end to

the litigation agreed to pay Rs.13.00 Crores to the

respondent. The executability of the order would

depend on the nature of the order that would be passed.

Admittedly, the petitioners have not challenged the said

order dated 11.01.2010 in A.A.No.343/2008 before any

higher forum. The petitioner could not have challenged

the said order since it is consent order. On the other

hand, they have accepted the said order. Normally, the

order that would be passed under Section 9 of 1996 Act

to protect the interest of the parties during the

pendency of the arbitration proceedings. If the parties

themselves in the Section 9 petition by consent or

agreement resolve their dispute, the question of going

into arbitration proceedings would not arise. In such

circumstance, the order passed under Section 9 of 1996

Act would bind the parties and if any one of the parties

fails to comply the order, it would be open for the other

party to get the said order executed. In the peculiar

facts of the present case, the decisions relied on by the

learned counsel for the petitioners to say that the order

put into execution is not an executable order would not

assist.

13. Moreover, the petitioners on their appearance in

the execution proceedings had filed objection to the

execution, raising the contentions as raised in I.A.No.4

and in the present petition. The petitioners initially had

raised objection such as order put into execution is not

an executable order; there is no adjudication of dispute

between the parties through arbitration proceedings;

and that there is no award to execute. The Executing

Court, by order dated 25.02.2014 rejected those

objections and proceeded further in the execution. The

said order dated 25.02.2014 of the Executing Court was

the subject matter of W.P.Nos.28516-28158/2014. This

Court, by order dated 14.02.2016 rejected the

petitioners' writ petitions and while rejecting writ

petitions, at paragraphs 11 and 13 observed as follows:

"11. Looking to these materials on record, it is seen that the petitioners herein have admitted before the trial Court as well as before this Court about receipt of Rs.13 crores from the respondent herein and they have also submitted that they will repay Rs.13 crores. Therefore, there is an undertaking by the petitioners herein for the repayment of Rs.13 crores. When that is the case, now they cannot contend that the order passed by the Executing Court is illegal, as it is not a decree and it is not an executable order. When there is undertaking before the trial Court as well as before this Court, the Courts are having the power to take action in respect of such undertakings and to pass appropriate orders, as otherwise, there will be no meaning for the undertakings given by the parties before the Court and subsequently contending that they are not liable to pay as per the said undertaking. Therefore, the contention of the learned counsel for the petitioners that the petitioners are not liable to pay the amount at least to an extent of Rs.13 crores cannot be accepted at all.

12. ...............

13. Considering these decisions and the principles enunciated in the said decisions, I am of the opinion that the learned senior counsel for the respondent is right in his submission that the provisions of Civil Procedure Code are also made applicable to the arbitration proceedings. Hence, I am of the opinion that the order passed by the Court below can be executed against the petitioners. However, since the undertaking given by the petitioners before the Court below as well as before this Court is only to the extent of Rs.13 crores, the Court can execute the order as against the petitioners for recovery of Rs.13 crores only. So far as the claim of the respondent that it has paid Rs.15 crores and also entitled for interest, it has to raise the dispute with regard to remaining Rs.2 crores and interest if any, in the arbitration proceedings."

The above paragraphs would make it clear that this

Court considered similar contentions which are raised in

the present writ petition and answered the same. The

petitioners again by filing I.A.No.4 could not have raised

the similar objections. The petitioners-judgment

debtors are not entitled to file repeated objections under

Section 47 of CPC that too taking identical contentions.

In the instant case, the action of the petitioners in filing

repeated objections would amount to abuse of process

of the Court. Moreover, the order of this Court was

taken upto Hon'ble Apex Court in SLP (C) Nos.8548-

8550/2017 and the Hon'ble Apex Court by its order

dated 08.09.2017 dismissing the SLP.

14. The doctrine of res judicata would squarely apply

to the facts of the present case. There shall be finality to

every litigation. If the petitioners are permitted to raise

similar contentions repeatedly, there would not be

finality to the litigation. The Hon'ble Apex Court in the

case of Dr. Subramanian Swamy Vs. State of Tamil

Nadu and Others1, while explaining the scope of

application of doctrine of res judicata, at paragraphs 39

and 40, has observed as follows:

(2014)5 SCC 75

"39. The scope of application of doctrine of res judicata is in question. The literal meaning of "res" is "everything that may form an object of rights and includes an object, subject-matter or status" and "res judicata" literally means "a matter adjudged; a thing judicially acted upon or decided;

a thing or matter settled by judgments". Res judicata pro veritate accipitur is the full maxim which has, over the years, shrunk to mere "res judicata", which means that res judicata is accepted for truth. The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence interest reipublicae at sit finis litium (it concerns the State that there be an end to law suits) and partly on the maxim nemo debet bis vexari pro una et eadem causa (no man should be vexed twice over for the same cause).

40. Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide Sha Shivraj Gopalji v. Edappakath Ayissa Bils and Mohanlal Goenka v. Benoy Kishna Mukherjee AIR 1953 SC 65)."

15. Furthermore, the petitioners are guilty of

suppression of material facts. In the present writ

petition, the petitioners have not stated anything about

the earlier writ petition and its dismissal. The petitioners

ought to have disclosed the filing of earlier writ petition

and its dismissal in the present writ petition. Only on the

ground of suppression of material information, the writ

petition is liable to be rejected.

16. For the reasons recorded above, there is no merit

in the writ petition. Accordingly, the writ petition stands

rejected on cost of Rs.25,000/- which shall be deposited

before the Karnataka State Legal Services Authority,