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2018 DIGILAW 356 (UTT)

Krishna Motors v. Union Govt. of India

2018-07-05

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. Joseph, J. 1. The appellant is the writ petitioner. The reliefs, as sought by the appellant in the Writ Petition, are as follows:- “(a) Issue a writ order or direction in the nature of mandamus directing the respondent’s company respondent no 2 M/s HMT Watch Factory-V, Ranibag through the General Manager, HMT Limited Ranibag, District Nainital of the present Civil Misc. Writ Petition to pay Rs. 41,450,82.00 to the petitioner’s firm as the balance money as per the order dated 19.4.2004 awarded to be petitioner’s firm by the Court of (DJ) Nainital in Miscellaneous Case No. 05 of 2003 which is Annexure No. 3 to this writ petition. (b) Issue a writ order or direction in the nature of mandamus directing the respondent’s company respondent no. 2 M/s HMT Watch Factory-V, Ranibag through the General Manager, HMT Limited Ranibag, District Nainital of the preset Civil Misc. Petition to pay Rs. 41,450,82.00 to the petitioner’s firm as the balance money as per order dated 19.4.2004 awarded to the petitioner’s firm by the court of (DJ) Nainital in Miscellaneous Case No. 05 of 2003 which is Annexure No. 3 to this writ petition and enforce the terms and conditions of the agreement entered between the petitioner’s firm and respondents company.” 2. The case of the appellant, in brief, was as follows: There was an agreement dated 28.03.1990 between the appellant firm and the respondent company. The dispute relates to a suit which arose out of the proceedings under Section 20 of Arbitration Act, 1996, whereby, the Civil Judge (Senior Division) in O.S. No. 138 of 1995, vide its judgment dated 09.11.1998, allowed reference under Section 20. Arbitrators were appointed. A dispute arose between the arbitrators and an Umpire was appointed and an award was passed in favour of the appellant on 19.01.2004. Both parties filed objections under Section 30 and 33 of Indian Arbitration Act, which was registered as Misc. Case No. 04 of 2005. The learned District Judge rejected objection and vide his judgment dated 19.04.2003, made award as rule of Court. An Execution Petition No. 3 of 2004 was filed on 26.06.2004 and that was decided and the decretal amount was calculated as Rs. 6,12,259/- and interest is calculated as Rs. 39,34,639/- which was to be paid and accordingly, Execution Case No. 3 of 2004 was decided on 05.11.2011. An Execution Petition No. 3 of 2004 was filed on 26.06.2004 and that was decided and the decretal amount was calculated as Rs. 6,12,259/- and interest is calculated as Rs. 39,34,639/- which was to be paid and accordingly, Execution Case No. 3 of 2004 was decided on 05.11.2011. It is further case of the appellant that the decretal amount was paid in 115 months by the respondent company. The case was transferred to the Court of Additional District Judge, Haldwani, who directed the appellant to submit the details of payment. By Annexure-7 order, he submitted the details. Ultimately, the Execution Case No. 3 of 2004 was closed down as decree stood satisfied by its order dated 07.12.2013. 3. In short, the case of the appellant is that the appellant has not been paid the entire amount due in terms of the decree arising out of the arbitration proceedings. After exchange of pleadings, the learned Single Judge has dismissed the writ petition by the impugned judgment dated 21.05.2018 noting the stand of the respondents that against the order of the Additional District Judge dated 07.12.2013, closing the execution as a case of decree being satisfied, a Civil Revision Petition No. 107 of 2014 was filed before this Court by the appellant, the same came to be dismissed by the learned Single Judge of this Court on 05.05.2015. In fact, a Review Application No. 360 of 2015 was also filed by appellant and that was also dismissed on 09.03.2016. This fact of filing of Revision, Review and the consequential orders passed has not been disclosed in the writ petition. 4. We heard Shri B.B. Sharma, learned counsel on behalf of the appellant and we also heard Mr. Chetan Joshi, learned counsel on behalf of respondent No. 2. 5. Shri B.B. Sharma, learned counsel for the appellant, would in fact submit that this is a case where under the doctrine of appropriation of payments made by a debtor, the amounts are to be adjusted in a particular manner and after adjustment (if adjustment was to be done in the said manner apparently after adjusting the payments made by the respondents towards interests), large amounts are due as claimed by the appellant. He would cite before us two rulings of the Hon’ble Apex Court in the cases of Harbanslal Sahnia and Others vs. Indian Oil Corporation Ltd. and Others, (2003) 2 SCC 107 and Syed Maqbool Ali vs. State of Uttar Pradesh and Another, (2011) 15 SCC 383 . He would submit that the Court may grant the relief to the appellant who is a senior citizen and in the circumstances alternative remedy available of approaching the Hon’ble Apex Court may not stand in the way of the appellant approaching this Court under Article 226 of the Constitution of India. 6. Shri Chetan Joshi, learned counsel for respondent No. 2 supported the order of the learned Single Judge. 7. The facts of this case are quite clear. Having obtained the decree on the strength of the arbitration award arising out of the arbitration proceedings and being satisfied by it and which is put to execution by the appellant, payments were made. The Execution Court, in the Execution proceedings, closed the execution on 07.12.2013, finding that the decree stood satisfied. Feeling aggrieved, appellant, undoubtedly, approached this Court by filing a Civil Revision Petition. There is no dispute that the said Revision Petition has been dismissed by this Court on 05.05.2015. 