Madras High Court
S.Vairavanathan vs M/S.Prem Finance Corporation on 7 June, 2021
C.R.P.Nos.524 to 526 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 07.06.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN, J.
C.R.P. Nos.524 to 526 of 2021
and
C.M.P.Nos.4536 & 4538 of 2021
S.Vairavanathan ...Petitioner in all cases
Vs
M/s.Prem Finance Corporation
Rep by its Power of Attorney
Vishal Lodha
S/o.Prem Prakash Lodha,
No.1, Mangappan Street,
Sowcarpet,
Chennai-600 079. ...Respondent in C.R.P.Nos.524 & 526/2021
1.M/s.Prem Finance Corporation
Rep by its Power of Attorney
Vishal Lodha
S/o.Prem Prakash Lodha,
No.1, Mangappan Street,
Sowcarpet,
Chennai-600 079.
2.C.Soundararajan ... Respondents in C.R.P.No.525 of 2021
Prayer in C.R.P.No.524 of 2021: Civil Revision Petition filed under
Section 115 Code of Civil Procedure, to set aside the fair and decretal
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C.R.P.Nos.524 to 526 of 2021
order dated 21.02.2020 made in E.A.No.3 of 2010 in E.A.No.1 of 2019
in E.P.No.113 of 2017 on the file of the Second Additional District and
Sessions Court, Poonamallee.
Prayer in C.R.P.No.525 of 2021: Civil Revision Petition filed under
Section 115 Code of Civil Procedure, to set aside the fair and decretal
order dated 24.02.2020 made in E.A.No.1 of 2019 in E.P.No.113 of 2017
in Arb.No.226 of 2009 on the file of the Second Additional District and
Sessions Court, Poonamallee.
Prayer in C.R.P.No.526 of 2021: Civil Revision Petition filed under
Section 115 Code of Civil Procedure, to set aside the fair and decretal
order dated 21.02.2020 made in E.A.No.2 of 2010 in E.A.No.1 of 2019
in E.P.No.113 of 2017 on the file of the Second Additional District and
Sessions Court, Poonamallee.
For Petitioner : Mr.N.Manoharan
(in all Cases)
COMMON ORDER
These respective civil revision petitions have been filed against the
orders in E.A.No.3 of 2010 in E.A.No.1 of 2019 in E.P.No.113 of 2017;
in E.A.No.1 of 2019 in E.P.No.113 of 2017; in Arb.No.226 of 2009 and
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C.R.P.Nos.524 to 526 of 2021
E.A.No.2 of 2010 in E.A.No.1 of 2019 in E.P.No.113 of 2017 on the filed
of the learned II Additional District and Sessions Court, Poonamallee.
2. Since the facts of the parties and the issues raised therein are
common, these revision petitions are taken up together and being
disposed of vide this common order.
3. The brief facts leading to the filing of the above execution
applications are as follows:
The petitioners herein is the judgment debtor, while the
respondent is the decree holder. The petitioner has availed financial
assistance under the hire-check purchase agreement for parties of Ford
Icon bearing Registration No.TN 10 K 1618 dated 28.05.2007. Since, the
petitioner has not repaid the loan, the respondent herein invoked
arbitration clause which contained in the hire purchase agreement and
initiated arbitral proceedings against the petitioner, which ended in
passing of arbitral award in Arb.No.226 of 2009 dated 30.10.2009.
Thereafter, in order to execute the award, the respondent being the decree
holder of the award filed the execution petition in E.P.No.113 of 2017 on
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C.R.P.Nos.524 to 526 of 2021
the file of the learned II Additional District and Sessions Judge,
Thiruvallur, Poonamalle. During the pendency of the execution
proceedings the respondent herein has moved an application in E.A.No.1
of 2019 under Section 47 of CPC., seeking to decide execution
proceedings as to the executability and discharge and satisfaction of the
decreetal amount.
4. Resisting the same, the petitioner herein/respondent filed
counter affidavit wherein, he has stated that the application is not
maintainable since the respondent judgment debtor has filed the
application with false and fabricated documents and the claim made by
the respondent in the execution proceedings is not maintainable and
hence, he seeks to dismiss the application.
