9911796707
|
Home
Issues Involved:
1. Whether the award decree dated 02.06.1989 was a nullity being barred by limitation. 2. Whether the executing Court can go behind such a decree. 3. Whether any interference under Article 136 of the Constitution is called for. Issue-Wise Detailed Analysis: 1. Whether the award decree dated 02.06.1989 was a nullity being barred by limitation: The appellant obtained an award decree on 02.06.1989 from the High Court of Calcutta, which was sought to be executed. The respondent-judgment debtor contended that the decree was a nullity as it was barred by limitation. The executing court overruled these objections. The Division Bench of the High Court remanded the case, directing the Single Judge to re-examine the limitation issue and whether the arbitrator filed the award suo motu or at the instance of the award holder, referencing the case of Patel Motibhai Naranbhai and Anr. v. Dinubhai Motibhai Patel and Ors. The Supreme Court noted that the award dated 17.04.1985 was filed in court on 23.03.1989, and the respondent did not contest the proceedings or file any objections under Section 30 of the Arbitration Act, 1940. The court passed an ex parte order making the award rule of the court on 02.06.1989. The Supreme Court held that the delay in executing the decree within the permissible period for limitation does not give the judgment-debtor the right to challenge the execution proceedings. The contention that the award was a mock one and not intended to be enforced was rejected as it could not be raised in execution proceedings. 2. Whether the executing Court can go behind such a decree: The Supreme Court emphasized that the executing court cannot go behind the decree unless it is shown that it was passed by a court lacking inherent jurisdiction, which would make it a nullity. The court cited the cases of Ittavira Mathai v. Varkey Varkey and Anr., and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors., to support this principle. The court noted that the question of whether the award was filed by the arbitrator suo motu or not was a mixed question of law and fact, which should have been raised before the award was made a rule of the court. Since the respondent did not file objections under Section 30 of the Arbitration Act, 1940, the decree could not be considered a nullity. 3. Whether any interference under Article 136 of the Constitution is called for: The Supreme Court found no merit in the respondent's contention that the arbitration proceedings were a mock fight or that fraud was committed. The court noted that the respondent had taken a loan of Rs. 15 lacs from the appellant and had acknowledged the installments granted by the arbitrator. The respondent's claim of not knowing about the award or award decree was deemed an afterthought. The court held that there was no equity in favor of the respondent to avoid compliance with the terms of the award decree. The Supreme Court concluded that the appellant was entitled to the fruits of the award decree and that the execution of the said decree would not result in injustice to the respondent. Conclusion: The Supreme Court allowed the appeals, set aside the impugned judgment and order of the Division Bench of the High Court dated 10.02.1998, and confirmed the decision of the learned Single Judge of the High Court dated 23.12.1997. There was no order as to costs.
|
