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2015 DIGILAW 1447 (JHR)

Vardan Builders v. Veer Krishna Sahay

2015-11-21

SHREE CHANDRASHEKHAR

body2015
JUDGMENT : This case has a long checkered history. The dispute between the parties led to appointment of a sole arbitrator by this Court. The challenge to the award by the petitioner M/s. Vardan Builders failed and the award dated 31.10.2004 attained finality after dismissal of the Special Leave Petition (C) No.11368 of 2007 on 23.07.2007. Thereafter, at the execution stage the parties approached this Court against orders passed in Execution Case No. 3(A) of 2005. The award dated 31.10.2004 has different components relating to car parking, boundary wall, possession of total constructed area etc. The dispute which has led to filing of the present writ petition relates to completion of boundary wall measuring 31.512 meter. The award on the said issue reads as under: (b) “The respondent-Builder should also complete the incomplete portion of the boundary wall measuring 31.512 meter and should make provision for clearing the drain water from the ground chamber towards the main municipal drain in the front side of the building within 15 days, failing which he will be liable to pay Rs.30,000/- per month for first six months w.e.f. 16th day (from today) and Rs.50,000/- per month thereafter, till the above construction is complete”. 2. The decree-holder filed an application on 02.08.2007 claiming payment of Rs. 15,10,000/on account of non-completion of boundary wall and drain. In the said application, the decree-holder after adjustment of security amount, interest, cost of deviation etc. had claimed payment of Rs. 18,22,400/- and the said amount was paid by the judgment-debtor by way of Bank Draft and Managers Cheque. The decree-holder again filed an application on 15.04.2014 claiming Rs. 21,46,667/- on account of delayed completion of boundary wall and the drain. The said application has been allowed vide order dated 27.01.2015 in Execution Case No. 3(A) of 2005, against which the present writ petition has been filed. 3. Mr. Rajesh Kumar, the learned counsel for the petitioner referring to application dated 07.03.2009 filed by the decree-holder in the Execution Case No. 3(A) of 2005 submits that, though the decree-holder himself admits that penalty for delayed construction of boundary wall and drain till 02.08.2007 has been paid, vide impugned order dated 27.01.2015 the executing court has erroneously ordered payment for the said period also. It is contended that the construction of the boundary wall after 17.08.2007 was beyond the control of the judgment-debtor and therefore, the petitioner is not liable to make payment for delayed completion of the boundary wall. It is contended that in view of order dated 17.08.2007 in UC Case No. 218 of 2007 passed by the Ranchi Regional Development Authority(RRDA) staying further construction in Surbhi Apartments, the petitioner could not have carried further construction of the boundary wall and therefore, it is not liable to pay penalty for delayed construction of the boundary wall and the drain. 4. Referring to application dated 15.04.2014, Mr. Sumeet Gadodia, the learned counsel for the respondent submits that the claim of the petitioner is confined to the calculation given in paragraph no. 4 of the said application. 5. The application dated 07.03.2009 in Execution Case No. 3(A) of 2005 filed by the decree holder discloses that for delayed construction of boundary wall till 02.08.2007, the decree holder claimed an amount of Rs. 18,22,400/ and the said amount was paid by the judgment debtor through Demand Draft for Rs. 5 lakhs and Managers Cheque for Rs. 13,22,400/. The impugned order dated 27.01.2015 merely reproduces the calculation given by the decree holder in application dated 15.04.2014 and it does not take note of payment of the penalty up to 02.08.2007 by the judgment debtor. In the reply filed by the judgment debtor in the present proceeding it has been admitted that the petitioner had paid penalty up to 02.08.2007 on account of delayed completion of the boundary wall. This Court vide order dated 09.04.2012 in W.P.(C) No. 2034 of 2010 has seriously criticized the approach of the trial court, still in the present proceeding, I find that the impugned order dated 27.01.2015 has been passed in a manner which would only disclose non-application of mind by the executing court. 6. In so far as, the penalty between the period 24.01.2013 to 31.01.2014 is concerned, the learned counsel for the petitioner submits that the petitioner was not a party in the proceeding before the Ranchi Regional Development Authority and it had no knowledge of the final order passed by the Ranchi Regional Development Authority. 