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2018 DIGILAW 906 (KAR)

Preethi Shenoy W/O Mr. Laxman Shenoy v. Liju Issac S/o V. I. Abraham

2018-08-16

DINESH MAHESHWARI

body2018
ORDER : 1. Having heard learned counsel for the petitioner (Judgment Debtor) and having perused the material placed on record, this Court is unable to find any reason to consider interference in the Execution Proceedings against the petitioner or to grant any further indulgence to the petitioner. 2. The relevant background aspects of the matter are that the petitioner and the respondent entered into an agreement, whereby the respondent was to carry out the work of construction of residential apartments. In view of nonpayment even for the initial work, the respondent raised a dispute that was ultimately referred to the Sole Arbitrator in Arbitration Case No. 1 of 2016. 3. On 22.09.2016, the Sole Arbitrator made an award holding the petitioner liable to make payment in the sum of Rs.2,00,38,847/-together with costs of proceedings, quantified at Rs. 4,65,320/-. The petitioner questioned the arbitral award by way of an Application under Section 34 of the Arbitration and Conciliation Act, 1996, that was registered in the Court of I Additional District Judge, D.K., Mangaluru as Arbitration Suit No. 68 of 2016. 4. It appears that the parties later on entered into a compromise on 22.10.2016, whereby it was agreed that the petitioner would pay a sum of Rs. 1,75,00,000/- within a period of three months and in the event of default, the respondent would be entitled to enforce the award as such. The learned I Additional District Judge, D.K., Mangaluru, accordingly, disposed of the Arbitration Suit in terms of the compromise entered into between the parties. 5. The petitioner having failed to discharge all her obligations in terms of the compromise decree dated 22.10.2016, and having failed to make the requisite payments, the decree holder (respondent herein) levied execution, that has been registered as Execution Case No. 115 of 2017 in the Court of I Additional District Judge, D.K., Mangaluru. 6. The petitioner submitted in the execution proceedings that she had made payment in a sum of Rs. 55,00,000/- to the decree holder and would undertake to pay the remaining amount, but the execution was levied only to harass her and to demolish the proposed project; and she would be put to serious hardship in case any order of attachment was passed. 7. 55,00,000/- to the decree holder and would undertake to pay the remaining amount, but the execution was levied only to harass her and to demolish the proposed project; and she would be put to serious hardship in case any order of attachment was passed. 7. On perusal of the order sheet in the execution case, it is made out that on various dates of hearing, the petitioner made part payments against the decree in question and such payments were accepted by the decree holder. However, on 06.02.2018 and 14.02.2018, the Executing Court adjourned the matter while granting time to the petitioner to make substantial payment towards the outstanding. Thereafter, on 21.02.2018, the Executing Court noticed that in spite of specific directions, the judgment debtor had failed to make substantial payment and considering the huge amount of outstanding and non-compliance of the orders dated 06.2.2018 and 14.02.2018, it was proper to issue the attachment warrant. The order so passed by the Executing Court is sought to be questioned in this writ petition with reference to certain part payments made by the petitioner. 8. Learned counsel for the petitioner submits that the petitioner has made payment to the extent of about Rs. 72,00,000/-and would make payment on being granted some breathing time; and that the petitioner is ready to make some more part payment immediately. 9. On a perusal of the record, it is clear that even in relation to the award made way back on 22.09.2016, whereby the petitioner was required to make payment of more than Rs. 2 Crores, the parties settled the matter in Arbitration Suit No.68 of 2016 by way of compromise that the petitioner would make payment in a sum of Rs.1,75,00,000/-within a period of three months from 22.10.2016. The petitioner, admittedly, failed to do so and hence, the respondent has levied the execution. 10. Nearly one year and ten months after the passing of compromise decree, the petitioner has not been able to make substantial payment against the decree in question. It appears from the record that the Executing Court had extended sufficient indulgence to the petitioner ever since 08.11.2017 to come out with substantial payment and ultimately, ordered issuance of attachment warrant in the month of February, 2018 when the petitioner failed to come out with substantial payment. 11. It appears from the record that the Executing Court had extended sufficient indulgence to the petitioner ever since 08.11.2017 to come out with substantial payment and ultimately, ordered issuance of attachment warrant in the month of February, 2018 when the petitioner failed to come out with substantial payment. 11. In the totality of facts and circumstances, when there is no jurisdictional error in the order impugned and the petitioner has not been able to make out any equitable ground either, no further indulgence could be granted in the matter. The petition stands dismissed. No costs.