IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 2917 of 2011() --------------------------------- OPARB.16/2002 of PRL.SUB COURT,TRIVANDRUM PETITOINERS: -------------------- 1. KERALA WATER AUTHORITY REP.BY THE MANAGING DIRECTOR,THIRUVANANTHAPURAM 2. THE SUPERINTENDING ENGINEER, P.H.CIRCLE,KERALA WATER AUTHORITY, kKOTTYAM. 3. THE EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY,KOTTAYAM. BY ADV. SMT.AMBIKA DEVI, SC, KWA RESPONDENT(S): ------------------------ 1. CHERIYANKUNJU, R/A.EDATHOTTIYIL HOUSE, PIRAVOM P.O.,ERNAKULAM-DIED ON 19/12/2001 HIS LEGAL REPRESENTATIVES ARE ADDL RES-2-4. 2. GRACY CHERIYAN, W/O.E.A.CHERIYANKUNJU AGED 53 YEARS, R/A.-DO- 3. DEEPA CHERIYAN, D/O.E.A.CHERIYANKUNJU, AGED 27 NOW EMPLOYED MAKTOWN HOSPITAL, DEPARTMENT OF HEALTH SERVICE, DEIRA, DUBAI 4. ROOPA CHERIYAN, D/O.E.A.CHEIRYANKUNJU, AGED 25,NOW WORKING AT BOMBAY. ADV. SRI.S.SREEKUMAR, SENIOR ADVOCATE FOR R2 SRI.P.PRIJITH FOR R2 SRI.P.MARTIN JOSE FOR R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011, ALONG WITH OPC NO. 2918 OF 2011 THE COURT ON THE SAME O.P(C) NO.2917 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: ANNEXURE 1 AND ANNEXURE 1(A): THE CERTIFIED COPIES OF THE DECREE AND JUDGMENT DATED 27-3-06 OF THE PRINCIPAL SUB JUDGE, THIRUANANTHAPURAM. ANNEXURE 2: THE CERTIFICATE OF THE EXECUTION PETITION NO.407/06 IN OP(ARB) 16/02 BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. ANNEXURE 3: THE CERTIFIED OBJECTION DATED 6TH JUNE 2007 IN THE EXECUTION PETITION FILED BY THE 1ST JUDGMENT DEBTOR IN THE E.P. ANNEXURE 4: THE CERTIFIED COPY OF A STATEMENT OF FINAL PAYMENT DETAILS DATED 2/1/2008. ANNEXURE 5: THE CERTIFIED COPY OF EA 87/2009 FILED BY ADDL.2ND RESPONDENT, FOR HERSELF AND ADDL.RESPONDENTS 2-4 IN EXECUTION APPLICATION NO.87/09 DATED 14-1-2009 IN EP 407/06 BEFORE THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM ANNEXURE 6: CERTIFIED COPY OF OBJECTION DATED 21ST JANUARY 2009, BY THE 3RD JUDGMENT DEBTOR FOR HIMSELF AND FOR 1ST AND 2ND JUDGEMENT DEBTORS DT. 21-1-2009. ANNEXURE 7: THE CERTIFIED COPY OF THE ARGUMENT NOTE DATED 28-1-2010. ANNEXURE A: THE TRUE COPY OF THE LETTER NO.DGM/T/95/2011 DATED 21-6-2011 ADDRESSED TO THE MANAGING DIRECTOR, KWA BY THE GARNISHEE BANK, STATE BANK OF TRAVANCORE, KOWDIAR BRANCH. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) Nos.2917 & 2918 of 2011 ==================================== Dated this the 19th day of October, 2011 J U D G M E N T These Original Petitions are filed by judgment debtors 1 to 3 in E.P. No.407 of 2006 in O.P(Arb.) No.16 of 2002 of the court of learned Principal Sub Judge, Thiruvananthapuram. The Arbitrator passed an award as per which respondents 2 to 4-decree holders were allowed to realize the final bill amount with interest at the rate of 18% per annum from the date of entering appearance before the Arbitrator till the date of award and thereafter at the rate of 6% per annum from the date of award till date of realization. Thereafter O.P(Arb.) No.16 of 2002 was filed in the court of learned Principal Sub Judge to pass a decree in terms of the award. That petition was allowed and the learned Sub Judge passed a decree accepting the award and making it the decree of court. That was followed by respondents 2 to 4 filing E.P. No.407 of 2006 to execute the decree. Petitioners 1 and 3 filed objection to the execution petition on various grounds including that the execution petition is not maintainable, that the sum of Rs.6 lakhs shown in the execution petition as the final bill amount is not O.P(C) Nos.2917 & 2918 of 2011 -: 2 :- correct, that the final bill passed by the third petitioner on 05.01.2009 is only for Rs.7,485.24 (rounded off to Rs.7,485/-) and that is the actual amount due to the claimant under agreement No.121/E.E/83-84 dated 30.11.1983 which was considered and disposed of by the Arbitrator. In the objection petitioners 1 and 3 also stated that the amount which according to them due to the contractor is Rs.26,759/-. Certain other contentions were also raised including set off of the said amount. In the course of proceeding the executing court attached the amount belonging to the first petitioner and directed the garnishee-bank to deposit the said amount in court. The order of attachment is under challenge in O.P(C) No.2917 of 2011 while the consequent order directing the garnishee-bank to deposit the amount in the executing court is under challenge in O.P(C) No.2918 of 2011. 