GA No.1025 of 2016 EC No.259 of 2015 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE L & T FINANCE LTD.-VersusM/S.DURGA TRAVELS & ANR.
Appearance: Mr.Kaushik Chatterjee, Adv Ms.S.Saha, Adv...for the decree-holder.
Mr.Nishit Adhikary, Adv.Mr.J.Adhikary, Adv.Mr.T.Dhali, Adv...for the judgment-debtORS.BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 14th June, 2016.
The Court : A person who has not come to the court with clean hands should not deserve any sympathy and mercy.
Apart from the same, sympathy and mercy has no role to play in dispensation of justice.
The law, if it operates harshly upon the litigant, it is to be so accepted and cannot be melted down because the litigant is a septuagenarian or octogenarian.
An agreement was entered into between the judgmentdebtors and the decree-holder containing an arbitration clause.
A dispute was raised and the parties invoked the arbitration clause by appointing the arbitrator.
Admittedly, the arbitrator made and published the award and served the challenged Arbitration same the and to the said parties.
award The under Conciliation emerge successful therefrom.
Act, judgment-debtor Section 1996, 34 but of the could not I am told that the intra- Court appeal against the said order was also dismissed.
Mr.Adhikari, learned Advocate appearing for the judgment-debtor submits that a Special Leave Petition (SLP) is pending before the Supreme Court.
The fact remains that there is no order passed by a competent Court which may stand in the way of proceeding with the execution case.
The notices were served upon the judgment-debtors who was further directed to disclose affidavit of assets in the prescribed form.
Two affidavits of assets are filed by the same person during the period of one year wherein one could not be reconciled with another.
The fact was duly recorded on 22nd April, 2016 and the judgment-debtors were given an opportunity to make their submissions whether the Court should direct the initiation of the proceedings against the deponents for making false statements on oath before the Court.
filed.
An explanation in the form of an affidavit is On perusal of the statements made therein even a layman can have an impression that the contents of both the affidavits of assets do not tally with each other and there has been a conscious suppression of the property held by them in a subsequent affidavit of assets.
The subsequent affidavit of assets discloses several bank accounts containing a marginal money which does not befit a person who holds the assets as disclosed in the fiRs.affidavit of assets.
The movable affidavit of assets disclosures of two property is a flats shown land in conspicuously absent therein.
the in at the Siliguri fiRs.subsequent and affidavit the is There is no hesitation in my mind that this judgment is trying to extract the mercy and leniency of the court by citing his age and is also abusing and misusing the provision of law to its greatest extent.
Mr.Adhikari, learned Advocate representing the aforesaid judgments submits on the last occasion that there is a talk of settlement going on between the parties and secure an adjournment even when the Advocate-on-record of the decree-holder denied and disputed such submission.
Today the learned Advocate for the decree-holder categorically submits that there was no talk of settlement either commenced or were in progress till the last occasion when the matter was taken up by this Court and it is only after the matter was adjourned, an e-mail was received where the judgment-debtor No.2 showed his intention to sit with the high settlement.
officials of the decree-holder for It is submitted by the decree-holder that the said e-mail has been immediately replied indicating that the decree-holders are not aveRs.to meet the judgementdebtor for any possible settlement but such reply should not be used and utilised as a tool for getting adjournment again.
Mr.Adhikari was again misled by his client as the reply was not intimated to him but what has been forwarded is the e-mail subsequently written by the judgement-debtor signifying his intention to sit for settlement.
As a natural corollary Mr.Adhikari prays for an adjournment as the parties are exploring the possibility of settlement and the meeting has been fixed on 16th June, 2016 at the head office of appraised the of decree-holder.
the reply The given by moment the Mr.Adhikari is decree-holder, he submits that some leniency should be shown in providing the installments by which the entire decretal amount can be liquidated reminds me and/or the paid well off known by the judgement-debtor.
principles applicable to It the executing Court that it cannot go behind the decree.
The executing Court exercises its jurisdiction within the circumference and/or periphery of the decree and cannot rewrite the decree or make any modification in the decree.
The executing Court can interpret the decree in case of ambiguity which cannot be used for the purpose of making afresh decree when the litigation has come to an end.
Section 36 of the Arbitration and Conciliation Act is clear and express in the sense that the award passed under the said Act is enforceable as a decree under the Code of Civil Procedure.
Therefore, the award partakes the characteristic of a decree for the purpose of its enforceability under the Code of Civil Procedure approached for such and the moment enforceability, it the Court is exercises the jurisdiction and powers as of the executing Court and not as a Court of appeal.
The conduct of the judgement-debtors in the instant proceeding is reprimandable and deplorable and therefore, no discretion should be exercised by the Court either in granting the adjournments or passing any directions which would amount to delaying the execution proceedings.
There is no hesitation in my mind that the judgement-debtors are interested in delaying and/or avoiding the payment under the decree and the apprehension is more strong disclosing when different two affidavits properties.
of This assets Court, are filed therefore, feels that it is a fit case where a receiver should be appointed to take all movable assets as described in both the affidavits of assets and shall take possession thereof.
Mr.Sreemanta Sadhukhan, a practicing advocate of this Court having mobile no.: 8697284345 is appointed as receiver to take possession of all movable assets disclosed in both the affidavits of assets filed by the judgement debtor Nos.1 and 2 and shall keep the same in his custody.
In the event, any resistance is caused, to the receiver in taking possession of those movable assets, he is at liberty to approach station the for high official assistance.
If of such the concerned approach is police made, the concerned officers shall render all assistance and help to the receiver in carrying out the directions passed hereinabove.
The remuneration of the receiver is assessed at 1000Gms to be paid by the decree-holder.
Let this matter appear after three weeks when this Court will consider whether criminal law should activated against the judgement-debtor no.2.
(HARISH TANDON, J.) A/s./dg2 be