Madras High Court
M/S.Thambi Modern Spinning Mills ... vs M/S.The Cotton Corporation Of ... on 25 April, 2022
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP(NPD)No.3661 of 2018
and
CMP.No.20372 of 2018
M/s.Thambi Modern Spinning Mills Ltd.,
Rep. By its Managing Director,
Omalur Road, Jagirammapalayam,
Salem – 636 302. ...Petitioners
Vs.
M/s.The Cotton Corporation of India Limited,
Rep. By its General Manager,
1057, Trichy Road, Ramanathapuram,
Coimbatore – 641 045. ...Respondent
Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against the
order of attachment dated 13.03.2018 in R.E.P.No.162 of 2016 in
Ar.O.P.No.12 of 2012 on the file of the Principal District Court, Salem.
For Petitioner : Mr.D.Shivakumaran
For Respondent : Mr.Anirudh Krishnan
1/14
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
ORDER
The revision petitioner and the respondent have been at lis for the
past a decade and more and it is hoped that a quietus will be attained in
view of the sapacious approach of both the learned counsels for the revision
petitioner and the respondent.
2.Mr.D.Shivakumaran, learned counsel who appears for the
revision petitioner, had to face the revision petition with his back to the wall
primarily because there is an award against the revision petitioner passed in
a lawfully instituted arbitration proceedngs in Arbitration O.P.No.12 of
2012. A former District Judge of this judiciary had, by an award dated
19.08.2013, crystalised that the revision petitioner should pay to the
respondent herein, a sum of Rs.67,03,138/- together with interest at 13.5%
per annum from 01.04.2012 and had also directed costs of Rs.32,000/- to be
paid by the revision petitioner.
3.I may also placed on record the sanguine manner, in which
Mr.Anirudh Krishnan, learned counsel for the respondent had advanced
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
arguments. The understanding to discharge the responsibility by the learned
counsel to ensure that a finality is attained in the lis which has been pending
for the past ten years and more is deeply appreciated. This is all the more
important because both the parties are business entitites and having the
shadow of litigation would only impair their business activities and further
progress.
4.Examining the records reveal that the respondent, who deals
with purchase of seed Cotton and also sale of cotton and the revision
petitioner had entered into an agreement for purchase / sale of cotton. The
agreement also stipulated referring the issues which arise in case of disputes
to arbitration. The petitioner would purchase cotton bales in terms of the
agreement and for such purchase, was placed under an obligation to effect
necessary payment. As unfortunately happened, purchases were effected
which in effect meant that the respondent had supplied bales of cotton but
the revision petitioner did not make corresponding payments for purchase of
such cotton bales.
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
5.Invoking the provisions of the Arbitration Act, a claim petition
was filed by the respondent and a learned former District Judge had been
appointed as an Arbitrator and as stated, by an award dated 19.08.2013, the
petitioner herein suffered an order by which the petitioner was directed to
honour his commitment for the cotton bales supplied and for which
payments had not been made. The award which appears on the face of it as
being for a sum of Rs.67,03,138/- had multiplied itself owing to the interest
which had accrued at 13.5% and I am informed that it is now on the verge of
touching the Rs.1.50 crores mark. If litigation were to continue further, the
interest will only accrue thereby burdening the liability of the revision
petitioner and incresaing the frustration of the respondent in not recovering
the due.
6.The revision petitioner, fortunately is possessed of several tracts
of land to which they had fallen back and both the learned counsels, with
much wisdom and prudence had thought about bringing to sale, not the
entire tracts of lands as was sought by the respondent herein but a portion of
it which the learned counsel, Mr.D.Shivakumaran states would be more than
sufficient to honour the award.
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
7.The lands available over which the respondent herein has a
claim, and a legally enforceable claim are as follows:-
Sl. Survey Acre Extent Present Market
No No. Sq.ft. Guideline Value Value as
(@ Rs.1,005/- Per on
Sq.ft.) Rupees 22.05.2019
(Rupees /
in Crores)
1 202/1 0.53 ½ 23,304 ½ 2,34,21,022/- 12.95
2 203/1L 1.30 56,205 5,64,86,025/- 11.23
(With super
Structure)
3 a) 206/1 1.18 51,400.8)
(Part) (With Bldg) )
)
b)206/3 1.97 85,813 )
(Part) (With Bldg) ) 13,78,99,869/- 32.30
4 206/3 0.85 36,858.38 3,72,11,130/- 19.73
(Part) (With Bldg)
Total 76.21
8.Even if some credence has to be given that the market value
might be a self-serving amount stated by the revision petitioner, still, if
some leverage of percentage is granted, it is still insisted that the sale of the
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
1st item of the land mentioned above namely, lands situated in Survey
No.202/1 measuring 0.53 ½ cents, can be sold and it is stressed by
Mr.D.Shivakumaran that if sale is effected in proper manner, the amount
realised would cover the amounts due and payable to the respondent herein.
9.I am also informed that the aforementioned four seperate tracts
of land have separate boundaries and are also identifiable. It is also stated
that the entire lands abut a National Highway and therefore, there is always
a possibility of they being sold, if sold in public auction by the Court. The
Court will also naturally stand indemnity for the title and that would given
an assurance for any purchaser of the said lands.
