M/S Kohinoor Transporters v. State of Uttar Pradesh
DR. D. Y. CHANDRACHUD, J. 1. An arbitral proceeding took
place between the appellant and the respondent under the Arbitrat ion
Act 1940. The disputes originated in a contract of 1980 for certain civil
works and eventually resulted in an arbitral award dated 20 July 1984.
The award was made a Rule of the Court on 30 August 1986 by the
Civil Judge, Dehradun. The award has attained finality after the High
Court of Uttaranchal dismissed an appeal filed by th e State on 15
December 2006. The Civil Judge, it may be noted, reduced the rate of
interest from 12 per cent to 6 per cent.
2. The appellant filed an application for execution before the
Additional Civil Judge, Dehradun, being Execution Application 27/2010.
During the course of the execution proceedings, the respondent -state
deposited an amount of Rs 75,65,945 towards the decretal debt. In the
course of the execution proceedings the appellant and the sta te filed
their respective statements of calculation in regard to the amount due
under the decree of the Court. On 6 April 2015, the Executing
Courtdirected the respondent to deposit an amount o f
Rs 1,25,16,969.56 stating that it is‘admitted’. Notice was issued to the
respondent under Order XXI Rule 41 CPC to which it filed its objections.
On 16 August 2016, the Executing Court rejected the objections on the
ground that the amount of Rs 1.25 crores was admitted, as evident from
the earlier order dated 6 April 2015. A Civil Revision Application was
filed by the respondent against the order of the Executing court. During
the course of the execution proceedings an order was passed on 3 August
2017 directing the judgment debtor to comply with the earlier order of 6
April 2015, failing which, it was observed “they shall be deemed to be
penheld”. After this order of the Executing Court, a stay application was
moved in the revisional proceedings before the High Court by the State.
The High Court by its impugned order directed the appointment of a
Chartered Accountant in the following terms:
M/S KOHINOOR TRANSPORTERS v. STATE OF
UTTAR PRADESH
“..So, I think that notwithstanding the absence of any pray er
regarding the appointment of competent persons in this regar d,
the only recourse which may be helpful to the Court is to appoint
a Chartered Accountant in this matter who shall consider the
details of the arrears, as have been claimed by the decree holder,
and the details of accounts depicted in the departmental narrative
submitted by the judgment debtor.
Each party is directed to submit the names at least two chartered
accountants within two weeks.”
3. It is this order of the High Court which is challenged in the
present proceedings.
4. Notice was issued on 5 January 2018 and the interim order of
the High Court was stayed.
5. On behalf of the appellant it has been submitted that the High
Court was manifestly in error in directing the appointment of a Chartered
Accountant for three reasons:
Firstly, the High Court acted in excess of jurisdiction by directing
the appointment of a Chartered Accountant in a civil revision when under
Section 47 of the CPC all questions in regard to the execution discharge
or satisfaction of a decree have to be determined by the Executing Court;
Secondly, there was no challenge to either the order dated 6 April
2015 or the order dated 3 August 2017 of the Executing Court requiring
the respondent to deposit the ‘admitted’ dues of Rs 1.25 crores; and
Thirdly, the interim order of the High Court virtually amounts to
the grant of final relief while considering the stay application.
6. On the other hand, it has been submitted on behalf of the State
that the appellant is seeking to aggrandize itself by revising its decretal
claim. Whatever was due has been deposited and an a mount of
Rs.75,65,945 was deposited before the Executing Court as far back as
on 7 December 2012. It was urged that it is not open to the Executi ng
Court to go behind the decree.
7. Having heard the learned counsel, we are of the view that the
High Court has acted in manifest excess of its jurisdiction while directing
the appointment of a Chartered Accountant for the purpose of determining
as to whether the decretal debt is to be marked as satisfied. The execution
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proceeding is pending before the Additional Civil Judge, Dehradun and,
as we have noticed, various orders have been passed thereon from time
to time. The issue as to whether the decree has been disc harged or
satisfied has to be determined by the Executing Court under Section 47
of the CPC. The Executing Court must execute the decree as it stands
without adding anything to it.In the counter affidavit which has b een
filed on behalf of the respondent, the contention of the appellant t hat
there was an admission in regard to the balance of Rs 1.25 c rores is
sought to be controverted.But that is a matter which need not detain this
Court. All these are matters which must properly be add ressed in the
course of the execution proceedings. The High Court, in our view, has
acted in excess of jurisdiction by directing the appointment of a Chartered
Accountant, particularly at this stage.
8. We, accordingly, allow the appeal and set aside the impugned
order of the High Court dated 18 September 2017.Having regard to the
fact that the dispute between the parties arises out of a contract of 1980
and an award of 1984 which is still being executed,we request the High
Court to dispose of the Civil Revision 147/2016 expeditiously, but in any
event within a period of three months from the date on which a certified
copy of this order is placed on its record. The Civil Appeal is, accordingly,
disposed of. There shall be no order as to costs.
Devika Gujral Appeal disposed of.
M/S KOHINOOR TRANSPORTERS v. STATE OF
UTTAR PRADESH [DR. D.Y. CHANDRACHUD, J.]