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The Executive Engineer Public Health Engineering Department, Karimganj v/s M/S Gopinath Udyog P Ltd. Karimganj & Others

    Case No. WP(C) 423 of 2012

    Decided On, 17 May 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

    For the Petitioner: N. Deb, Advocate. For the Respondent: SC, Phe.



Judgment Text

Judgment

1. The extraordinary jurisdiction of this Court under is sought to be invoked by filing this writ petition. The petitioner who is the Executive Engineer, Public Health Engineering, Karimganj has approached this Court against a proceeding pending before the learned District Judge, Karimganj wherein a Writ of Attachment was issued. The said writ/warrant of Attachment is in connection with the final Award made by the Industry Facilitation Council dated 20.05.2005 whereby the authority in the Public Health Engineering Department was directed to pay a sum of Rs. 4,98,076/- under the statute holding the field, namely, The Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act, 1993, awarded in case of a dispute raised under the provision of the said Act. For the said purpose, an Industry Facilitation Council is constituted which would adjudicate the dispute relating to such claim.

2. As per Section 6(2) of the Act of 1993 an award passed by the Industry Facilitation Council is to be treated at par with an award passed under the Arbitration and Conciliation Act, 1996 and the provision of the said Act would apply mutatis mutandis. In the instant case, the award dated 20.05.2005 which was inter-parte one, was put for enforcement by filing an execution case before the learned Court of the District Judge, Karimganj in terms of Section 2(e) of the Act of 1996 which defines Court as the Court of Principal Civil Judge of a District having original jurisdiction.

3. The learned District Judge after registering the case as Money Execution Case No. 1/2009 had issued a Writ of Attachment which is the subject matter of dispute. It to be noted that while such writ / warrant of attachment was issued on 16.12.2010 itself, on 11.08.2011, the learned District Judge, Karimganj had recorded that a petition No. 134/2013 was filed by the judgment debtor praying for 3 months time for payment of the decreetal amount. Accordingly, 29.09.2011 was fixed as the next date. The learned District Judge, Karimganj had passed an order dated 21.07.2011 issuing a warrant of attachment on the failure to satisfy the award of the learned Industry Facilitation Council by quantifying the amount as Rs. 19,85,437/- and in the schedule the property to be attached have also been enumerated which included a truck, computers, almirahs, chairs and tables from the office of the Executive Engineer, PHE, Karimganj.

4. It may be mentioned that initially, the decree holder had filed a writ petition being WP(C) No. 5614/2008 before this Court praying for implementation of the award of the learned Industry Facilitation Council. This Court vide order dated 05.01.2009 after observing that a recourse for execution is prescribed in section 6(2) of the Act had closed the writ petition with liberty to the petitioner to approach the appropriate forum to a redressal of the grievance. It is after the aforesaid order of this Court, the execution case was filed at Karimganj.

5. Heard Ms. M. Dev, learned counsel for the petitioner as well as Shri M.K. Choudhury, learned Senior Counsel, for the respondents. Also heard Ms. K. Phukan, learned Government Advocate.

6. Ms. M. Dev, learned counsel for the petitioner has at the outset questioned the jurisdiction of the learned Court of the District Judge at Karimganj itself. It is submitted that since the Award was passed by the learned Industry Facilitation Council at Guwahati, the Court of the District Judge, Guwahati would have been the Court having jurisdiction under the statute holding the field. She submits that jurisdiction being the basic requirement for adjudication, the entire impugned proceeding is vitiated as the same has been before a Court without any jurisdiction and accordingly the proceeding in general and the Warrant of Attachment in particular are not sustainable in law. The learned counsel further submits that even otherwise, the adjudication could not have been ordered in respect of the office of the petitioner who is the Executive Engineer, Karimganj, PHE as it is the Department which is liable to fulfil the award.

7. On merits of the dispute, learned counsel submits that before executing an enforcement proceeding under Section 36 of the Arbitration and Conciliation Act, 1996, the necessary pre-condition including the requirement of delivery of the signed copy of the award as envisaged in Section 31(5) of the Act not being fulfilled, the learned Court cannot assume jurisdiction to adjudicate the lis before it. It is submitted that the present petitioner was not party before the learned court below and apart from the requirements under the Act, it is settled principle of law that a decree/award cannot be executed against a person who is not party to the proceedings. Learned counsel further submits that there is procedural violation as laid down in Section 80 of the CPC before instituting the enforcement proceedings and in view of such violation, the entire proceeding is vitiated. It is accordingly submitted that the writ petition deserves to be allowed.

8. Per contra, Shri M.K. Choudhury, learned Senior Counsel submits that the petition itself is not maintainable. Questioning the maintainability, the learned Senior Counsel submits that the Executive Engineer cannot represent the Department and if at all it is the Department or for that matter the Chief Engineer who should have been aggrieved but neither the State nor the Chief Engineer have chosen to challenge the proceeding. It is also pointed out that in the writ petition, the Chief Engineer who is equally liable has been made the respondent no. 4. By referring to the order dated 11.08.2011 of the learned District Judge, Karimganj it has been submitted that when the judgment debtor had filed a petition seeking 3 months time to make the payment, the present petition is barred by the doctrine of estoppel. As regards the ground relating to territorial jurisdiction, the work pertaining to the Award being situated at Karimganj and Hailakandi, the decree holder has the option to initiate proceeding for enforcement at Karimganj where the work in question was done. Referring to the Code of Civil Procedure, the learned counsel submits that the jurisdiction of a Court cannot be barred under which the cause of action arises and in the instant case when the work in question pertained to that district, the learned Court of the District Judge, Karimganj had jurisdiction to adjudicate the case. On the ground of the Executive Engineer not being a party-respondent in the award, the learned counsel for the respondent submits that remedies in such case are prescribed in the CPC and particular reference is made to Order 21 Rule 101. Referring to the affidavit-in-opposition filed by the respondent no. 4, more specifically paragraph 11, the learned Senior Counsel submits that direction for payment were indeed made which was not done. It is lastly submitted that under the Act of 1993 relating to payment of interest on the late payment, the interest keep on accruing and therefore the present petition is against the interest of public as in the meantime, further interest has accrued.

