Remanded

Hameed Chundan Patta v. Shriram Transport Finance Co.Ltd

Kerala HC4 Oct 2021OP(C)/622/2021

Case brief

AI extract

What is this about?

The High Court quashed a non-speaking order fixing the upset price for an auction sale in execution of an arbitration award. The order was remanded to the executing court to pass a fresh speaking order fixing the actual market value. The matter was expedited with a direction to dispose within six months.

What did the court decide?

Set aside Ext.P5 order; remitted to executing court to pass fresh speaking order fixing actual market value.

Hameed Chundan Patta Vs Shriram Transport Finance… — Execution and Attachment | Kerala HC (2021)

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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 A. BADHARUDEEN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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OP(C) NO. 622 OF 2021

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AGAINST THE ORDER IN EP NO.135 OF 2018 IN OP(ARB) NO.225/2015

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OF ADDITIONAL DISTRICT COURT - III, MANJERI, MALAPPURAM. PETITIONER/1ST RESPONDENT/1ST RESPONDENT :

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HAMEED CHUNDAN PATTA, AGED 49 YEARS, S/O. HAMZA, CHUNDAN PATTA HOUSE, THOOTHA P.O, ANAMANGAD (VIA), PARAL AMSOM DESOM, ALIPARAMBA VILLAGE, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679 357.

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BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB

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RESPONDENTS/PETITIONER & 2ND RESPONDENT/

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ARBITRATION AWARD HOLDER & 2ND RESPONDENT :

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1 M/S.SHRIRAM TRANSPORT FINANCE CO.LTD BRANCH OFFICE, 2ND FLOOR, T.K. TOWER, NILAMBUR ROAD, MANJERI P.O, MALAPPURAM DISTRICT-676 123, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER VIJAYAKUMAR V.M.

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2 ABDUL NAZER, S/O. HAMZA HAJI, NELLAYA PUTHAN PEEDIYEKKAL HOUSE, THOOTHA P.O, ANAMANGAD (VIA), PARAL AMSOM DESOM, ALIPARAMBA VILLAGE, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 357

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R1 BY BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN SRI.ANAND GOKULDAS

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C) No.622 of 2021 2

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A.BADHARUDEEN, J.

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-----------------------------------------------O.P(C) No.622 of 2021

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Dated this the 4^th day of October, 2021

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J U D G M E N T

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The petitioner herein is the judgment/award debtor in O.P(Arb.) No.225 of 2015, where from E.P No.135 of 2018 is originated, which is now pending before the Additional District Court - III, Manjeri. The respondent herein is the award holder in the above arbitration award. The specific case put up by the petitioner is that the executing court fixed the value of the property to be sold as Rs.38 Lakh and the said amount is too low. According to the learned counsel for the petitioner, the house itself would fetch Rs.20 Lakh and the property would fetch Rs.50 Lakh. Thus the total value of the property to be fixed at Rs.70 Lakh. This is the contention raised in his objection filed before the executing court. This is on the basis of which the order dated 07-01-2021 of the Additional District Judge, Manjeri is put under challenge.

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The learned counsel for the petitioner would point out that though this specific objection was raised by the petitioner herein before the court below the same was not considered at all. However the learned counsel for the petitioner fairly conceded that no

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O.P(C) No.622 of 2021 3

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documents to substantiate the land value at Rs.70 Lakh was produced before the executing court or before this Court. On perusing the objection, it could be gathered that the petitioner herein claimed the value of the property as Rs.70 Lakh viz., Rs.20 Lakh for the house and Rs.50 Lakh for the property. But in the original petition it is specifically stated that the total value of the property and building would come to Rs.52 Lakh (Rs.2 Lakh for the house + Rs.50 Lakh for the property). Thus it appears that the petitioner has no consistent case as to what actually is the value of the property proposed to be put in auction. However, the learned counsel for the petitioner would point out that the calculation stated in the civil original petition is a mistake and the petitioner is confining his contention to the effect that the property would fetch Rs.70 Lakh as stated in the objection.

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The learned counsel for the respondent would submit that the jurisdiction of this Court to entertain challenge in relation to execution proceedings under the Arbitration Act is too limited and in support of this contention, the learned counsel produced a decision reported in Deep Industries Ltd. (M/s.) v. Oil & Natural Gas Corporation Ltd, and Another (2019 KHC 7192). No doubt, this is the correct legal position. At the same time, this Court is not powerless and the said power is confined to supervisory jurisdiction.

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O.P(C) No.622 of 2021 4

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According to the learned counsel for the respondent, the court below rightly fixed with the upset price and proceeded with the sale of the property, wherein, the petitioner even failed to deposit Rs.21 Lakh agreed to be paid by way of mutual consent, years back.

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The crux of this case confines to fixation of upset price by the executing court. When reading Ext.P5 order, the diary extract whereby the execution court fixed the upset price and ordered sale of the property on 16-03-2021, it appears that no details regarding the value of the property or what are the documents/materials relied on by the court below to fix the value of the property, etc. To be more explicit, the order impugned would go to show that the same is not a speaking order containing necessary details justifying the order in the matter of fixation of proper value of the land and even the name of the Judge, who passed the order. I am surprised with the order of such a nature and no other comments in this regard for the time being. In view of the matter, the order is liable to be set aside and the matter required to be remitted back to the execution court for passing a fresh order for fixing proper property value and upset price in accordance with law. Therefore Ext.P5 order is set aside and the matter is remitted back to the execution court with a direction to pass fresh speaking order in relation to the draft sale proclamation after fixing the actual

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O.P(C) No.622 of 2021 5

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market value of the property based on the available materials inclusive of the documents, if any, produced from the side of the decree holder as well as the judgment debtor/petitioner herein.

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Considering the E.P is of the year 2018, the learned District Judge is directed to expedite the matter and dispose of the E.P at the earliest at any rate within six months from the date of receipt of a copy of this judgment or its production by the parties concerned.

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Sd/-

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A.BADHARUDEEN, JUDGE

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amk

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O.P(C) No.622 of 2021 6

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APPENDIX OF OP(C) 622/2021

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PETITIONER'S EXHIBITS :

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EXHIBIT P1 A TRUE COPY OF ARBITRATION AWARD DATED 8.2.2017 IN O.P. (ARB) NO. 225/2015 ISSUED BY THE SOLE ARBITRATOR, ADVOCATE SEBASTIAN M.J. EXHIBIT P2 A TRUE COPY OF E.P. NO. 135/2018 IN O.P. NO. (ARB) NO. 225/2015 BEFORE THE DISTRICT COURT, MANJERI DATED 20.03.2018. EXHIBIT P3 A TRUE COPY OF THE OBJECTION DATED 11.12.2019 IN E.P. NO. 135/2018 IN O.P. (ARB) NO. 225/2015 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL DISTRICT COURT III, MANJERI. EXHIBIT P4 A TRUE COPY OF THE SCREEN SHOT OF THE A DAIRY PROCEEDINGS DATED 10.03.2020 OF THE ADDITIONAL DISTRICT COURT III, MANJERI. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 7.01.2021 IN E.P. NO. 135/2018 IN O.P. (ARB) NO. 225/2015 OF THE ADDITIONAL DISTRICT COURT III, MANJERI.

Hameed Chundan Patta v. Shriram Transport Finance Co.Ltd

Case brief

What is this about?

What did the court decide?

Hameed Chundan Patta v. Shriram Transport Finance Co.Ltd

Case brief

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What did the court decide?

What the court decided

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