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Madhya Pradesh High Court · body

2025 DIGILAW 675 (MP)

Managing Director v. Vatsala Mishra

2025-12-08

VIVEK JAIN

body2025
ORDER 1. Heard on I.A. No.20258/2024, which is an application for condonation of delay of 52 days in filing the present civil revision. 2. It is contended in the application that the present petitioner is a public sector undertaking of the State Government and the impugned order was passed on 22.4.2024. The record was sent in the month of May, 2024 to Bhopal where after due administrative consideration, opinion was given in the month of June, 2024 to file the present revision. Thereafter, the documents were handed over to the counsel at Jabalpur after obtaining sanction from the office at Bhopal. The delay is, therefore, caused in administrative procedural formalities and on these assertions it is prayed to condone the delay of 52 day. 3. The application for condonation of delay is vehemently opposed by learned counsel for the respondent. However, looking to the assertions made in the application and further looking to the fact that the petitioners are a Public Sector Undertaking having impersonal machinery for decision making and the decision to make challenge to an order depends on opinion of the counsel and then, taking number of sanctions and permissions and the matter arises from Jabalpur, whereas permission was taken from Bhopal, hence, the delay deserves to be condoned. In State of Nagaland v. Lipak Ao, reported in 2005 (3) SCC 752 , it has been held by the Hon'ble Supreme Court that in case of impersonal machinery of Public Sector institutions and government institutions, delay has to be considered with some lenient pragmatic approach. Therefore, in view of the totality of circumstances, this Court is inclined to condone the delay. 4. Resultantly, I.A. No.20258/2024 is allowed and the delay of 52 days in filing the revision is condoned. 5. Considered merits of the case. 6. Counsel for the respondent had raised a preliminary objection that revision against the order passed by Executing Court is not maintainable, because the order is purely interlocutory in nature. However, it was argued by learned counsel for the petitioner judgment debtor that if the objection had been sustained by the Executing Court and order had been passed in favour of the present petitioner, then the execution proceedings would have been concluded and closed. 7. However, it was argued by learned counsel for the petitioner judgment debtor that if the objection had been sustained by the Executing Court and order had been passed in favour of the present petitioner, then the execution proceedings would have been concluded and closed. 7. Considering the aforesaid position, which is undisputed, that if the order had been passed in favour of the present petitioner, then the execution proceedings would have been closed and concluded, the present Revision is held to be maintainable and is thus considered on merits. 8. The necessary facts for disposal of present revision are that an agreement was executed between the petitioners on one side and the respondent on the other side. The petitioners are M.P. Warehousing and Logistics Corporation and the respondent is the proprietor of a private warehouse. There was an arrangement between the two parties that due to shortage of warehousing capacity with the Corporation, the goods being received by the Corporation would be stored in private warehouses on rentsharing basis. In this manner, some of the wheat procured by the State Government and given over to the petitioner Corporation for storage in warehouse was handed over to the respondent for the purpose of storage in her warehouse, which was a private warehouse on profit-sharing basis, i.e. on basis of sharing of rent, which was to be received from the State Government. 9. There was an allegation that some of the wheat got stolen from the warehouse of the respondent and in this connection, a criminal case was registered against the employees of the respondent, who is the proprietor of the private warehouse. The petitioners withheld that part of rent, which was to be shared with the respondent, which was the value of wheat, which had been stolen from the warehouse of the respondent. 10. The matter was then sent for arbitration and the sole arbitrator passed his award, which is placed on record as Annexure A-2, dated 9.9.2020. 11. The arbitrator in the award Annexure A-2 held that the rent of the warehouse is property right of the claimant and cannot be withheld without recourse to law and secondly, that the Corporation cannot be judge of its own cause and there is no material available on record to hold the present respondent/private warehouse guilty of breach of contract. 