9. Rejoining her submission, Ms. Dev the learned counsel submits that issue of maintainability had come up at the time of admission of the writ petition and after such admission, the same cannot be raised again. It is also submitted that strict application of the CPC is not envisaged and under the common law, no liability can be saddled upon the petitioner who was not a party in the Award. Referring to the provision of Order 22 Rule 1 of the CPC, it is submitted that the petitioner has been authorised to file the present writ petition. The learned counsel reiterates that since the award was passed at Guwahati, the enforcement can be done only at Guwahati.

10. Ms. Dev relies upon the following decision to buttress her submissions.

i. (1994) 5 SCC 570, Sukalu Ram Gond v. State of M.P. and Others.

ii. 2003 AIR SCW 3872, Surya Dev Rai v. Ram Chander Rai.

iii. (2005) 4 SCC 239, Union of India v. Tecco Trichy Engineers & Contractors.

iv. (2010) 12 SCC 210 State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another.

v. (2011) 4 SCC 616, State of Maharashtra and Others v. ARK Builders Private Limited.

vi. (2012) 9 SCC 496 Benarsi Krishna Committee and Others v. Karmyogi Shelters Private Limited.

11. The learned counsel also relied upon two judgments of the M.P. High Court and Calcutta High Court.

12. In the case of Sukalu Ram Gond.(supra) Hon’ble Supreme Court has held that an award against a person not party to a reference is not binding. In the case of Tecco Trichy Engineers and Contractors (supra) and ARK Builders Private Limited (supra), the importance of delivering of the arbitarial amount has been emphasised. In the case of ARC Builders (supra) and in the case of Himachal Techno Engineers (supra) the limitation in filing an application under Section 34 has been laid down. In the case of Benarsi Krishna Committee (supra) the meaning of “party to arbitration” has been explained by the Hon’ble Supreme Court. The case of Surya Dev Rai (supra) as has been cited above in support for filing a writ petition against a proceeding for enforcement of an Award.

13. The rival submissions made by the learned counsels for the respective parties have been duly considered and the materials before this Court have been carefully examined.

14. On the issue of maintainability of the writ petition, though this Court was of the opinion that the issue was of some importance, the writ petition having been admitted for final hearing, non-suiting the petition on the said ground would not be justified. Coming to the merits of the case, there is no manner of doubt that the original claim under The Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act, 1993, is against the PHE Department of the Govt. of Assam. Since the work in question from where the claim has arisen pertains to the District of Karimganj, this Court is of the view that the cause of action is also within the territorial jurisdiction of the learned District Judge, Karimganj. This Court is also conscious of the fact that the proceeding under the Act of 1993 have to be held at Guwahati on default as the Industry Facilitation Council is situated only at Guwahati and that fact cannot take away the jurisdiction of a Court which is otherwise empowered to try the case. It is also being that the objection regarding jurisdiction was never raised before the learned Court below and in view of all the above facts and circumstances, the ground of lack of jurisdiction of the learned District Judge, Karimganj cannot be sustained.

15. As discussed above, the Award in question is not against the petitioner in his personal capacity but against the Department as a whole. It is seen from the proceedings and the order sheet that both the Award and the Execution case before the District Judge are interparte proceedings. In view of the same, the plea /objection regarding the binding effect of the award cannot be sustained. The Award is against the Department in an inter-parte proceeding and the direction to pay the amount by the communication of the Chief Engineer amply demonstrates that the Department has not only received the award but also conscious of the fact that the same has to be implemented. It is also failed to be understood as to how the present petitioner in his official capacity would challenge the proceeding only because of the fact that attachment of materials of his office are involved. It is needless to mention that the present petitioner in his official capacity had other remedies available to overcome the attachment order by seeking the advice of the Department and fulfilling the award. It appears that the present proceeding is nothing but a dilatory tactics to delay the execution which

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is deprecated by this Court. The proceeding before the learned District Judge being an interparte one in which a written undertaking by way of a petition was also given on behalf of the Department as reflected in the order dated 11.08.2011, the Department cannot be allowed to turn around and file the present proceeding through its Executive Engineer. 16. None of the case laws submitted by the learned counsel for the petitioner comes to her aid, as the facts are distinguishable. This Court is bound by the law laid down by the Hob’ble Apex Court, but what is required to be seen is the facts and circumstances under which the pronouncement have been made. 17. Ms. Dev has also placed before this Court a communication dated 23.12.2011 along with an enclosure. Both the communications are with regard to her engagement as a counsel to challenge the proceeding of the Money Execution Case. There is no dispute to the authority and power of the learned counsel to act as an Advocate to challenge the proceeding before the learned District Judge, Karimganj. However, the locus of the petitioner who is Executive Engineer of Karimganj Division to file this petition is questioned. 18. In view of the above, this Court is of the opinion that there is no merit in this writ petition and accordingly the same is dismissed.
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