Orissa High Court
Pawan Kumar Modi vs Sulochana Modi on 10 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 136 of 2023
Pawan Kumar Modi .... Petitioner
Mr. Abhisek Mohanty, Advocate
on behalf of Mr. Umesh Chandra Behura, Advocate
-versus-
Sulochana Modi .... Opp. Party
Mr. Goutam Kumar Acharya, Senior Advocate
being assisted by Mr. Arun Kumar Budhia, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 10.04.2023
3. 1. This matter is taken up through Hybrid mode.
2. Order dated 24th November, 2022 (Annexure-1) passed
by learned Senior Civil Judge (Commercial Court), Cuttack in
Execution Petition No.114 of 2021 is under challenge in this
CMP, whereby the objection of the Petitioner/JDr. not to pay
interest on the awarded amount from 13th July, 2016 to 8th July,
2021, has been rejected.
3. Mr. Mohanty, learned counsel appearing on behalf of
learned counsel for the Petitioner submits that in the award
dated 14th December, 2015 in Arbitration Case No.03 of 2013,
the majority of Arbitrators held as under:-
"In view of the foregoing discussions and on due
consideration of the respective claims of the parties
including the evidence brought on record on their sides, the
proceeding is allowed and disposed of on merit and the
partnership "R.M.MILLS" dated 01.04.2009 between the
parties accordingly stands dissolved.
The claimant is entitled to a sum of
Rs.1,12,33,517.73, the respondent on the other hand to take
over the assets and liabilities of the firm including the bank
loans (debtors, creditors other loans etc.) and shall pay
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Rs.1,12,33,517.73 to the claimant towards her share within
a period of 12 months in six equal monthly installment and
the first of such installment shall commence six months
after the date of the award (i.e on 13.07.2016, 13.08.2016,
13.09.2016, 13.10.2016, 13.11.2016 and 13.12.2016
respectively). The respondent on the other hand is at liberty
to make the necessary changes in the constitution of the
firm including in the bank account on production of a copy
of this award and the claimant shall execute all necessary
document or documents in favour of the respondent and
shall give all papers/consent concerning Bank and the
business to him so that there shall be no difficulties to
operate the Bank's account and to turn the business.
In case the claimant's entitlement as mentioned
above are not paid within the stipulated time as stated
above, she is entitled, interest on the said amount of each
installment @ Rs.18,72,252.96 (Rs.1,12,33,517.73 divided
by 6 installment due, for payment till realization.
In the circumstances the parties to bear their own
cost."
DHr./Opposite Party assailed the said award by filing an
application under Section 34 of the Arbitration and Conciliation
Act, 1996 in ARBP No.43 of 2015, which was confirmed vide
order dated 25th September, 2017 passed by learned District
Judge, Cuttack. Being aggrieved, the DHr. assailed the same in
ARBA No.15 of 2017, which was disposed of vide judgment
dated 30th June, 2021 confirming the award passed by the
majority of Arbitrators. During pendency of Arbitration Appeal
before this Court, the DHr./Opposite Party filed Execution
Petition No.114 of 2021 for execution of the award. The
Petitioner/JDr. on his appearance, filed an application under
Section 47 CPC raising a plea that they are not liable to pay
interest for the period from 13th July, 2016 to 8th July, 2021 due
to pendency of litigations before different fora. The said
application was however dismissed. Consequently, the
executing Court directed the DHr. to file a fresh calculation
sheet, vide its order dated 6th September, 2022. Accordingly, a
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fresh calculation sheet was filed on 14th October, 2022 stating
that the DHr. is entitled to receive Rs.1,93,33,346/- from the
JDr., which is inclusive of interest calculated till 30th July, 2022.
It is contended by learned counsel for the Petitioner that since
the JDr. was defending his case in different fora in the
proceedings filed by the DHr./Opposite Party, he is not liable to
pay interest for the aforesaid period. It is his contention that in
the award, the Opposite Party/DHr. has been directed to execute
the necessary documents in favour of the present Petitioner,
which the DHr./Opposite Party failed to do. Learned executing
Court, without properly appreciating the same, accepted the
calculation sheet filed by the Opposite Party, thereby directed
the Petitioner to pay the aforesaid amount and further directed to
pay interest till date.
3.1 It is his submission that since the DHr./Opposite Party
failed to discharge his obligation as per the award, the Petitioner
should not be burdened with the interest for the intervening
period. This aspect although raised was not taken into
consideration. Learned executing Court merely holding that the
executing Court cannot go beyond the award, rejected his
objection. Hence, this CMP has been filed.
4. Mr. Acharya, learned Senior Advocate for the Opposite
Party submits that the executing Court committed no error in
directing the Petitioner to pay the aforesaid amount. Pendency
of different proceedings filed by DHr./Opposite Party cannot
disentitle him to receive interest on the un-paid decreetal
amount. Moreover, such a plea has already been raised and
rejected by the JDr. in a petition under Section 47 and CPC,
which was never challenged and attained its finality. In the
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instant case, the JDr./Petitioner is not disputing the calculation,
but raising objection with regard to payment of interest. As it is
specifically directed in the award itself that JDr. is liable to pay
interest at the rate of 12% per annum from the respective dates
of installment dues he is obliged to pay the same. Thus, learned
executing Court has committed no error in rejecting the
objection raised by the JDr./Petitioner. Hence, he prays for
dismissal of the CMP.
5. Considering the rival contentions of the parties and on
perusal of record, it appears that the majority of arbitrators
passed an award which was unsuccessfully challenged by the
DHr./Opposite Party till this Court. Thus, the award passed by
the majority of Arbitrators has attained the finality. In the
award, it has been categorically directed that in case the claim of
the DHr./Opposite Party as mentioned in the said award is not
paid within the stipulated time, she is entitled to interest on the
amount of each installment at the rate of Rs.18,72,252.98 along
with 12% interest per annum from the respective date of
payment of installments till its realization. It is submitted by Mr.
Acharya, learned Senior Advocate that the plea that the
Petitioner/JDr. is not liable to pay interest for the period of
pendency of litigations before different Courts, has been
rejected by the executing Court in a petition under Section 47
CPC. The said order has not been challenged and attained its
finality. Learned counsel for the Petitioner also does not dispute
the same. Further the Petitioner/JDr. does not assail the
correctness of the calculation made in the calculation sheet
dated 14th October, 2022. It only raised objection with regard to
payment of interest. Since the Petitioner has been directed to
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pay interest at the rate of 12% per annum on the un-paid
installment amount, learned executing Court cannot go behind
the same and entertain the objection with regard to the plea
taken by the Petitioner not to pay the interest amount. In view of
the above, learned executing Court has committed no error in
dismissing the objection raised by the Petitioner.
6. Accordingly, the CMP being devoid of any merit stands
dismissed.
Issue urgent certified copy of this order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