8. Learned counsel for the appellant would point out that the Civil Revision Petition has not been dismissed on merit. It is dismissed only on the ground of delay with which the appellant approached the Court. He would, therefore, request us to examine the matter on merits and secure to the appellant the fruits of the decree. 9. We are of the clear view that the approach made by the appellant to this Court is completely misconceived and without any foundation. As already noticed, the appellant laid execution Case No. 3 of 2004 in respect of the decree; the Civil Court has entered satisfaction on 07.12.2013. The appellant chose the remedy of filing a revision; that stands dismissed on 05.05.2015. Though it is dismissed on the ground of delay, we would think that the order of the Execution Court, finding that the decree stands satisfied, has become final. The appellant chose the remedy of filing a revision; that stands dismissed on 05.05.2015. Though it is dismissed on the ground of delay, we would think that the order of the Execution Court, finding that the decree stands satisfied, has become final. Because of dismissal of Revision on 05.05.2015, which was arising of the order passed in the execution proceedings, may be that it has been dismissed on the ground of limitation, but the fact remains that its dismissal will attach finality to execution proceedings unless put to challenge before superior court. As in the proceedings which are dismissed on the ground of limitation, the principal proceedings do not come in existence to be adjudicated on merits and dismissal of delay will result into dismissal of principal proceedings itself. It cannot be the appellant’s case that it is open to a party to approach this Court in proceedings under Article 226 of the Constitution of India challenging the order of the learned Single Judge in Revision. In fact, that is not the appellant’s case also, but even ignoring the order of the learned Single Judge passed in Revision on the ground that it is passed on account of bar of limitation, he cannot certainly be permitted to reopen the matter, which as far as this Court is concerned has attained complete finality; though it is dismissed on the ground of limitation. 10. The reliance placed on the rulings which have been cited by the learned counsel for the appellant are also totally misplaced. Reliance is placed on the ruling in (2011) 15 SCC 383 (supra). In the said case, the writ petition was filed claiming compensation for lands illegally taken away for the construction of the public road. The High Court dismissed it on the ground of not availing of the alternative remedy under Section 18 of the Land Acquisition Act. It is this matter, which was considered by the Hon’ble Apex Court. The Hon’ble Apex Court opined that the High Court did not examine as to whether it is simple boundary dispute requiring a civil suit or a dispute involving public law, involving violation of any fundamental rights or arbitrariness and highhanded action; whether there was sufficient explanation of delay in filing of the writ petition. We see absolutely no basis for the appellant seeking support from the judgment. We see absolutely no basis for the appellant seeking support from the judgment. In this case, we have to notice that as far as this Court is concerned, the order passed by the learned Single Judge of this Court dismissing the Revision Petition and review thereafter on 09.03.2016, affirming the order of the learned Single Judge, cannot be questioned in this Writ Petition and, in fact, it is not questioned also. As far as this Court is concerned, the judgment of the learned Single Judge is to be treated as final having not been challenged by the appellant. The relief sought in the Writ Petition includes, we notice, to pay the balance amount, which according to him, is due. We notice that what is sought is the writ of Mandamus. This question was considered on 07.12.2013 by the Civil Court and it has found that the decree stood satisfied. Reference to relief ‘b’ would also show that the attempt of the appellant to get the balance amount allegedly due to him as per the order dated 19.04.2004 awarded to him by the Court of District Judge, Nainital, and to enforce the terms and conditions of the agreement between the petitioner’s firm and respondent’s company. Whatever be the claim, it has merged in the decree. The decree has been found to be satisfied by the competent Civil Court. The said order has been affirmed by this Court by virtue of the dismissal of the Civil Revision Petition. Therefore, the reliance placed on (2011) 15 SCC 383 (supra) is without any basis at all. Equally, without any foundation is the attempt to draw support from the judgment reported in (2003) 2 SCC 107 (supra). The Court has only held that in an appropriate case in spite of the availability of alternative remedy, the Court may still exercise the writ jurisdiction at least in three contingencies (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Even going by this judgment, we see no occasion for the appellant to draw any support from this judgment. 11. Even going by this judgment, we see no occasion for the appellant to draw any support from this judgment. 11. As we have noted this is not a case of existence of an alternative remedy but rather the proceedings of writ court would be barred due to exhaustion of settled arbitration proceedings. This is for the reason that we cannot be asked in this writ petition to reopen matters, which were subject matter of the proceedings before the Additional District Judge in execution of Arbitral Award and which stood confirmed by the order of the learned Single Judge in the Revision. We have no hesitation in saying that this appeal is totally without any merit and it is to be dismissed. Though we did toy with the idea of imposing cost, we restrain ourselves. 12. Accordingly, the appeal fails and is hereby dismissed. No order as to costs.