Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 108 (JHR)

State of Jharkhand v. G. S. Atwal & Co. (Engineering) Pvt. Ltd.

2012-01-19

POONAM SRIVASTAV

body2012
Judgment Heard Sri Sirjit Choudhary, learned counsel appearing on behalf of the revisionist and Sri Rajesh Kumar appearing on behalf of the opposite party. Affidavits have been exchanged. With the consent of the counsels, this revision application is being heard and decided finally at the stage of admission itself. Order impugned is dated 7th May, 2010 passed by the Sub-Judge-I at Seraikella in Execution Case No. 1 of 1995. The controversy was referred to arbitration and there were 14 claims before the Arbitrator. The sole Arbitrator Sri A.K. Basu, (Retired Engineer-in-Chief), Irrigation Department, gave his Award on all 14 claims on th June, 1992. The compensation claim was made the Rule of the Court vide judgment and order dated 20.8.1993 in Misc. Case No. 10 of 1992 arising out of Title Suit No. 13 of 1992. This judgment was challenged by the State in Misc. Apeal No. 601 of 1993(R), which was dismissed vide judgment and order dated 23.5.1997. This order was challenged before the Hon'ble Supreme Court vide S.L.P.(Civil) No. 16977 of 1997, which was dismissed on 19th September, 1997. The original decree of the Title Suit No. 13 of 1992 is placed by the learned counsel appearing on behalf of the revisionist to demonstrate that value of the suit as mentioned in the decree is Rs. 14,38,260/-and, therefore, the execution of the decree cannot go behind the decree and exceed the said valuation. Thus order impugned in the instant revision dated 7th May, 2010 in Execution Case No. 1 of 1995 passed by the Sub-Judge-I, Seraikella is beyond the jurisdiction and liable to be quashed. Perusal of the “Award” at serial no. 14.4 discloses that : “Award” “14.4-the work of so ftrock with blasting is admied but regarding the quantity this has to bea ived at by the Chief Engineer of the Project as required in the schedule of rate. The Extr aitem can be paid as per the sanctioned schedule of rate of that time”. Further on perusal of the “Award” regarding claim of item nos. 6 and 7 it transpires that amount was to be assessed after joint measurement was made by the Engineer. The opinion of the Arbitrator is to the effect that some extra work was carried out which requires actual verification at the site, so that quantum of work can only be measured by the Superintending Engineer after due verification. 6 and 7 it transpires that amount was to be assessed after joint measurement was made by the Engineer. The opinion of the Arbitrator is to the effect that some extra work was carried out which requires actual verification at the site, so that quantum of work can only be measured by the Superintending Engineer after due verification. Since the “Award” was made “Rule of the Court” and was upheld upto the stage of the apex Court. The conclusion recorded regarding item nos. 6 and 7 was also final. The claimant was not paid the entire compensation regarding claim nos. 6 and 7. Hence, the Execution Case No. 1 of 1995 was instituted. The order passed by the Sub-Judge-I, Seraikella is challenged on the ground that the Executing Court could not direct payment of amount in excess of the valuation of the decree, which is only Rs. 14,38,260/-along with an interest @ 13% p.a. The argument is that under Order 20 Rule 6A C.P.C. Provides that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. The next argument is that after a judgment is given which attains finality then execution of the decree of the Court cannot go beyond the judgment and decree. Learned counsel emphatically submits that Item nos. 6 and 7 was not quantified at the time of delivery of “Award” and, therefore, Executing Court exceeded its jurisdiction in quantifying the amount which is beyond valuation of the suit and, therefore, the impugned order is liable to be set at naught. He has cited decision of the Supreme Court in support of the argument in the case of Vasudev Dhanjibhai Modi V. Rajabhai Abdul Rehman and others, A.I.R. 1970 Supreme Court 1475. Para-6 of judgment is reproduced herein below: “ACourtexecutingadecreecannotgobehindthedecreebetween thepartiesortheirrepresentatives,itmusttakethedecree accordingtoitstenor,andcannotentertainanyobjectionthatthe decreewasincorrectinlaworonfacts.Untilitissetasidebyan appropriateproceedinginappealorrevision,adecreeevenifitbe erroneousissti bindingbetweentheparties”. Sri Rajesh Kumar, learned counsel appearing on behalf of the opposite party has emphatically disputed the arguments of the counsel of the revisionist and submits that claim nos. 6 and 7 of the “Award” was very specific that the compensation is to be assessed subsequently after the measurement made by the Engineer and, thus, it was not quantified. The parties to the arbitration were required to get the joint measurement done and, therefore, the compensation be fixed. 