5. By common order dated 21.02.2020 the Court below dismissed
both the applications.
6. Be that as it may, the petitioner herein has moved two
applications in E.A.No.2 and 3 of 2019 before the Court below, seeking
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C.R.P.Nos.524 to 526 of 2021
to dismiss the petition filed by the respondent under Section 47 CPC and
also to redo the trial of the award and decide whether the petition filed
under Section 47 CPC is maintainable after the respondent having filed a
petition under Section 5 of the limitation Act.
7. By order dated 24.02.2020, having considered the submissions
made on behalf of both sides, the Court below allowed the E.A.No.1 of
2019 having held that the execution Court has only limited jurisdiction to
consider if the decree was passed by the Court/arbitrator had jurisdiction
to decide the issue and it cannot hold any kind of factual enquiry/retrial
of the dispute which has already been decided by the arbitrator.
8. Aggrieved by the respective orders passed in E.A.Nos.1 to 3 of
2019 dated 21.02.2020 and 24.02.2020 the petitioner has come forward
with the present revision petitions.
9. Heard the learned counsel for the petitioner and perused the
entire materials available on record.
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C.R.P.Nos.524 to 526 of 2021
10. On a perusal of the entire materials placed before this Court,
including arbitral award and the orders passed in the E.A.Nos.1 to 3 of
2019, this Court does not find any irregularity or illegality to interfere
with the same. It is not in dispute that the petitioner/judgment debtor has
availed the financial assistance by execution of hire purchase agreement
in favour of the respondent herein. It is also not in dispute that the said
agreement contains arbitration clause in case of any dispute arises
between the parties. Admittedly, the petitioner has failed to repay the
loan amount availed by him, which prompted the respondent to invoke
arbitration clause, initiated arbitral proceedings against the respondent
wherein, the arbitrator has passed an award on 30.10.2009 having issued
notices to the petitioner herein. If at all the petitioner is aggrieved by the
award of the arbitrator, it is for him to work out his remedy in the manner
known to law before the appropriate forum. However, he approached
executing Court by moving an application under Section 47 CPC, which,
the Court below has rightly rejected the same on the ground that it is not
maintainable. It is a well settled law that once the execution of arbitration
agreement is not in dispute and all the issues including jurisdiction are to
be decided by the arbitrator and any factual aspects must be raised before
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C.R.P.Nos.524 to 526 of 2021
the arbitrator. There is an appeal remedy before the appellate forum only
under Section 34 of the Act, certainly knowing that they cannot be raised
in an execution petition as, once the award is passed, it attains finality
and to be executed as a decree of a civil Court.
11. It is pertinent to note that in this case, the award attained
finality, since it was passed by the arbitrator after issuing notices to the
petitioner on 30.10.2010. In fact, the petitioner canvassed before the
executing Court, on the ground questioning the authority of the arbitrator
and merits of the award, which certainly cannot be raised before the
executing Court. Therefore, having allowed the arbitral proceedings to
attain finality when the award is passed, to check the arbitral award
cannot be challenged before the executing Court. Therefore, the Court
below has rightly observed so and dismissed the execution applications
filed by the petitioner.
12. For the foregoing reasons, this Court does not find any scope to
interfere with the order passed by the Court below. Accordingly, the civil
revision petitions fails and they are dismissed as devoid of merits. No
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C.R.P.Nos.524 to 526 of 2021
costs. Consequently, connected civil miscellaneous petitions are also
closed.
07.06.2021
Index:Yes/No
Speaking order/Non-Speaking Order
sbn
To
II Additional District and Sessions Court,
Poonamallee.
https://www.mhc.tn.gov.in/judis/
C.R.P.Nos.524 to 526 of 2021
V.BHAVANI SUBBAROYAN, J.
sbn
C.R.P. Nos.524 to 526 of 2021
and
C.M.P.Nos.4536 & 4538 of 2021
07.06.2021
https://www.mhc.tn.gov.in/judis/
