Telangana High Court
The Superintending Engineer vs Kpc Projects Limited on 3 January, 2025
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
CIVIL REVISION PETITION Nos.4156 and 4220 of 2024
COMMON ORDER:
(Per the Hon'ble the Chief Justice Alok Aradhe)
Mr. C.V.Mohan Reddy, learned Senior Counsel
representing Mr. K.Dhananjaya Naidu, learned counsel for
the petitioner, appears through video conferencing.
Mr. Arvind Kumar Agarwal, learned counsel for the
respondent.
2. With the consent of the learned counsel for the
parties, the civil revision petitions are heard finally.
3. In C.R.P.No.4156 of 2024, the petitioner has assailed
the validity of the order dated 19.09.2024 passed in
C.E.A.No.1 of 2024 in C.E.P.No.8 of 2024, whereas in
C.R.P.No.4220 of 2024, the petitioner has assailed the
validity of the order dated 18.12.2024 passed in
C.E.A.No.16 of 2024 in C.E.P.No.8 of 2024 by the Court of
the Additional Special Court in the Cadre of District Judge
for Trial and Disposal of Commercial Disputes at
Hyderabad, City Civil Court, Hyderabad (hereinafter
referred to as, "the Executing Court"). The common issue
arises for consideration in these civil revision petitions i.e.,
with regard to territorial jurisdiction of the Executing Court
to deal with the execution petition filed by the petitioner.
Therefore, these civil revision petitions are heard
analogously and are being decided by this common order.
4. Facts leading to filing of these civil revision petitions
briefly stated are that the petitioner is the Andhra Pradesh
Tourism Development Corporation Limited (hereinafter
referred to as, "the judgment debtor") and is controlled by
the Government of Andhra Pradesh. The judgment debtor
has entered into an agreement on 15.04.2013 with the
respondent, namely KPC Projects Limited (hereinafter
referred to as, "the decree holder"). Under the aforesaid
agreement, the decree holder had agreed to execute the
work of construction of buildings at the rates agreed upon
and shown in the Schedule A of the agreement. Clause 22
of the agreement provides for settlement of disputes
through arbitration. Clause 22.2(c) of the agreement
provides that the arbitration proceedings shall be held at
Hyderabad, which reads as under:
"22.2(c) Arbitration proceedings shall be held at
Hyderabad, India, and the language of the
arbitration proceedings and that of all documents
and communications between the parties shall be
English."
5. A dispute had arisen between the parties and
therefore the arbitral tribunal was constituted. The
arbitral tribunal passed an award on 03.12.2022 at
Hyderabad by which a sum of Rs.3,17,32,913/- along with
interest has been awarded in favour of the decree holder.
6. The judgment debtor did not challenge the award by
filing a petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as, "the Act").
The award passed in favour of the decree holder has
attained finality. Thereafter, the decree holder filed a
petition seeking execution of the award dated 03.12.2022
before the Executing Court. The judgment debtor entered
appearance and raised an objection that the Court in
Hyderabad does not have territorial jurisdiction to deal
with the execution petition, as the office as well as assets of
the judgment debtor are situated in the State of Andhra
Pradesh i.e., beyond the territorial jurisdiction of the Court
in Hyderabad.
7. The Executing Court after hearing the parties, by an
order dated 19.09.2024, inter alia, held that the venue of
arbitration is Hyderabad and the proceedings of the
arbitral tribunal were conducted in Hyderabad. It was
further held that since the award was passed in Hyderabad
in pursuance of the agreement between the parties,
therefore the Executing Court, had jurisdiction to deal with
the execution petition filed by the decree holder. The
Executing Court also directed the judgment debtor to
furnish the list of assets in Form No.16A of Appendix E of
the Code of Civil Procedure, 1908 (CPC), within a period of
four weeks from the date of the order.
8. The judgment debtor thereupon furnished an
undertaking on 29.11.2024 that direction contained in the
order dated 19.09.2024 shall be complied with and sought
time on 16.12.2024 to comply with said order dated
19.09.2024. Thereafter, the judgment debtor filed an
objection before the Executing Court that it had no
jurisdiction to entertain execution proceeding and sought
extension of time to comply with the order dated
19.09.2024. The aforesaid application was rejected by an
order dated 18.12.2024. In C.R.P.No.4156 of 2024 the
order dated 19.09.2024 has been challenged, whereas in
C.R.P.No.4220 of 2024, the judgment debtor has assailed
the order dated 18.12.2024 passed by the Executing Court.
9. Learned Senior Counsel for the judgment debtor
submitted that the Executing Court ought to have
appreciated that the assets of the judgment debtor are
situated beyond the territorial jurisdiction of the Court and
therefore the Executing Court had no territorial jurisdiction
to proceed with the execution petition. It is further
submitted that the decree holder ought to have filed an
application to the Court seeking transfer of the decree. In
support of the aforesaid submission, reliance has been
placed on the decision of the Supreme Court in Sundaram
Finance Limited v. Abdul Samad 1.