2. Learned counsel for petitioner contended that neither in the award nor in the judgment and decree of learned Sub Judge the amount payable under the final bill is quantified and hence there is no justification for respondents 2 to 4 claiming Rs.6 lakhs as if it is final bill amount. It is also argued by learned counsel that notwithstanding the objection that petitioners 1 and 3 have preferred to the execution petition, learned Sub Judge has O.P(C) Nos.2917 & 2918 of 2011 -: 3 :- not decided on the objection and fixed the amount if any payable to respondents 2 to 4 before the order of attachment was made and the garnishee-bank was directed to deposit the amount. Hence it is contended that the orders under challenge in the Original Petitions cannot stand and are liable to be set aside. 3. Learned Senior Advocate appearing for respondents 2 to 4 submitted that respondents 2 to 4 have filed a statement in the executing court as to how the amount mentioned in E.P. No.407 of 2006 is arrived at. According to the learned Senior Advocate, in so far as the award has permitted the original claimant to get the final bill amount and that award has been made a decree of the court which is not under challenge, petitioners cannot now challenge correctness of the award or the decree. According to the learned Senior Advocate what was required was only a quantification of the amount for which reference has to be made to the final bill. It is also submitted that respondents 2 to 4 have filed application in the executing court for a direction to the petitioners to produce all the relevant documents including the final bill to ascertain what exactly is the amount payable to the original claimant as per the said final bill. Learned Senior Advocate submitted that it is within the power of O.P(C) Nos.2917 & 2918 of 2011 -: 4 :- the executing court to decide with reference to the final bill what exactly is the amount due to the original claimant which has been accepted by the Arbitrator and which has been made the decree of the court. Though learned Senior Advocate suggested that as per the instruction given the executing court has decided on the amount actually due from the petitioners, in fairness learned Senior Advocate stated after a perusal of a copy of proceedings of the executing court handed over by the petitioners that proceeding of the executing court does not show that there was any adjudication on the amount (if any) due to respondents 2 to 4. 4. In that view of the matter, I am inclined to think that without deciding the actual amount due (subject to whatever objections petitioners have as to the authority of the executing court in that regard), learned Sub Judge was not correct in attaching the amount of first petitioner and directing the garnishee-bank to deposit the amount in the executing court. 5. The appropriate course in the circumstance is to direct that the order of attachment as well as the order directing the garnishee-bank to deposit the amount in the executing court will stand in abeyance until the executing court decides on the objection preferred by petitioners 1 and 3 to the execution O.P(C) Nos.2917 & 2918 of 2011 -: 5 :- petition and as to the amount if any payable to respondents 2 to 4. Resultantly, these Original Petitions are disposed of as follows: (a) It is directed that the order passed by the executing court attaching the amount belonging to the first petitioner and the order directing the garnishee-bank to deposit the amount in the executing court shall stand in abeyance until the executing court decides on the objection preferred by petitioners 1 and 3 to E.P. No.407 of 2006. (b) The executing court is directed to decide on the objection preferred by petitioners 1 and 3 to E.P. No.407 of 2006 as early as possible bearing in mind that O.P(Arb.) No.16 was of the year 2002 and that the award was passed much before that. O.P(C) Nos.2917 & 2918 of 2011 -: 6 :- (c) The executing court shall give all priority for deciding the objection as stated above. (d) The executing court may consider while deciding on the objection preferred by petitioners 1 and 3 the request made by respondents 2 to 4 to summon relevant documents from petitioners 1 and 3. THOMAS P. JOSEPH, JUDGE. vsv