The High Court granted the petitioner 15 monthly installments to pay the decretal amount while keeping execution in abeyance. The court held that seeking time to pay indicated waiver of challenge to executability, preventing blow-hot-and-cold behavior.
Petitioner granted 15 equal monthly installments; execution kept in abeyance until completion.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938
OP(C).No. 2792 of 2016 (O)
EP 105/2015 of VI ADDL.DISTRICT COURT, ERNAKULAM
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PETITIONER(S)/JUDGMENT DEBTOR IN EP 105/2015.:
MOHAMMED AFSAL, AGED 39 YEARS, S/O HANEEFA, THEVAKKAL HOUSE, SRM ROAD, KOCHI- 682018.
BY ADVS.SRI.PRAVEEN K. JOY SRI.T.A.JOY
RESPONDENT(S)/DECREE HOLDER IN EP.105/2015.:
HDFC BANK LTD. HAVING ITS REGISTERED OFFICE AT HDFC BANK HOUSE, SENAPATI, BAPAT MARG, WEST MUMBAI - 400013, AND HAVING ITS REGIONAL OFFICE AT S.L PLAZA, PALARIVATTOM, ERNAKULAM, POWER OF ATTORNEY HOLDER, MR. MANOJ V. KRISHNAN.
R1 BY ADV. SRI.T.RAJESH, SC, HDFC BANK LTD.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 2792 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: THE TRUE COPY OF THE EXECUTION PETITION EP.105/2015 BEFORE THE DISTRICT COURT-VI, ERNAKULAM.
EXHIBIT P2: THE TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT IN EP 105/2015 OF DISTRICT COURT, ERNAKULAM.
EXHIBIT P3: THE TRUE PHOTOCOPY OF THE REVIEW PETITION BEFORE THE DISTRICT COURT-VI, ERNAKULAM.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
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K. RAMAKRISHNAN, J.
....................................... O.P.(C).No.2792 of 2016
Dated this the 9th day of November, 2016.
JUDGMENT
This is a petition filed by the petitioner seeking a direction to be given to the court below to consider Ext.P3 application till then the order of warrant passed against him is directed to be kept in abeyance under Article 227 of the Constitution of India.
O.P.(C).No.2792 of 2016 2
The court below had passed an order issuing warrant of arrest against the petitioner overruling the objections raised. Thereafter the petitioner filed Ext.P3 petition to review the order. Since no orders have been passed in that application, the petitioner has approached before this court seeking the following reliefs.
i. To call for the entire records leading to Ext.P1 in EP.No.105/15 in Arbitration Ref.No.570/2013 on the files of Vth Additional District Court, Ernakulam and to declare the entire proceedings under Ext.P1 as illegal in the interest of justice.
ii. To issue appropriate directions to the Vth additional District Court, Ernakulam to take up and reconsider Ext.P2 and P3 objections and petition and keep in abeyance the Execution proceedings against the petitioner till then, in the interest of justice.
O.P.(C).No.2792 of 2016 3
respondent on the ground that the award was passed in the year 2014, but no amount has been paid and huge amount is due.
O.P.(C).No.2792 of 2016 4
right to challenge the executability of the award and wants only installment facility to pay off the amount. Considering the fact that the award is of the year 2014 and an amount of Rs.6,23,806.82 with interest @ 17.25% per annum from 13.11.2003 is due, this court feels that granting 15 installments will not cause any hardship to the respondent bank as well.
The petitioner is granted 15 equal monthly installments to pay the amount, till then the execution is directed to be kept in abeyance. The first installment will have to be paid on or before 30.11.2016 and the subsequent installments will gave to be paid on or before 30th of every month and the last installment has to
O.P.(C).No.2792 of 2016 5
be paid on or before 30th January, 2018. If any one of the installments is defaulted by the petitioner, then the benefit of this order will not be available to the petitioner and the respondent bank can proceed with the execution from the stage at which it has been kept in abeyance by orders of this court. This will not be a bar for the petitioner to approach the respondent bank for further settlement either as one time settlement or for getting some discount in the amount payable and if such an approach is made, that can be considered by the bank. They are also at liberty to fix the period of payment also if it is agreed between the parties in modification of the order passed by this court. If any default is committed on the basis of the settlement arrived at between them, then also the benefit of settlement will not be available to the petitioner. The court below is directed to keep the execution in abeyance as stated above and proceed with the execution if any default has been committed.
With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
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3 issues framed by the court
Whether to grant installment facility to the judgment debtor despite pendency of challenge proceedings under Section 34 of the Arbitration Act.
Whether the petitioner can simultaneously seek time to pay and challenge the executability of the award.
Whether execution proceedings against the judgment debtor may be kept in abeyance pending payment of installments.
Colour shows how this judgement treated each authority
Benarsi Krishna Committee v. Karmyogi Shelters (P) Ltd.Referred¶39
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As recorded by the court registry
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