6 and 7 of the “Award” was very specific that the compensation is to be assessed subsequently after the measurement made by the Engineer and, thus, it was not quantified. The parties to the arbitration were required to get the joint measurement done and, therefore, the compensation be fixed. Reliance has been placed by Sri Rajesh Kumar on another decision of the apex Court, namely, Bhavan Vaja and others V. Solanki Hanuji Khodaji Mansang and another A.I.R. 1972 Supreme Court 1371 in support of his argument that no doubt the Executing Court cannot go behind decree under execution. But that does not mean it has no duty to find out the true effect of that decree. In the circumstance, the contention of the opposite party's counsel is that in express compliance of the Award including compensation in respect of Item Nos. 6 and 7 was to be calculated after making measurement by the Engineer and this has precisely been done in the instant case. Item nos. 6 and 7 which was unquantified Award was confirmed and upheld up to the stage of the Hon'ble Supreme Court and, therefore, it cannot be set at naught only because the valuation of the suit was rs. 14,38,260. I have given my thoughtful consideration to the arguments, examined the Award , Judgment which was passed by the Sub-Judge-I, Seraikella making the Award as Rule of the Court as well as the order impugned passed by the Executing Court and I am of the opinion that the Award was given accepting the claim of the claimant-opposite party. No doubt the valuation of the suit was Rs. 14,38.260/-, but the Award was granted in respect of the claimed amount along with an interest @ 13% p.a. The claim of the contesting opposite party in respect of Item nos. 6 and 7 which was to be assessed after making actual measurement on the site jointly by the two parties. Evidently the concerned engineer gave its conclusion after calculating the amount in confirmation with the measurement. Perusal of the impugned order makes it evident that the Executing Court is very clear that the joint measurement of claim nos. 6 and 7 mentioned in the arbitration Award was kept in abeyance. Meaning thereby the amount was not fixed and Award in respect of Item nos. 6 and 7 was not quantified. Perusal of the impugned order makes it evident that the Executing Court is very clear that the joint measurement of claim nos. 6 and 7 mentioned in the arbitration Award was kept in abeyance. Meaning thereby the amount was not fixed and Award in respect of Item nos. 6 and 7 was not quantified. The Executing Court examined the record and came to the conclusion that an application was filed on 21.3.1995 for appointment of Engineer Commissioner to make measurement of the work done by the plaintiff-petitioner in respect of Claim nos. 6 and 7. The judgment debtor was allowed several opportunities and every time matter was postponed on the request of the judgment-debtor and finally the measurements were made in his absence. Having no alternative the decree-holder filed his own measurement and the copy was served to the defendant. Matter was heard on 16.12.1999 and the Executing Court passed the impugned order. Revisionist all along adopted a lackadaisical attitude. Evidently this was done to linger the payment so that the decree could not be satisfied, which resulted in escalation of amount after calculating the interest @ 13% p.a. Along with the amount assessed by the Engineer in respect of Item nos. 6 and 7 of the Award. In my opinion, there is no error in the judgment. The Executing Court was well within its jurisdiction to ensure that the Award is satisfied, which was passed more than 25 years back. Now by this time the amount has escalated and today the revisionist cannot object that the amount is in excess many fold than the value of the original suit. In view of what has been stated, I do not find any merit in the revision application. It is, accordingly, dismissed. No order as to the costs.