M/S Takamol Industries Pvt Ltd v. M/S Kundan Rice Mills Ltd

RAJIV SAHAI ENDLAW, J. JANUARY 03, 2017

"pp" (corrected & released on 11th January, 2017)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd January, 2017 + EX.P. No.422/2014 & EA No.793/2016 TAKAMOL INDUSTRIES PVT LTD ..... Decree Holder Through: Mr. Sanjeev Kumar Bhardwaj, Adv. Versus KUNDAN RICE MILLS LTD .... Judgement Debtor Through: Mr. Rajshekhar Rao, Mr. Prithu Garg, Mr. G.P. Tiwari & Mr. Sameer Dawar, Advs. AND +CS(COMM) No.1416/2016 & IA.No.15265/2016(u/O XXXIX Rule 1&2 KUNDAN RICE MILLS LTD ..... Plaintiff Through: Mr. Rajshekhar Rao, Mr. Prithu Garg, Mr. G.P. Tiwari & Mr. Sameer Dawar, Advs Versus TAKAMOL INDUSTRIES PVT LTD & ANR ..... Defendants Through: Mr. Sanjeev Kumar Bhardwaj, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Execution Petition No.422/2014 filed by Takamol Industries Pvt. Ltd. (TIPL) seeks execution as a decree of an Arbitral Award dated 2nd June, 2014 of one Shri Bhupinder Singh, S/o Sardar Gurcharan Singh (i) directing TIPL to return 72 Mts of rice to Kundan Rice Mills Ltd. (KRML); (ii) declaring that KRML does not have the right to receive any money from M/s. Ravinder Kumar Sumit Kumar or from Mr. Dev Kumar by way of Court/Legal or through Panchayat; (iii) declaring that any subsequent money received or to be received from M/s Ravinder Kumar Sumit Kumar or from Mr. Dev Kumar shall be received only by TIPL; (iv) directing KRML to co-operate in the proceedings against Mr. Dev Kumar; and, (v) directing that KRML shall not pursue the First Information Report (FIR) against any of the Directors of TIPL. 2. Notice of the Execution Petition was issued to KRML and vide order dated 3rd September, 2015 KRML was directed to file affidavit of assets under Order XXI Rule 41(2) of the Code of Civil Procedure, 1908 (CPC) and the record of the arbitral proceedings, award whereof was under execution, was requisitioned. Vide order dated 18th March, 2016, the Managing Director of KRML was directed to appear in person. 3. EA No.793/2016 filed by KRML under Order XXI Rule 29 CPC came up before this Court on 30th November, 2016 when the following order was passed:- "1. The judgment-debtor / applicant, invoking Order XXI Rule 29 of the CPC, seeks stay of execution of Arbitral Award as a decree. 2. The counsel for the judgment-debtor / applicant contends that the judgment-debtor / applicant has filed CS(COMM) No.1416/2016 in this Court impugning the Arbitral Award and of which summons have been issued for 7th February, 2017. 3. I have enquired from the counsel for the judgment-debtor / applicant as to how a suit impugning the Arbitral Award is maintainable. As far as I recollect, it is the settled position in law, as held by the Supreme Court and followed by this Court, that such suits are not maintainable. Merely because the judgment-debtor / applicant has filed such a suit and summons of which have been issued by the Joint Registrar would not entitle the judgment-debtor / applicant to have stay of execution. 4. The counsel for the judgment-debtor / applicant seeks time to satisfy that the suit as filed is maintainable. 5. List on 8th December, 2016. 6. On enquiry it is informed that the summons of CS(COMM) No.1416/2016 have been issued by the Joint Registrar attached to this Bench. 7. On the next date i.e. 8th December, 2016 as already scheduled, CS(COMM) No.1416/2016 be also listed before this Court and the judgment-debtor / applicant to on that date come prepared to address on the maintainability of that suit". 4. Thereafter on 8th December, 2016 KRML was heard and after partly hearing the counsel for TIPL the need for recording of statement on oath of Mr. Sanjay Kumar Vashisth, Director of TIPL was felt and his statement was so recorded. On the basis of the said statement it prima facie appeared that the document dated 2nd June, 2014 of which execution as an Arbitral Award is sought in Execution Petition No.422/2014 does not qualify as an Arbitral Award. On the stand of the counsel for TIPL that he was not prepared with the arguments on the aspect of, whether the document dated