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2019 DIGILAW 671 (CAL)

Bikash Mukherjee v. Utpal Kumar Dutta

2019-06-26

SABYASACHI BHATTACHARYYA

body2019
JUDGMENT : 1. The judgment debtor in a proceeding before an Arbitrator under the West Bengal Co-operative Societies Act, 2006, has preferred the instant application under Article 227 of the Constitution of India. A proceeding was initiated by the decree holder/opposite party against the petitioner and a co-operative society, seeking the following reliefs: "(a) to declare the transfer of the flat of the plaintiff being flat No. 2 on the ground floor at the premises No. HB-327, Salt Lake City, Sector-III, Kolkata - 106, alongwith two shares of defendant No.1, by Defendant No.1 in favour of Defendant No. 2, illegal, without authority and malafide. (b) to set aside the said transfer of flat of the Plaintiff being flat No. 2 on the ground floor at premises No. HB-327, Sector-III, Salt Lake City, Kolkata - 106 along with two shares of the Plaintiff in the Defendant No. 1 by Defendant No. 1 in favour of Defendant No. 2. (c) to direct the Defendant No. 2 to vacate the said flat No. 2 on the ground floor at premises No. HB-327, Sector-III, Salt Lake City and make over vacant possession of the same to the Plaintiff, alternatively, to direct the defendants to pay compensation of Rs. 20 lakhs calculated at the current market price of flat No. 2 on the ground floor at premises No. HB-327, Salt Lake City, Kolkata - 106 to the plaintiff. (d) to direct the Defendant to pay the cost of litigation to the plaintiff. " 2. The Arbitrator disposed of the said proceeding on contest, thereby passing a two-fold award. 3. First, the "so called transfer of membership, share and right, title, interest ....." over the disputed flat between the opposite party and the petitioner, was set aside. 4. Secondly, the defendant no. 2/judgment debtor/petitioner was also given the liberty to start a process of transfer de novo with the decree holder/opposite party and to pay to the opposite party the cost of the flat at the market value, to be determined as provided therein, at the time of execution of deed of re-allotment in favour of the petitioner in presence of the defendant no.1 (the co-operative society) as confirming party in terms of Section 87(1) of the WBCS Act, 1987, now Section 92(1) of the WBCS Act, 2006, within four weeks from the date of the award; otherwise the said flat "belongs to the plaintiff only". 5. Subsequently, the petitioner having not initiated any steps in terms of the liberty given in the award, the decree holder/opposite party levied execution, giving rise to Title Execution No. 02/BDN of 2018. 6. The judgment debtor/petitioner took out an application in the said execution case under Order XXI Rule 26, read with Section 151 of the Code of Civil Procedure and challenged the maintainability of the execution case. 7. Vide order dated April 26, 2019, the executing court dismissed such objection petition on contest. 8. It may be relevant to note that, meanwhile, the petitioner filed a writ petition, bearing W.P. No. 31464(W) of 2013 challenging the arbitral award dated July 12, 2013. The said writ petition was dismissed, on which the petitioner preferred an intra-court appeal, bearing MAT No. 253 of 2019. 9. The present revision has been preferred against the dismissal of the petitioner's objection to the maintainability of the execution case. 10. Learned counsel for the petitioner argues that the execution case sought to achieve a relief which was not granted by the award itself. By meticulously placing the award, learned counsel points out that no award for eviction or payment of cost of flat was granted in the award. However, the tabular statement filed before execution court reveals that the prayer made therein was for a direction to make payment of the cost of the disputed flat as per the market value or to vacate the same "as the transfer has been set aside" by the Arbitrator. 11. A general execution application was also filed, purportedly under Order XXI Rule 11 of the Code and under Section 105 of the 2006 Act, read with Rule 174 of the West Bengal Cooperative Societies Rules, 2011, praying for execution of the award. 12. However, the award contemplated merely setting aside of the transfer of membership and gave a liberty to the petitioner to start the process of transfer de novo with the opposite party and to pay to the plaintiff the cost of the flat at the market value assessed. Although it was observed that otherwise the said flat belonged to the plaintiff only (that is, the present opposite party), no order of eviction or compensation was passed, although both were alternatively prayed for in relief (c) sought by the opposite party before the Arbitrator. 13. Although it was observed that otherwise the said flat belonged to the plaintiff only (that is, the present opposite party), no order of eviction or compensation was passed, although both were alternatively prayed for in relief (c) sought by the opposite party before the Arbitrator. 13. Since the setting aside of the sale and even the observation that "otherwise" the flat belongs to the opposite party were both toothless in the absence of the further reliefs of eviction or compensation, no execution lay to implement the said award. 14. The relief of eviction, specifically sought by the opposite party, therefore, must be deemed to have been refused. 15. Even the "liberty" to start process of transfer de novo was merely an option given to the petitioner, which the petitioner chose not to exercise; as such, the execution case was misconceived. 16. It is further argued that Order XXI Rule 35(1) of the Code of Civil Procedure contemplated possession being taken, only in case of an eviction decree. As such, the court did not have the power to direct eviction in the absence of a decree/award to that effect. 