Dismissed

Wazir Chand Bhatia v. Chief Engineer,Udhampur

J&K HC16 Aug 2021CR/71/2010

Case brief

AI extract

What is this about?

Revision petition filed by a decree holder challenging an order in execution proceedings where interest was calculated as a separate claim instead of incorporated into the principal decreetal amount. The court upheld the revision court's finding that the claim was misconceived as the decree merged interest into the principal amount.

What did the court decide?

Revised petition dismissed; impugned order in execution proceedings upheld.

Wazir Chand Bhatia Vs Chief Engineer,Udhampur — Execution and Attachment | J&K HC (2021)

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Serial No. 08

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CR No. 71/2010 IA No. 83/2010

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Wazir Chand Bhatia …Appellant(s)/Petitioner(s)

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Through:- Mr. Vijay Gupta, Advocate

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v/s

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Chief Engineer, Udhampur …Respondent(s)

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Through:- Mr. Vishal Sharma, ASGI

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Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

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ORDER

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Order dated 30.04.2010 (for brevity, ‘impugned order’) passed by the court of Principal District Judge Jammu (for brevity, ‘court below’) passed in the Execution Petition filed by the petition is being questioned in the instant revision petition.

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The facts as appearing the instant petition would reveal that an arbitration award was passed on 13.04.1992 in favour of the petitioner herein and same was made rule of the court and a decree drawn thereof on 19.05.2000. The award and decree came to be challenged before this Court in CIMA No. 140/2000 by the respondent herein. The award and decree came to be set-aside by this Court on 06.07.2005 and consequently, appointed retired Justice G.D. Sharma as arbitrator.

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On 08.09.2008, this Court upon filing of an application by the respondent herein directed Engineer in Chief to appoint a fresh arbitrator in terms of the contract agreement. The petitioner herein assailed both the

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2 CR No. 71/2010

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orders of this Court before the Apex Court by filing SLP which came to be allowed and disposed of in terms of order dated 20.11.2009 setting aside both the orders of this Court dated 06.07.2005 and 08.09.2008, upholding the order of the Court below dated 19.05.2000.

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After the order of the Apex Court dated 20.11.2009 an Execution Petition came to be filed by the petitioner herein before Principal District Judge, Jammu on 27.12.2009 wherein the impugned order dated 30.04.2010 was passed.

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The petitioner questions the impugned order inter-alia on the grounds that the order is against the decree of the Court, in that, the interest had been allowed/awarded as a separate claim and that same could not have been treated as part of the principal amount awarded under the decree and that the findings in this regard recorded by the court below is bad in law divesting the petitioner of the amount of interest due to him and that the court below did not appreciate the law cited by the petitioner and proceeded to the impugned order arbitrarily.

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Heard learned counsel for the parties and perused the record.

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Record tends to show that the petitioner-decree holder herein after passing of the order by the Apex Court dated 20.11.2009 in SLP filed by him maintained an Execution Petition before the court below laying a claim to an amount of Rs. 55,75,164.10 and sought a recovery of the same through the mode of attachment and the sale of the properties of the judgment debtor

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3 CR No. 71/2010

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on the ground that the judgment debtor failed to make payment under the decree. The amount claimed by the decree holder-petitioner herein had been calculated on the basis of decreetal amount of Rs. 3,13,987.00, being payable along with interest @ 18 per cent per annum from the date of final bill paid i.e. 15.07.1989 till realization of the amount.

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Record further tends to show that the judgment debtor respondent herein in the objections filed in opposition to the Execution Petition resisted the same on the ground that the Execution Petition has been filed prior to the expiry of period of three months as provided under Section 82 of CPC and that the calculation in respect of amount recoverable under the decree had been only Rs. 14,72,680.00 with interest calculated and included up to 08.01.2010.

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In the objections, it had further been pleaded by the judgment debtorrespondent herein that an amount of Rs. 9,27000.00 had been deposited by the judgment debtor before this Court in terms of order dated 17.04.2003, which included interest calculated upto 19.05.2005 and that the said amount had been later withdrawn by the judgment debtor when the decree was setaside. In essence, the calculation made by the decree holder-petitioner herein were disputed by the judgment debtor-respondent herein in the objections.

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The record further tends to show that the court below while considering the Execution Petition crystallized the controversy qua the amount recoverable under the decree and upon considering the matter in its

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CR No. 71/2010

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entirety, the court below found that the arbitral award was passed on 13.04.1992 for an amount of Rs. 3,13,987.00 under 22 Heads besides interest in favour of the decree holder-petitioner herein and that the award was made rule of the court and decree was drawn on 19.05.2000 and it emerged from the perusal of the decree sheet that interest figuring at sr. No. 11 is component of the decreetal amount having been awarded at the rate of 18 per cent per annum on all the awarded amount from the date of final bill paid till the date of actual payment or the date of courts decree whichever is earlier. The court below also noticed that the date of final bill paid is 15.07.1989.

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Perusal of the award tends to show that interest has been allowed at a uniform rate of 18% on all the awarded amounts from the date of actual payment or date of decree which is earlier. The decree passed in terms whereof award was made rule of the court has been set-aside upon an appeal to this Court followed by a modification order and then followed by the judgment/order of the Apex Court after the same were challenged by the petitioner before the Apex Court resultantly, confirming the decree and merging the said decree with the order/judgment of the Apex Court dated 20.11.2009 which date in fact became computable for the purpose of accrual of interest. Admittedly, the interest allowed at a uniform rate of 18 per cent per annum on all the awarded amount covered the period before, during and after the arbitration proceedings.

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5 CR No. 71/2010

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Perusal of the record further tends to show that the award nowhere provide for grant of future interest by way of a separate direction. The court below while making the award as rule of the court admittedly has not allowed any future interest and the interest thus, would be admissible till 20.11.2009 when the degree got merged into order/judgment passed by the Apex Court. The claim lodged by the petitioner thus, is misconceived and the computation of amount is not in tune with the terms of the decree.

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The impugned order passed by the court below has been rightly passed and does not, as such, call for any interference. Resultantly, the petition fails and is dismissed.

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(JAVED IQBAL WANI) JUDGE

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Jammu 16.08.2021 SUNIL-I

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Whether the order is speaking? : Yes/No Whether the order is reportable? : Yes/No

Wazir Chand Bhatia v. Chief Engineer,Udhampur

Case brief

What is this about?

What did the court decide?

Wazir Chand Bhatia v. Chief Engineer,Udhampur

Case brief

What is this about?

What did the court decide?

What the court decided

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