11. The arbitrator in the award Annexure A-2 held that the rent of the warehouse is property right of the claimant and cannot be withheld without recourse to law and secondly, that the Corporation cannot be judge of its own cause and there is no material available on record to hold the present respondent/private warehouse guilty of breach of contract. The arbitrator decided dispute in favour of the respondent/private warehouse, but in paragraph 9.7, gave liberty to the petitioners that an enquiry in the matter can still be conducted by the Corporation by affording opportunity of hearing to the present respondent and in case the respondent/proprietor of private warehouse is found guilty in the enquiry, then the amount of award which would be paid to the respondent upon furnishing undertaking, shall be recoverable as per undertaking. 12. The relevant liberty was granted in paragraph 9.7, though in the relief paragraph, the arbitrator granted the requisite relief. The relevant paragraphs of the award are as under:- "9.7 Though the finding as recorded herein above are based on the terms and conditions of the joint venture agreement and the provisions of the Act, however it would be appropriate to observe that in absence of any specific provision for recovery of loss caused to the Respondents, an enquiry by affording full opportunity of hearing to the Claimant can still be conducted by the Respondents and if proved recovery of loss can be made from the Claimant. It would be further appropriate to observe that the undertaking given by the Claimant in these proceedings would become operative in such circumstances, and the Claimant would be liable to fulfill such undertaking to refund the amount received from the Respondents towards the rent of the warehouse in question. It is clarified that the amount of recovery if found more than the amount of rent of warehouse paid to the Claimant, the Respondents would be at liberty to recover the balance amount through the process of law. 11.1 The Respondent will pay Rs13,92,588/= , which is the amount of rent of the warehouse on the agreed rate for the disputed period, to the Claimant, on furnishing a solvent security by the Claimant as provided if Order 41 rule 5 CPC, within a month from the date of Award. No interest on the said amount would be payable incase amount is paid within the aforesaid period. No interest on the said amount would be payable incase amount is paid within the aforesaid period. However, in case of default the due amount will carry an interest at the rate of 8% per annum from the date the amount become due till the date of realization. 11.2 The undertaking of the Claimant would be specific, declaring that in the event of being held guilty in prosecution or in enquiry as suggested hereinabove to be conducted by the Respondents, the amount of rent would be refunded to the Respondents." 13. Admittedly, the said award has not been challenged by either of the parties. Therefore, though there is award in favour of the present respondent, but at the same time, there is a liberty granted to the present petitioners to carry out enquiry and if the respondent is found to be having liability in the matter, then to recover the awarded amount. 14. Before the awarded amount could be paid by the petitioners, they had conducted and concluded an enquiry and a consequential order A-3 has been passed on 13.1.2021 in which the husband of the present respondent duly appeared before the Managing Director of the Corporation and he was heard at length. It was held that there was loss of wheat in the warehouse of the respondent and in this manner, an amount of Rs.13,92,588/- is recoverable from the respondent and is adjusted against the rent share payable to the respondent. This order dated 13.1.2021 (Annexure A-3) has not been put to challenge by the present respondent till date. This order has been passed as per liberty granted by the arbitrator, and this order imposes a liability of Rs.13,92,588/- on the respondent. 15. In view of such development, the present respondents had submitted objections before the Executing Court. However, the Executing Court has rejected the objections on the ground that the Executing Court is only concerned with execution of the award. 16. In the considered opinion of this Court, the order Annexure A-1 dated 22.4.2024 passed by the Executing Court cannot be sustained, because the present petitioners have already conducted enquiry in terms of liberty granted by the arbitrator and therefore, the awarded amount no longer remains recoverable from the present petitioners. 17. Consequently, the impugned order dated 22.4.2024 deserves to be and is hereby set-aside. The execution proceedings are closed. 18. 17. Consequently, the impugned order dated 22.4.2024 deserves to be and is hereby set-aside. The execution proceedings are closed. 18. Liberty is granted to the present respondent to challenge the order dated 13.1.2021 passed by the petitioners in accordance with law and if the said order is set-aside, then to re-initiate the execution/recovery proceedings. 19. With the aforesaid directions, the revision is allowed.