Bharat Heavy Electricals Ltd vs R.S.Avtar Singh & Co

2. The judgment debtor is the appellant before us. This appeal is directed against the judgment of the Division Bench of the Delhi High Court dated 03.11.2008 in EFA (OS) No.9 of 2002. The respondent undertook some contract work with the appellant in respect of which the dispute arose as regards the payment to be made by the appellant. The dispute went before the sole Arbitrator who passed an award on 15.03.1982 which was made the Rule of Court after protracted litigation. Thus after the award became final and conclusive, the respondent herein filed Execution Petition No.208/2000 contending that the appellant did not furnish the award amount in its entirety. The appellant while resisting the Execution Petition, also filed EA No.522 of 2000 under Section 47 of the Code of Civil Procedure by taking the stand that entire award amount has been fully paid and, therefore, there was nothing to be granted in the Execution Petition. The learned Single Judge dismissed the objections by order dated 12.07.2002 which was the subject matter of appeal in which the impugned judgment came to be passed by the Division Bench of the High Court of Delhi.

5. When the appellant challenged the said decision of the learned Single Judge dated 31.05.1985 in FAO (OS) 188 of 1985, the same came to be dismissed by the order dated 18.07.2000. During the pendency of the suit FAO (OS) No.188 of 1985 by way of an interim order dated 13.09.1985 the recovery under the award was stayed subject to the condition that the respondent paid the sum of Rs.1 crore into the Court which was directed to be withdrawn by the respondent on furnishing Bank guarantee for the purpose of restitution in case the award was set aside. It is not in dispute that in compliance of the said order necessary deposit was made. The respondent also realized the said amount of Rs.1 crore on 13.10.1985. The appellant moved an application for recalling order dated 18.07.2000 of the Division Bench and the same was also dismissed by the Division Bench on 31.07.2000. Thereafter, when the Execution Petition No.208 of 2000 was moved, the appellant took notice and filed application under Section 47 of the CPC in EA 522 of 2000 and another application under Order XXI Rule 26 in application EA 523 of 2000. The leaned Single Judge of the Execution Court while granting time for final reply, in the EA 522 and 523 of 2000 and rejoinder, if any, before the next date of hearing by order dated 30.01.2001 directed the appellant to deposit in Court a cheque for Rs.1,94,91,077/- being the admitted amount in favour of the respondent subject to deduction of tax at source along with TDS certificate. The execution of the warrant of payment issued on 18.10.2000 was directed to be kept in abeyance. The sum of Rs.1,74,93,835/- after deduction of tax at source in a sum of Rs.19,97,192/- in all a sum of Rs.1,94,91,077/- was realized by the respondent with an undertaking of the respondent that in case the Execution Petition found to be not maintainable, he would refund the amount of Rs.1,74,93,835/- within a period of four weeks from the date of the order passed under the Execution Petition. The said order was passed on 30.01.2001 by the learned Single Judge. By filing an undertaking dated 05.02.2001, the respondent also withdrew the sum of Rs.1,74,93,885/-. Ultimately the execution was ordered by the learned Single Judge by an order dated 12.07.2002 by calculating subsequent interest only in the remaining principal amount and dismissed the objection petition.

6. When the appellant preferred this appeal against the said order dated 12.07.2002, in EFA (OS) No.9/2002, an interim order came to be passed on 23.08.2002 directing the appellant to deposit whatever balance amount due after deduction of TDS as per the final order passed by the learned Single Judge with a further order to realize the said sum subject to restitution and on furnishing security to the satisfaction of the Registrar.

12. Leaving aside the intimation by way of service, as regards the payment as provided under sub-rule (2), inasmuch as in the case on hand on different dates the payments were made, such payments were all made after due notice to the respondent. Therefore, there was no controversy relating to the date when the respective payments were made. We are, therefore, only concerned with the implication and application of sub-rule (1) of Order XXI and the consequent effect on whatever payments made, as claimed by the appellant by operation of sub-rule (4). Therefore, in the forefront, we wish to examine as to what extent the prescription contained in sub-rule (1) of Order XXI was followed by the appellant in making the payments once on 18.10.1985 and subsequently on 13.12.2000. The words used in sub-rule (1) in different expressions means whatever money that is due and payable under a decree, which could be paid in the manner stipulated in sub-clauses (a), (b) and (c) of the said sub-rule (1). The prime words, which needs deeper scrutiny are “payable under a decree”. To understand the said set of expressions what is required to be scrutinized is as to how the decree has been made while granting the relief as regards the payment. We, therefore, have to refer to that part of the award of the Arbitrator to understand the nature of relief granted under the said award. The operative part of the award, as extracted earlier, disclose that the respondent was entitled to a sum of Rs.1,42,24,894/- along with interest at the rate of 12 per cent per annum on the said amount from 06.01.1981 till the date of payment or decree whichever was earlier. The Arbitrator after giving credit to the counterclaim made by the appellant ultimately worked out the actual amount payable to the respondent which worked out to Rs.1,41,68,474/-. The said award of the Arbitrator was accepted by the respondent. When the award was made as the Rule of the Court in the order dated 31.05.1985, the only alteration made was the date of calculation of interest rendered by the Arbitrator. While the Arbitrator directed such calculation of interest to be made from 06.01.1981, the learned Single Judge directed such calculation to be made from 12.03.1981. In the said order of the Court dated 31.05.1985 which forms the basis for the respondent to make the claim, inasmuch as the award became the Rule of the Court only pursuant to the said order, it is important to make reference to what the Rule of the Court stated in the said order. In the penultimate paragraph, it has been specifically stated as under:

October 05, 2012