6. In so far as, the penalty between the period 24.01.2013 to 31.01.2014 is concerned, the learned counsel for the petitioner submits that the petitioner was not a party in the proceeding before the Ranchi Regional Development Authority and it had no knowledge of the final order passed by the Ranchi Regional Development Authority. It is contended that the decree holder was a party in the proceeding before the Ranchi Regional Development Authority and it was for the decree holder to bring to the notice of the executing court, the order passed by the RRDA vacating the stay which was granted on 17.08.2007. Seriously objecting to the plea taken by the petitioner, Mr. Sumeet Gadodia, the learned counsel for the respondent submits that the objection before the Ranchi Regional Development Authority was initiated at the instance of the judgment debtor and it itself produced the initial order of stay and therefore, it cannot plead ignorance of the final order passed in U.C. Case No. 218 of 2007. In the rejoinder filed by the decree holder, the decree holder has asserted as under : 16. “That the third objection raised by the judgment debtor regarding delay in production of the order withdrawing stay on construction activity by the decree holder has also no leg to stand. In this context it is most humbly stated and submitted that the order dated 17.08.07 which was passed by the competent authority staying the construction activity, was brought on record by the judgment-debtor before this Hon'ble Court for demonstrating its inability in making the construction activity. If the original order of stay can be introduced by the judgment-debtor before this Hon'ble Court for non-construction of the boundary wall and drainage, order vacating the order of stay is to be presumed within the knowledge of the judgment debtor and plea of delay in introduction of said order is wholly frivolous and untenable in the eye of law.” 7. From the materials brought before the executing court, I find that there is no dispute that the petitioner was not a party in U.C. Case No. 218 of 2007. The respondent has not specifically pleaded and brought on record any material to assert that the petitioner had knowledge of the final order in U.C. Case No. 218 of 2007. From the materials brought before the executing court, I find that there is no dispute that the petitioner was not a party in U.C. Case No. 218 of 2007. The respondent has not specifically pleaded and brought on record any material to assert that the petitioner had knowledge of the final order in U.C. Case No. 218 of 2007. The respondent however, who was a party in U.C. Case No. 218 of 2007 had the knowledge of the final order passed by the Ranchi Regional Development Authority still, it produced a copy of the said order only on 04.01.2014. Merely because the petitioner produced a copy of the stay order of RRDA to plead before the executing court that it was unable to construct the boundary in terms of award dated 31.10.2004 would not lead to a presumption as to knowledge of the final order in U.C. Case No. 218 of 2007 to the petitioner. It is not in dispute that construction of the boundary wall and the drain was complete by 31.01.2014. The respondent has fairly admitted that penalty for delayed construction of boundary wall and the drain between the period 16.11.2004 and 02.08.2007 was paid by the judgment-debtor. It is also apparent that the decree-holder himself has accepted the inability of the builder to construct the boundary wall due to stay order passed by the Ranchi Regional Development Authority inasmuch as, the decree-holder has not claimed penalty for the period between 18.08.2007 and 23.01.2013, during which the order of stay remained operative. The decree holder has failed to establish that the petitioner had knowledge of the final order in U.C. Case No. 218 of 2007 and therefore, it is liable to pay penalty for the period between 24.01.2013 to 31.01.2014. However, I am of the opinion that the judgment debtor is liable to pay penalty for delayed construction of the boundary wall and drain for the period between 04.01.2014, when a copy of the order passed in U.C. Case No. 218 of 2007 was produced before the executing court till 31.01.2014 and it is also liable to make payment for the period between 03.08.2007 to 17.08.2007. 8. Considering the aforesaid facts, the impugned order dated 27.01.2015 is set-aside and it is ordered that the petitioner is liable to make payment to the respondent as indicated hereinabove. Petition disposed of accordingly.