17. Learned counsel for the decree holder/opposite party argues that the award for restoration of possession was an automatic effect of the decree setting aside the previous transfer and observation that, in the event the petitioner chose not to initiate any transfer de novo, the flat belonged to the opposite party, were sufficient to indicate that the award of eviction was in-built in the award. It is obvious from the discussions made in the award and the ordering portion thereof, that an award of eviction was a necessary corollary of the Arbitrator's award. 18. That apart, the opposite party submits, an alternative prayer for money was also made in relief (c). Since the Arbitrator directed a transfer de novo to be initiated and also directed the judgment debtor to pay to the plaintiff the cost of the flat, the award was executable at least in so far as the alternative prayer of payment of cost of the flat was concerned. 19. That apart, it is argued on behalf of the opposite party that the application, for rejecting the execution petition as not maintainable, was premature. The objections raised by the petitioner could at best be decided at the disposal of the execution case and not as a preliminary maintainability issue. 20. 19. That apart, it is argued on behalf of the opposite party that the application, for rejecting the execution petition as not maintainable, was premature. The objections raised by the petitioner could at best be decided at the disposal of the execution case and not as a preliminary maintainability issue. 20. Learned counsel for the opposite party cites a judgment reported at AIR 1972 SC 1371 [Bhavan Vaja and others vs. Solanki Hanuji Khodaji Mansang and another]. Placing particular reliance on paragraph no. 19 of the said decision, learned counsel submits that the executing court has the power to consider the pleadings and proceedings leading up -to the decree to ascertain the true effect of a decree. 21. As such, it is argued that the executing court had the power to construe the true effect of the award, despite the settled principle that it could not go behind the decree. 22. In reply, learned counsel for the petitioner added that the objection to execution could not be said to be premature, since a writ of possession had already been issued by the executing court, which is evident from the impugned order itself. As such, the execution case is on the verge of attaining culmination and the argument, that the objection was premature, was unacceptable. 23. A perusal of the reliefs claimed in the proceeding show that, apart from setting aside the transfer-in-question and costs of litigation, the primarily relief sought by the opposite party was for a direction upon the petitioner to vacate the disputed flat, alternatively to direct the defendants to pay compensation of Rs.20 lakhs, calculated at the current market price of the flat to the plaintiff. This was embodied in relief (c) of the claim. 24. However, the Arbitrator consciously did not grant such relief, although passing an award in respect of setting aside the transfer. Instead, the Arbitrator consciously chose to mould the relief and grant a liberty to the petitioner to seek a transfer de novo, in default the flat would belong to the opposite party, which was a relief never prayed for by the opposite party. 25. Although the petitioner preferred a challenge to the award, the decree holder/opposite party did not challenge the said award in so far as it related to the deemed refusal of the reliefs of eviction and compensation at the current market price of the flat-in-question. 25. Although the petitioner preferred a challenge to the award, the decree holder/opposite party did not challenge the said award in so far as it related to the deemed refusal of the reliefs of eviction and compensation at the current market price of the flat-in-question. Hence, the opposite party permitted the award to attain finality as against itself. 26. A thorough examination of the award further reveals that there was not a single line of discussion as regards who was in possession of the disputed flat and that the Arbitrator intended to grant eviction in any form. This further enforces the view that the Arbitrator consciously abstained from granting the relief of eviction, alternatively compensation at the market rate. 27. In the aforesaid backdrop, if we look at the prayers made before the executing court, which comprised a direction upon the judgment debtor to make the payment for the "cost of flat as per market value" or "to vacate the flat", both attempt to broaden the horizon of the award, which the executing court was not permitted to do since either of the two would take the executing court behind the decree; particularly in view of the deemed refusal of such prayers by the Arbitrator. 28. As far as eviction is concerned, there is no doubt from a plain reading of the award that the same was never granted, which went unchallenged by the decree holder. Even as regards the cost of the flat, the argument, that the same was granted by the Arbitrator, is misplaced. 