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Rajasthan High Court · body

2022 DIGILAW 2545 (RAJ)

Krishnavatar Sharma v. Mentor India Ltd.

2022-09-30

ASHOK KUMAR GAUR

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner (i) challenging the order dated 11.03.2019, rejecting his application for setting aside order dated 28.11.2018 (ii) the order dated 11.03.2019 passed by the Executing Court i.e. Additional District Judge No.4, Jaipur Metropolitan, Jaipur for recovery of the award amount and (iii) to restore Arbitration Application No.302/2018 pending in the Commercial Court No.3, Jaipur Metropolitan, Jaipur. 2. Learned counsel for the petitioner submitted that the petitioner feeling aggrieved against the award dated 13.10.2009, filed his objections under Section 34(2) of the Arbitration and Conciliation Act, 1996 (hereinafter 'the Act of 1996') before the Court of Additional District Judge, Jaipur and on transfer of the case to the Commercial Court No.3, Jaipur, the same was pending for considering the objections. 3. Learned counsel for the petitioner submitted that unfortunately on 28.11.2018, no counsel was present before the Commercial Court No.3 and the Court on the basis of previous order sheets, showing the application of the petitioner to be dismissed in default on 06.04.2010, 15.03.2011 and 14.07.2017, dismissed the objections of the petitioner on 28.11.2018 ex-parte. 4. Learned counsel submitted that on dismissal of objections of the petitioner, the Executing Court also on the same day i.e. 11.03.2019 passed an order exercising its power under Order 21 Rule 37 CPC and later on, on 17.07.2019, the Executing Court directed the petitioner to be sent to civil imprisonment for not complying with the award passed in favour of the respondent. 5. Learned counsel submitted that petitioner immediately had filed an application for restoration of his objections before the Commercial Court and prayed for setting aside the order dismissing the matter in default, however, by the impugned order dated 11.03.2019, the said application of the petitioner has also been dismissed and objections of the petitioner filed under Section 34(2) of the Act of 1996, were not considered on merits. 6. Learned counsel submitted that due explanation was furnished in the application filed for restoration of objections, however, the Court below has wrongly rejected the said application. 7. Learned counsel submitted that the Executing Court also proceeded in a hasty manner and passed an extreme order of sending the petitioner to civil imprisonment. 8. 6. Learned counsel submitted that due explanation was furnished in the application filed for restoration of objections, however, the Court below has wrongly rejected the said application. 7. Learned counsel submitted that the Executing Court also proceeded in a hasty manner and passed an extreme order of sending the petitioner to civil imprisonment. 8. Learned counsel submitted that due opportunity may be afforded to the petitioner to make submissions on his objections, which are pending before the Commercial Court and this Court in the interest of justice, may grant one more opportunity to the petitioner and if required, the petitioner would pay adequate cost to the respondent. 9. Learned counsel for the respondent Mr.L.L. Gupta has opposed the prayer sought by the petitioner. Learned counsel for the respondent submitted that this is a second round of litigation, as the petitioner had earlier filed S.B. Civil Writ Petition No.10292/2019 challenging the same order by which application filed for restoration of his objections, was dismissed. 10. Learned counsel submitted that this Court on 21.08.2019 had permitted the petitioner to withdraw the writ petition with liberty to take appropriate remedy against the order passed by the Commercial Court (wrongly mentioned as 'Additional District Judge No.4, Jaipur Metropolitan' in the said order) and the petitioner has not filed appropriate legal proceedings challenging the order and as such, he should not be permitted to agitate the matter again. 11. Learned counsel for the respondent, on merits, submitted that the petitioner is a rank defaulter in attending the Court and as such, before transfer of his case to the Commercial Court, objections of the petitioner were not persuaded by him in a proper manner and as such, on earlier three occasions, the case was dismissed in default against the petitioner and after transfer of the case from the Court of Additional District Judge to the Commercial Court, the petitioner has again followed the same pattern of not attending the Court and as such, the Court was left with no other option except to dismiss the matter in default. 12. 12. Learned counsel for the respondent submitted that the Executing Court has not committed any illegality in exercising its power, as award passed against the petitioner is required to be executed like a decree and the Court when found that objections filed by the petitioner have been dismissed, the only option was to pass an order for executing the award and if the petitioner was ordered to be sent to civil imprisonment, no fault can be found with such an order. 13. I have heard learned counsel for the parties and perused the material available on record. There is no dispute on the issue that any litigant, who is a party before the Court of law, has to attend the Court proceedings in a proper and bonafide manner. There is also not a dispute on the issue that Lawyer who is engaged by a party/litigant has to present himself, as and when, the case is listed before the Court. 14. This Court, in the present facts of the case, finds that the petitioner has not been vigilant in pursuing his remedy in a proper manner and accordingly, case was dismissed in default against him on earlier three occasions by the ADJ Court and after transfer of his case to the Commercial Court, the petitioner was again not vigilant and his counsel was also not present on the day, when the case was called i.e. on 28.11.2018. 15. This Court finds that the Court below, while considering the restoration application filed by the petitioner, has not committed any legal error and after considering the conduct of the petitioner, the Court below was constrained to dismiss the application filed for restoration of objection. 16. This Court, however, finds that if the matter can be revived before the Commercial Court and the objections can be decided on merits and as such, one more opportunity may be granted to the petitioner in the interest of justice. 17. This Court finds that the petitioner would be required to pay a sum of Rs.1,00,000/- (in words Rupees One Lakh) to the respondent towards cost, before the Commercial Court, within a period of two weeks. 18. On payment of such cost, the Commercial Court would revive the objections of the petitioner and permit the petitioner to argue the matter on merits by giving next date. 19. 18. On payment of such cost, the Commercial Court would revive the objections of the petitioner and permit the petitioner to argue the matter on merits by giving next date. 19. This Court also makes it clear that no further unnecessary adjournment will be granted to the petitioner, while arguing the matter before the Commercial Court. This Court accordingly sets aside the impugned order dated 11.03.2019 passed by the Commercial Court and further also sets aside the order dated 17.07.2019 of Executing Court for sending the petitioner to civil imprisonment. 20. This Court accordingly disposes of the present writ petition in above terms.