Madhya Pradesh High Court
Vijay vs Cholamandlam Investment And Finance ... on 28 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 28th OF MAY, 2024
MISC. PETITION No. 1182 of 2024
BETWEEN:-
VIJAY S/O RAMESHCHANDRA
SISODIYA OCCUPATION: BUSINESS SAI
NATH COLONY, BARWANI DISTRICT
BARWANI (MADHYA PRADESH)
.....PETITIONER
(SHRI KULDEEP PATHAK, ADVOCATE)
AND
CHOLAMANDLAM INVESTMENT AND
FINANCE COMPANY LIMITED
THROUGH ITS AUTHORIZED OFFICER
BRANCH OFFICE AT IN FRONT OF
KALKA MATA MANDIR, PALA BAZAR,
BARWANI DISTRICT BARWANI
(MADHYA PRADESH)
.....RESPONDENT
(SHRI ROHIT SHARMA, ADVOCATE FOR RESPONDENT NO.1)
This miscellaneous petition coming on for order this day, the court passed
the following:
ORDER
1. This miscellaneous petition has been filed by the
petitioner/judgement debtor under Article 227 of the Constitution of
India against the order dated 23.1.2024 (Annexure P-3) passed by
the First Additional District Judge, Barwani District Barwani in
Execution (Arbitration) 32/2015 and, vide the impugned order the
Executing Court has held that the Court fees of Rs.4245/- paid by
the respondent, can be accepted in lieu of the stamp duty of the
same amount.
2. In brief facts of the case is that the respondent/judgement
debtor herein has filed an execution of an arbitral award dated
6.5.2014, passed in Arbitration Case No.409/2013 for a sum of
Rs.2,12,208/-. In the aforesaid case, initially an objection was
raised by the petitioner regarding the non-payment of the stamp
duty on the award as prescribed under Section 19-A of M.P.
Amendment Act and (article 11 of schedule 1A of the Indian Stamp
Act,1899 (hereinafter to be referred to as " Act of 1899"), and while
allowing the objections raised by the petitioner, the Executing Court
directed the respondent to pay the Court fees as per stamp Act, and
the respondent has also paid the Court fees to the tune of Rs.4245/-.
3. After the aforesaid court fees was paid by the respondent, an
objection was again raised by the petitioner by filing an application
for review, stating that the court fees which respondent had paid
cannot be accepted towards the stamp duty, as the arbitration award
is required to be properly stamped as per s.19 A of the Act M.P.
amendment Act, and thus, the executing Court, while allowing the
aforesaid review application vide order dated 22.1.2022, directed
the respondents to pay the stamp duty instead of the Court fees.
4. However, subsequently, after a year, a new presiding officer
was appointed who, vide order dated 23.1.2024, suo moto held that
since the respondent has already paid the Court fees instead of
stamp duty of the same amount, it may be a technical impediment
only which should not come in the way of the execution
proceedings, and thus, the presiding officer has continued with the
executing proceedings by issuing warrants of attachment. The
aforesaid order dated 23.1.2024 is under challenge before this
Court.
5. Counsel for the petitioner has submitted that the Court fees
Act and the Stamp Act are two different enactments catering to
different needs, and also has different purposes, and once the
executing Court had already held that the amount of court fees
cannot be adjusted towards stamp duty, it was binding upon the
subsequent presiding officer, and there was no reason for the
subsequent presiding officer to take a different view from the one
which is already taken by the earlier presiding officer. Thus, it is
submitted that the impugned order be set aside.
6. On the other hand, learned counsel for the respondent has
opposed the prayer, and it is submitted that the petitioner has
already paid the court fees as earlier directed by the Executing
Court vide order dated 26.7.2021, and vide order dated 23.1.2024,
the Court was justified in taking a different view as it is only a
technical objection, and thus, it is submitted that the court has
exercised its jurisdiction under Section 47 of the CPC.
7. Heard. Having considered the rival submissions and on
perusal of the documents filed on record, it is found that the
executing proceedings in the present case were started way back on
15.4.2015, in which after much efforts, the judgment debtor, who is
the present petitioner herein, could only be served on 10.12.2015,
and counsel appearing for the petitioner sought time to file reply on
the said date, and the matter continued to be listed and adjourned
before the Executing Court for one reason or the other, and it was
only on 26.7.2021 ,i.e, after a period of around five years,when the
counsel for the judgment debtor raised an oral objection that the
execution is of arbitration award which is only on the stamp of
Rs.150/-, whereas, as per the amendment under Section 19-A of the
Stamp Act in the State of MP, the advoleram duty comes to 2% of
the award of Rs.2,12,208/-.
8. On a close scrutiny of the record, the issue involved is a short
one, and has to be decided in the same manner.
9. It is apparent that the learned judge of the executing court,
vide the order dated 23.1.2024, has reviewed the earlier order
passed by the same Court on 22.1.2022, which, in turn was on an
application filed under Section 114 of the CPC for review of the
earlier order dated 29.11.2021. However, while passing the order
dated 23.1.2024, the learned judge of the Executing Court lost sight
of the bar as provided under Rule 9 of Order 47 of the CPC which
reads as under:-
"9. Bar of certain applications.-- No
application to review an order made on an
application for a review or a decree or order
passed or made on a review shall be
entertained. "
10. Thus, apparently the executing court has acted in excess of its
jurisdiction while passing the impugned order on 23.1.2024.
11. In view of the same, without going into the merits of the case,
the impugned order, being contrary to law is not tenable and is
hereby set aside.
12. However, considering the fact that the petitioner has
apparently succeeded in his plans to further delay the execution
proceedings, despite there being no fault on the part of the decree
holder, and the fact that the objection of stamp duty was raised by
the judgment debtor after a period of 5 years, this Court would not
allow the petitioner to laugh all the way to home, hence the petition
is allowed with a cost of Rs.5000/-,which shall be deposited by him
in the account of - President and Secretary H.C. Employees Union
H.C. (Account No.63006406008, Branch Code No. 30528, IFSC
No.SBIN0030528, CIF No. 73003108919) within a period of 60
days from the date of receipt of this order.
13. It is also directed to the respondent/decree holder to ensure
payment of stamp duty in accordance with law, and if any such
application is filed by the decree holder, the same shall be decided
by stamp collector positively within a month's time, and the learned
judge of the executing court is then requested to proceed further
with the execution, and conclude the same within a further period
of further period of six months, in accordance with law.
14. The petition stands disposed of.
(SUBODH ABHYANKAR)
JUDGE
das
