Remanded

Shajeer v. M/S. Shriram Transport Finance Co. Ltd.

Kerala HC8 Mar 2018CRP/120/2018

Case brief

AI extract

What is this about?

The Court allowed a civil revision petition and remitted the matter to the execution court. It directed the lower court to hear parties afresh and decide threshold objections regarding a discrepancy between the arbitral award amount and the execution petition claim before proceeding to merits.

What did the court decide?

Impugned order set aside; matter remanded to execution court to decide threshold objections on amount claimed vs. award amount.

Shajeer Vs M/S. Shriram Transport Finance Co. Ltd. — Execution and Attachment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939

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CRP.No. 120 of 2018

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--------------------

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E.P NO.477/2017 IN ARB.O.P.166/2015 OF ADDITIONAL DISTRICT COURT-IV,KOZHIKODE

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-----------

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PETITIONER/RESPONDENT/JUDGMENT DEBTOR 2:

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SHAJEER, S/O MOIDEEN, AGED 33 YEARS, KANNAKKOTT HOUSE, KOKKALUR P.O, BALUSSERI, KOZHIKODE, 673612.

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BY ADV.SRI.BINOY VASUDEVAN

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RESPONDENT/PETITIONER/AWARD HOLDER:

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M/S. SHRIRAM TRANSPORT FINANCE CO. LTD., BRANCH OFFICE, UNITY PLAZA, NH BYPASS, VATAKARA, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MADHUSOODHAN M.KS/O PADMANABHAN NAIR, AGED 48 YEARS, SREEPADAM HOUSE, THALAKKULATHUR P.O, KOZHIKODE, 673317.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.V.

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ALEXANDER THOMAS, J .

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C.R.P. No. 120 of 2018

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Dated this the 8^th day of March, 2018

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O R D E R

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The main prayer in this Civil Revision Petition filed under

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Section 115 of the Code of Civil Procedure is as follows :

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“For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may kindly be pleased to call for the records leading to the order dated 07.12.2017 in E.P. No. 447/2017 in Arb. O.P. No.166/2015 on the file of the Court of the Ivth Additional District Judge, Kozhikode and to allow this Civil Revision Petition by setting aside the said order and to dismiss the execution petition or in alternate to remit the matter back to the court below in the interest of justice.”

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Heard Sri.Binoy Vasudevan, learned counsel appearing

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for the petitioner. In the nature of the orders proposed to be passed in this petition, notice to the respondent will stand dispensed with.

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The petitioner herein is the 2^nd respondent in Arbitration O.P. No.166/2015 initiated by the respondent herein before the Arbitrator appointed in terms of the agreement between the parties. The respondent herein is a non-banking finance company, who is the 1^st respondent in the arbitral proceedings before the Arbitrator. The petitioner herein was the guarantor for the loan transaction. The agreement between the parties stipulates that the

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C.R.P. : 120 of 2018

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-:2:-

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matter can be resolved by an Arbitrator appointed by the respondent. An award was passed ex parte on 27.05.2016 and a copy of the same was communicated by the Arbitrator. The amount in the award was only Rs.2,74,449/- along with 12% interest from the date of petition, i.e., 21.04.2015.

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It is the case of the petitioner that he had no objection to the said amount. However, the respondent company has preferred execution petition, wherein their claim was Rs.3,39,671/- with interest and cost. The petitioner was the guarantor to the loan transaction and his property has been attached. The petitioner preferred objections contending that the execution petition is not maintainable as the respondents had committed a fraud on the court in as much as the amount awarded by the Arbitrator was only Rs.2,74,449/- along with interest thereon from the date of petition, whereas the amount claimed in the execution petition was Rs.3,39,671/- over and above the interest and costs.

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It is the case of the petitioner that the amount claimed in the execution petition in drastic variance with the amounts shown in the copy of the arbitration award as served to the petitioner herein. It is pointed out that the respondent had approached the execution court for executing the award for an amount higher than

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C.R.P. : 120 of 2018

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-:3:-

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the award passed by the Arbitrator. The court below had dismissed the objection and decided the issue on the ground that the petition cannot be considered at that stage. According to the petitioner, this stand taken by the execution court is incorrect and wrong and that the execution court was under the obligation to consider the above said objection raised by the petitioner at the threshold itself before entering into the merits of the execution petition further.

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Having heard learned counsel for the petitioner, this Court is of the view that if, as a matter of fact, the amounts shown in the execution petition is much higher than the one shown in the award of the Arbitrator, then certainly the said objection of the petitioner should have been considered by the execution court at the threshold itself before proceeding with the merits of the execution petition any further.

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Therefore, the matter requires a remit as it requires serious reconsideration at the hands of the court below. For such a remit, it is not necessary to issue notice to the respondents, as the said parties will be heard by the execution court, consequent to the remit. To facilitate such remit, the impugned order dated 07.12.2017 in E.P. No.477/2017 in Arb. O.P.No.166/2015 on the

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C.R.P. : 120 of 2018

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-:4:-

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file of the Court of IVth Additional District Judge, Kozhikode will stand set aside. The execution court will hear both the parties afresh and will take a decision on the above said objections raised by the petitioner at the threshold itself before entering into the merits of the matter in the execution petition any further. The petitioner will be at liberty to file appropriate application along with a detailed affidavit pointing out the contentions and objections raised by him. The respondent may also be given an opportunity to file their written objections/counter to the said application of the petitioner. A decision in this regard by the execution court on the above said objection of the petitioner, without much delay, preferably within a period of two months from the date of receipt of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the trial court for necessary information.

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With the above observations and directions, this Original Petition (Civil) will stand finally disposed of.

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Sd/- ALEXANDER THOMAS, JUDGE

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ttb

Shajeer v. M/S. Shriram Transport Finance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Shajeer v. M/S. Shriram Transport Finance Co. Ltd.

Case brief

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What did the court decide?

What the court decided

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