29. A minute examination of the second relief granted by the Arbitrator shows that only a "liberty", that is, an option, was given to the judgment debtor to start a process of transfer de novo. The payment to the opposite party of the cost of the flat, directed by the Arbitrator, was a mere consequence of such fresh transfer, if opted for at all by the judgment debtor, which is evident from the language of the second relief. However, there was no scope for payment of such amount in the event the judgment debtor chose not to initiate the process of such transfer de novo. 30. However, there was no scope for payment of such amount in the event the judgment debtor chose not to initiate the process of such transfer de novo. 30. A scrutiny of the relief (c) shows that the costs of the flat were sought only therein by the decree holder, in the form of compensation (quantified arbitrarily at Rs.20 lakhs) calculated at the current market price of the flat, which is precisely what has been sought as the primary prayer in the execution case. Since such relief was refused by the Arbitrator, the opposite party cannot now claim the same indirectly, since it could not be claimed directly now. 31. In the absence of any challenge to the award at the instance of the decree holder/opposite party, such lacunae cannot be patched up by introducing prayers by way of execution, which were not granted in the award itself. 32. As far as the judgment cited by the opposite party is concerned, there is no quarrel with the proposition laid down therein. However, even if the true effect of the award is taken into account, as done in the above discussion, it would show that the reliefs of eviction, alternatively compensation at the rate of the market value of the flat must be deemed to have been refused by the Arbitrator and there is no scope, as such, of getting such relief in execution. 33. As regards the argument of the opposite party that the objection to the execution case was premature, the said logic is not strong enough to compel the judgment debtor/petitioner to go on contesting a harassive proceeding, which is not maintainable on the face of it. 34. Despite sympathies naturally extending to the decree holder for having obtained a toothless award in so far as the eviction of the judgment debtor and/or compensation is concerned, it cannot be labelled as an 'undue advantage' derived by the petitioner from the award, since the decree holder/opposite party chose not to challenge the deemed refusal of eviction and compensation by the Arbitrator and can have only itself to blame for its predicament. 35. The best possible perspective for the decree holder in the otherwise bleak scenario would be that the award incorporated a rider that if the petitioner chose not to initiate fresh transfer proceedings, the flat belonged to the opposite party. 36. 35. The best possible perspective for the decree holder in the otherwise bleak scenario would be that the award incorporated a rider that if the petitioner chose not to initiate fresh transfer proceedings, the flat belonged to the opposite party. 36. However, a declaration that the flat belongs to the opposite party, by itself, does not justify throwing out the petitioner from the said flat in the absence of an award to that effect by a competent forum. 37. It can at best be observed in support of the opposite party that the opposite party was ill-advised in not challenging the award but proceeding on a notion that the award was sufficient for getting an eviction, alternatively the costs of the flat, from the petitioner, which perhaps comprised of a bona fide error on the part of the opposite party, who is, on the face of the records, a layman in law. However, since as of today there is no challenge on the part of the opposite party to the portion of the award dismissing in effect the reliefs of eviction and compensation, the executing court would exceed its jurisdiction in granting such relief, going beyond the award. 38. In observing as above, this court is not unmindful of the probable argument, that the opposite party could take up a contention, in the nature of a cross-objection, to the deemed refusal of the eviction, alternatively compensation, in the challenge initiated by the petitioner. However, since such deemed refusal comprised of turning down reliefs claimed by the opposite party, such refusal tantamounts to an award (dismissing the said reliefs) in its own right and not mere findings, which would be subject to a cross-objection and would not require an independent challenge. 39. In such view of the matter, without a challenge to the award on the part of the opposite party, the executing court acted without jurisdiction in turning down the prayer of the judgment debtor/petitioner for rejection of the execution case. 40. About the ratio in the impugned order, that Section 47 of the Code of Civil Procedure had to be specifically quoted, the less said the better, since it is well-settled that the caption of an application was immaterial in granting relief, if the court otherwise had the power to grant the substantive relief prayed in such application. 41. 40. About the ratio in the impugned order, that Section 47 of the Code of Civil Procedure had to be specifically quoted, the less said the better, since it is well-settled that the caption of an application was immaterial in granting relief, if the court otherwise had the power to grant the substantive relief prayed in such application. 41. In such view of the matter, the impugned order, being without jurisdiction, cannot be sustained. 42. Accordingly, C.O. No. 1514 of 2019 is allowed on contest, thereby setting aside the impugned order and dismissing the Title Execution Case No. 02/BDN of 2018, pending before the Civil Judge (Junior Division) at Biddhannagar, District: North 24 Parganas. However, nothing observed herein will prevent the petitioner from preferring an appropriate challenge to the portion of the award which went to the detriment of the opposite party, subject to considerations of equity and limitation by the forum before which the opposite party prefers such a challenge, if at all. The observation made herein will also not preclude the opposite party from taking out fresh proceedings, if otherwise maintainable in law, for further reliefs in consonance with and in terms of the award passed by the Arbitrator under the West Bengal Co-operative Societies Act, 2006. 43. There will be no order as to costs. 44. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.