10. On the other hand, learned counsel for the decree
holder has submitted that by the impugned order dated
19.09.2024, the judgment debtor has been asked only to
furnish the list of assets and the issue relating to
jurisdiction of the Executing Court to proceed further with
the execution of the decree is yet to be decided. In support
of the aforesaid submission, reliance has been placed on
the decision rendered by a learned Single Judge of the High
Court of Calcutta in MSTC Limited v. Krishna Coke
(India) Private Limited 2.
11. We have considered the rival submissions made on
both sides and have perused the record.
12. Before proceeding further, it is apposite to take note
of the relevant provisions of CPC.
(2018) 3 SCC 622
2019 SCC OnLine Cal 7293
13. Order XXI of CPC deals with execution of decrees and
orders. Order XXI Rule 5 provides for the mode of transfer,
whereas Order XXI Rule 6 deals with the procedure where
Court desires that its own decree shall be executed by
another Court. Order XXI Rule 41(1) of CPC provides that
where a decree is for the payment of money, the decree
holder may apply to the Court for an order that the
judgment debtor or where the judgment debtor is a
corporation, any officer thereof, or any other person, be
orally examined as to whether any or what debts are owing
to the judgment debtor and whether the judgment debtor
has any and what other property or means of satisfying the
decree. Order XXI Rule 41(2) of CPC, which is relevant for
the purposes of controversy involved in these civil revision
petitions, reads as under:
"(2) Where a decree for the payment of money has
remained unsatisfied for a period of thirty days, the
Court may, on the application of the decree-holder
and without prejudice to its power under sub-rule
(1), by order require the judgment-debtor or where
the judgment-debtor is a corporation, any officer
thereof, to make an affidavit stating the particulars
of the assets of the judgment-debtor."
14. Now we may advert to the decision of the Supreme
Court in Sundaram Finance Limited (supra). In
Sundaram Finance Limited (supra), the Supreme Court
dealt with the following issue, which is stated in the
opening paragraph of the judgment:
"1. The divergence of legal opinion of different
High Courts on the question as to whether an
award under the Arbitration and Conciliation Act,
1996 (hereinafter referred to as "the said Act") is
required to be first filed in the court having
jurisdiction over the arbitration proceedings for
execution and then to obtain transfer of the decree
or whether the award can be straightaway filed and
executed in the Court where the assets are located
is required to be settled in the present appeal."
The aforesaid issue was answered by the Supreme
Court in paragraph 22 of the judgment in the following
terms:
"20. We are, thus, unhesitatingly of the view that
the enforcement of an award through its execution
can be filed anywhere in the country where such
decree can be executed and there is no requirement
for obtaining a transfer of the decree from the
Court, which would have jurisdiction over the
arbitral proceedings."
15. However, in the instant case, the Executing Court
has required the judgment debtor to furnish the
particulars of its assets in Form No.16A of Appendix E of
CPC. The Executing Court, after requisite information is
furnished by the judgment debtor, has to determine
whether it has territorial jurisdiction to proceed further
with the execution proceeding. On determination of such a
question, the Executing Court has to proceed further. The
Executing Court, without ascertaining whether or not the
properties of the judgment debtor are situated within the
territorial jurisdiction, has held as follows:
"On perusal of the arbitration clause
mentioned in the agreement between the parties, it
is agreed that the arbitration proceedings shall be
held at Hyderabad and the proceeding were held at
Hyderabad and award was passed in Hyderabad in
pursuance to the agreement between the parties
and this court has jurisdiction to entertain the
present CEP."
16. Thus, it is evident that the Executing Court failed to
advert itself to the issue with regard to territorial
jurisdiction and in a cryptic and cavalier manner has
recorded a finding that it has jurisdiction to proceed
further with the execution proceedings. The order passed
by the Executing Court does not contain any cogent
reasons for arriving at the conclusion that it has territorial
jurisdiction to proceed further with the execution
proceedings. The order passed by the Executing Court
only records the conclusion and not the relevant reasons.
The same, therefore, cannot be sustained in the eye of law.
17. For the aforementioned reasons and in the facts and
circumstances of the case, the order dated 19.09.2024
passed in C.E.A.No.1 of 2024 in C.E.P.No.8 of 2024 and
order dated 18.12.2024 passed in C.E.A.No.16 of 2024 in
C.E.P.No.8 of 2024 insofar as it records a finding that the
Executing Court has jurisdiction to deal with the execution
proceeding, is set aside.
18. The judgment debtor is directed to furnish the
information with regard to its assets in Form No.16A of
Appendix E of CPC within a period of three weeks from
today. Thereupon, the Executing Court shall deal with the
objection with regard to the territorial jurisdiction raised by
the judgment debtor afresh by a speaking order and shall
decide the execution proceedings in accordance with law.
19. Accordingly, the civil revision petitions are disposed
of.
Miscellaneous applications pending, if any, shall
stand closed. However, there shall be no order as to costs.
______________________________________
ALOK ARADHE, CJ
______________________________________
J.SREENIVAS RAO, J
03.01.2025
Note: Issue C.C today.
B/o.
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