10.The respondent herein, to recover the amounts had initiated
REP.No.162 of 2016 in the aforementioned Arbitration O.P.No.12 of 2012.
The said Execution Petition is now pending on the file of the Principal
District Court at Salem.
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
11.The order of attachment all the aforementioned four tracts of
land dated 13.03.2018 is assailed in this revision petition.
12.It is claimed that the lands are far in excess to the amount
realisable by the respondent and therefore, it is urged by
Mr.D.Shivakumaran that the 1st item of land in Survey No.202/1 measuring
53 ½ cents alone can be brought to sale and thereafter, depending on the
realisation of the sale amount, the Court can, if reqiured proceed with the
same exercise with the other tracts of land.
13.Naturally, the respondent herein would be interested in
ensuring that the other tracts land are not dealt by the petitioner to the
adverse interest of the respondent To this extent, some assurance will have
to be given to the respondent and the only assurance a Court of law can hold
out is calling upon the petitioner to file an affidavit that they are prepared to
bringing on sale the 1st item of the property mentioned above in Survey
No.202/1 measuring 53 ½ cents and that they would not deal with the other
properties mentioned above / lands mentioned above and if at all, they are to
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
be dealt with, they would deal with them only in manner known to law
through the Principal District Judge at Salem where R.E.P.No.162 of 2016 is
now pending.
14.Let me not enter into a discussion over the value of the lands in
survey number 202/1 and let me also not enter into any discussion about its
marketability. These are issues which the Executing Court will have to
examine and I would leave that exercise to the privilege and wisdom of the
District Judge at Salem.
15.The Civil Revision Petition can be disposed of and the
following terms are issued to the District Court at Salem:-
1) The Principal District Court, Salem may retain attachment of
the aforementioned four tracts of land.
2) Out of the lands attached, the Principal District Court, Salem
may cause delineation of the lands mentioned in Survey No.202/1
measuring 53 ½ cents. For this purpose, a Surveyor may be appointed to
identify the said Survey No.202/1 measuring 53 ½ cents and definite
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
boundaries may be drawn with respect to the said lands.
3) The revision petitioner herein / judgment debtor may be called
upon to file the latest encumberance certificate for the past 31 years over the
said Survey No.202/1 and simultaneously also file an affidavit indicating
that there are no another encumberances or charge created over the said
survey number and if created, a further undertaking must be given that they
would take up the responsibility of ensuring that such charge or
encumberance is cleared in manner known to law.
4) If it is thought required and if it is thought prudent, the
Principal District Court at Salem may also issue notice to those creditors or
institutions / individuals who have created a charge over the said land in
Survey No.202/1 and they may also be informed about this particular sale
and if their amounts are due and payable to them, they may also participate
in the sale and ensure that the sale goes through and from the amounts
obtained from the sale, the amounts due to them may also be satisfied.
5) The Principal District Court at Salem may however, keep in
mind that the decree holder / respondent herein will have a first charge over
the lands and the amounts realised by the sale should be utilized first for
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CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
satisfying the amounts due and payable to the decree holder / respondent
herein and the remain can if at all there are any other creditors be utilized to
satisfiy their debts.
6)The District Court need not go out of its way to satisfy the debts
of the other creditors, since they are not parties to the Execution Petition
and quite strictly they are third parties themselves. The additional amounts
realized through the sale may be returned back to the revision petitioner /
judgment debtor with an undertaking that he would ensure that any one of
those institutions / individuals who had not claimed do not obstruct the right
and interest of the decree holder for the amounts mentioned in the
Execution Petition for which they are lawfully entitled.
16.The revision petitioner / judgment debtor may also file
necessary affidavit with respect to marketable title and clear title which
would have to be filed along with the encumberance certificate produced by
him, and would also, after giving an undertaking that if the sale proceeds are
not enough to satisfy the decree then, the Executing Court will have every
right to proceed with the other tracts of lands one by one to ensure that the
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CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
decree holder's claim is satisfied. The Principal District Court, Salem may
take that decision after examining the sale proceeds is for Survey No.202/1
measuring 53 ½ cents.
17.The Principal District Court may follow the procedure as given
under Order 21 of C.P.C., while bringing about the sale and adhere to the
time limits and it is hoped that an endeavour would be made to ensure that
the Execution petition is brought to a quietus and the amounts due and
payable to the decree holder are paid out from the consideration received
through sale of survey No.202/1 measuring 53 ½ cents.
18.No further directions are required and I would leave it to the
wisdom of the Principal District Court at Salem to address any other issue
brought about by the parties during the course of hearing of R.E.P.No.162 of
2016 in Arbitration O.P.No.12 o 2012
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
19.This Civil Revision Petition is disposed of with the above
directions. No costs. Consequently, connected miscellaneous petition is
closed.
25.04.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking / Non-speaking order
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
To:-
The Principal District Court,
Salem.
https://www.mhc.tn.gov.in/judis
CRP(NPD)No.3661 of 2018
and CMP.No.20372 of 2018
C.V.KARTHIKEYAN, J.
KKN
CRP(NPD).No.3661 of 2018
and
C.M.P.No.20372 of 2018
25.04.2022
https://www.mhc.tn.gov.in/judis
