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M/s. CHI Commodities Handlers Inc., rep. by its Authorised Signatory, S. Anilkumar v/s M/s. Mahavishnu Cashew Factory, rep. by its Proprietor S. Ranjith Lal

    OP(C).No. 1390 of 2013 (O)
    Decided On, 09 April 2013
    At, High Court of Kerala
    By, THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH
    For the Petitioner: T.R. Aswas. Advocate. For the Respondent: V. Philip Mathew, Advocate.


Judgment Text
1. This original petition is filed by the petitioner in E.P. No. 129 of 2013 of the District Court, Kollam.

2. Petitioner wants enforcement of Ext.P1, award dated 07.02.2012. He moved Ext.P3, application - E.A. No. 51 of 2013 for attachment of an item of property belonging to the respondent. Learned District Judge issued notice on that application returnable by 21.05.2013. Petitioner, apprehending that respondent might in the meantime transfer the property has approached this court with this original petition under Article 227 of the Constitution praying that respondent may be directed to furnish security for the amount due as per Ext.P1, award until disposal of E.A No. 51 of 2013 and for a direction to the learned District Judge to dispose of E.P. No. 129 of 2013 expeditiously.

3. Learned counsel for the respondent has opposed the original petition on various grounds. It is contended that the original petition itself is not maintainable since petitioner which is stated to be a company is not represented by a competent person as provided under Rule 1 of Order XXIX of the Code of Civil Procedure (for short "the Code"). Petitioner is represented by an Advocate who otherwise not entitled to represent the company in a legal proceeding. The vakalath and authorization produced along with original petition are defective. Endorsement on the docket of vakalath shows that it intended to be produced in a case between petitioner and M/s. Penil Cashew Company. Learned counsel argues that even the original of letter of authorisation appended to the vakalath is not produced apart from that the country where the authorisation was executed is not mentioned. It is further argued that this original petition is filed suppressing material facts in that respondent has filed O.P.(Arb) No.87 of 2012 in the District Court, Kollam to set aside the Ext.P1, award (Ext.R1(a) is the copy of petition) but there is no mention of that original petition in this original petition. Learned counsel also argued that Ext.P1, award was passed on 07.02.2012 while respondent filed O.P.(Arb) No. 87 of 2012 on 06.03.2012. It is submitted that petitioner, notwithstanding that it has got information about that original petition has deliberately refused to appear in the said proceeding. Ext.P2, execution petition is preferred only on 25.03.2013. A further argument is that even in the application for attachment preferred in the court below, there is no mention as to where from petitioner got information that respondent is about to dispose of its properties. Learned counsel points out that though Ext.P1, award was passed on 07.02.2012 respondent did not transfer the property even on filing of execution petition on 25.03.2013.

4. Yet another argument advanced is that under Sec.48(3) of the Arbitration and Conciliation Act, 1996 (for short "the Act") it is within the power of the court when the award is under challenge to adjourn proceeding for enforcement of the award. According to the learned counsel the award also is not enforcible as it is opposed by the public policy of this country.

5. Learned counsel for petitioner has in response argued that there is no law which prohibits an advocate from acting as representative of a company. Though there is a mistake in the docket sheet of the vakalath, it is executed for production in this case. It is further argued that the original of letter of authorisation is produced in an another case involving petitioner.

6. Question whether the award is enforcible or not, I am inclined to think, is not required to be decided in this proceeding. Now the question whether acting upon this original petition, I must order conditional attachment of property of the respondent to secure enforcement of Ext.P1, award ? So far as allegation of suppression of material fact is concerned, though in this original petition there is no reference to O.P. (Arb) No. 87 of 2012, I must notice that petitioner has produced Ext.P2, execution petition where there is reference to the respondent filing O.P. (Arb) No. 87 of 2012. Therefore, it is not as if petitioner has suppressed anything from the notice of this court.

7. So far as entitlement of Shri. Anilkumar to represent petitioner is concerned, I am inclined to think that it is not necessary for me to go into that question even in this proceeding since respondent could if so advised raise the learned District Judge in challenge of maintainability of Ext.P2, execution petition. As it stands, it is seen that there is a letter of authorisation executed by the Secretary of petitioner authorising the said Anilkumar to appear in legal proceedings in India on behalf of the said company. For the time being, until it is otherwise decided by the executing court if the question is properly raised, that authorisation is sufficient to entertain this original petition.

8. So far as Sec.48(3) of the Act is concerned, that only enables the court to postpone enforcement of the award when there is challenge to the correctness of award itself. That does not mean that the court must refuse to pass an interim order of attachment thereby enabling a judgment debtor to dispose of the property.

9. The next question is whether petitioner should have challenged the order issuing notice on Ext.P3, application returnable by 21.05.2013. It is not as if petitioner is challenging the said order in this proceeding; instead petitioner, in exercise of power of this court under Article 227 of the Constitution is requesting for an order of interim attachment until learned District Judge disposes of Ext.P3, application. Therefore the challenge to the order issuing notice on Ext.P3, application returnable on 25.03.2013 is not essential.

10. Yet another contention learned counsel for the respondent has advanced is about non-mention of name of the person who (allegedly) gave information to the petitioner regarding attempt of the respondent to dispose of the property. Since I am not dealing with Ext.P3, application that question is left open for decision by the court below at the appropriate stage.

11. Enforcement of the award, if it is otherwise enforceable has to be secured.

12. At this stage learned counsel for the respondent submitted that respondent undertakes not to transfer or otherwise dispose or encumber the property sought to be attached until disposal of Ext.P3, application.

13. The undertaking made by the party would have the effect of attachment, as held in Cherukutty V. Subrama Sastrigal and others (1987 KLJ 1144). Hence I am inclined to accept the undertaking.

Resultantly, thi

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s original petition is disposed of as under:- 1) Undertaking made by the learned counsel on behalf of the respondent that respondent will not since this day and until disposal of Ext.P3, application transfer in any other manner dispose of or encumber the property sought to be attached by Ext.P3, application is accepted and recorded. 2) The court below is directed to dispose of Ext.P3, application untrammelled by the decision this court has entered on various points raised and the undertaking made by the learned counsel for the respondent as above mentioned. 3) It is made clear that parties or any of them is at liberty to request learned District Judge to dispose of Ext.P3, application as early as possible.
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