Madras High Court
T.Sukumari vs M/S.Hbd Financial Services Ltd on 9 November, 2021
C.R.P.(MD) No.1022 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1022 of 2021
T.Sukumari .. Petitioner
-vs-
M/s.HBD Financial Services Ltd.,
Process House 2nd Floor,
Law Garden Road, Narayanapura,
Ahmedabad-380009, Gujarat,
Through its duly Constituted Attorney/
Authorized Signatory, Mr.Madhukumar.R .. Respondent
Prayer :- Petition filed under Section 115 of Code of Civil Procedure to
set aside the order dated 10.06.2021 passed in E.P.No.134 of 2018 in
Ar.O.P.No.336/9/2017 on the file of the Principal District Judge of
Kanyakumari at Nagercoil.
For Petitioner : Mr.T.Lajapathi Roy
For Respondent : No appearance
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C.R.P.(MD) No.1022 of 2021
ORDER
The petitioner is before this Court challenging the order in E.P.No.
134 of 2018, dated 10.06.2021 on the file of the Principal District Judge
of Kanyakumari at Nagercoil whereby, the attachment of the property of
the judgment debtor has been ordered.
2.The facts in brief, which have to be considered by this Court for
arriving at a decision, are narrated hereinbelow:-
2.1.The respondent-Finance Company had initiated arbitral
proceedings against the revision petitioner and two others viz., Srimun &
Co. and Ravichandran.C for non payment of dues. Since the loan
agreement contained an arbitration clause, the respondent-company had
invoked the arbitration clause and appointed an Arbitrator. The
Arbitrator, who had entered appearance, had issued notice to the
petitioner, Srimun & Co. and Ravichandran.C, who had not appeared
before the Sole Arbitrator. Consequently, they were set ex-parte and
ultimately, an award was passed directing the petitioner, Srimun & Co.
and Ravichandran.C to pay a sum of Rs.26,03,536/- as on 17.07.2017
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C.R.P.(MD) No.1022 of 2021
with interest at the rate of 18% per annum from 17.07.2021 and an
injunction not to alienate in any manner the property mortgaged by them
to the respondent/claimant.
2.2.Since no payment had been made by the petitioner and the
other borrowers, the respondent herein had filed E.P.No.134 of 2018 on
the file of the Principal District Judge, Nagercoil for a direction to the
petitioner to deposit the award amount failing which, order sale of the
scheduled mentioned property.
2.3.The petitioner herein, who had entered appearance, had filed
counter statement denying the contents of the Execution Proceedings.
The petitioner had challenged the very award in her counter to the
Execution Proceedings and had also stated that the property, that is,
proposed to be sold, is the residential house of the petitioner, which
cannot be brought to sale. She would, therefore, seek to have the
Execution Petition dismissed.
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C.R.P.(MD) No.1022 of 2021
2.4.After hearing both the parties, the learned District Judge of
Kanyakumari allowed the Execution Petition and directed attachment of
the properties.
3.Mr.T.Lajapathi Roy, learned counsel appearing on behalf of the
petitioner would submit that the property, which is sought to be attached,
is the dwelling house, which cannot be attached and he had also
challenged the jurisdiction of the Arbitral Tribunal in passing the order,
since the dispute, according to the petitioner, was not arbitrable. It is
seen that the award has not been challenged by the other two borrowers
in the Arbitration Original Petition. Further, the petitioner has not
provided any proof to substantiate her claims and neither has she come
forward to discharge the debt. The petitioner is seeking to agitate the
award passed by the Arbitrator in the Execution Proceedings without
taking out an application to set aside the ex-parte order. It is an
axiomatic principle of law that the Executing Court cannot go behind the
decree. Therefore, the contentions of the petitioner questioning the
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C.R.P.(MD) No.1022 of 2021
correctness of the award is without basis and this Court do not find any
reason to dis-agree with the order passed by the District Judge of
Kanyakumari at Nagercoil.
4.In the result, the Civil Revision Petition is dismissed. No costs.
09.11.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
To
Principal District Judge of Kanyakumari at Nagercoil.
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
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C.R.P.(MD) No.1022 of 2021
P.T.ASHA, J.
abr
C.R.P.(MD)No.1022 of 2021
Dated: 09.11.2021
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