M/S KOHINOOR TRANSPORTERS versus STATE OF UTTAR PRADESH on 21 August 2018

22

SUPREME COURT REPORTS

[2018] 10 S.C.R.

A

M/S KOHINOOR TRANSPORTERS

v.

STATE OF UTTAR PRADESH

(Civil Appeal No. 8338 of 2018)

B

AUGUST 21, 2018

[DIPAK MISRA, CJI AND DR. D.Y. CHANDRACHUD, J.]

Code of Civil Procedure, 1908:

s.47 – Money decree – Execution proceedings – Both theCparties filed their respective statements of calculations in regard tothe amount due under the decree of the Court – Executing Courtrejected the objections filed by respondent – Revision by respondent– High Court directed the appointment of Chartered Accountant toconsider the details of arrears – Held: High Court acted in manifestexcess of its jurisdiction while directing the appointment of aDChartered Accountant for the purpose of determining as to whetherthe decretal debt is to be marked as satisfied – The executionproceeding is pending before the Civil Judge and various ordershave been passed thereon from time to time – The issue as to whetherthe decree has been discharged or satisfied has to be determinedEby the Executing Court under s.47. CPC – The Executing Courtmust execute the decree as it stands, without adding anything to it –In the counter affidavit filed on behalf of the respondent, thecontention of the appellant that there was an admission in regard tothe balance of Rs 1.25 crores is sought to be controverted – Allthese are matters which must properly be addressed in the course ofFthe execution proceedings – The High Court has acted in excess ofjurisdiction by directing the appointment of a Chartered Accountant,particularly at this stage – The impugned order of the High Court isset aside – Having regard to the fact that the dispute between theparties arose out of a contract of 1980 and an award of 1984 whichGis still being executed, the High Court to dispose of the Civil Revisionexpeditiously.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8338of 2018.

H

From the Judgment and Order dated 18.09.2017 of the High Courtof Uttarakhand at Nainital in CLR No.147 of 2016.

Abhay Kumar, Saurabh Mishra, Himanshu Pal Singh, MukulKumar, Advs. for the Appellant.

Mrs. Rachna Gupta, Charu Singhal, Vikas Chaudhary, Advs. forthe Respondent.

The Judgment of the Court was delivered by DR. D. Y. CHANDRACHUD, J. 1. An arbitral proceeding tookplace between the appellant and the respondent under the ArbitrationAct 1940. The disputes originated in a contract of 1980 for certain civilworks and eventually resulted in an arbitral award dated 20 July 1984.The award was made a Rule of the Court on 30 August 1986 by theCivil Judge, Dehradun. The award has attained finality after the HighCourt of Uttaranchal dismissed an appeal filed by the State on 15December 2006. The Civil Judge, it may be noted, reduced the rate ofinterest from 12 per cent to 6 per cent.

2. The appellant filed an application for execution before theAdditional Civil Judge, Dehradun, being Execution Application 27/2010.During the course of the execution proceedings, the respondent-statedeposited an amount of Rs 75,65,945 towards the decretal debt. In thecourse of the execution proceedings the appellant and the state filedtheir respective statements of calculation in regard to the amount dueunder the decree of the Court. On 6 April 2015, the ExecutingCourtdirected the respondent to deposit an amount ofRs 1,25,16,969.56 stating that it is‘admitted’. Notice was issued to therespondent under Order XXI Rule 41 CPC to which it filed its objections.On 16 August 2016, the Executing Court rejected the objections on theground that the amount of Rs 1.25 crores was admitted, as evident fromthe earlier order dated 6 April 2015. A Civil Revision Application wasfiled by the respondent against the order of the Executing court. Duringthe course of the execution proceedings an order was passed on 3 August2017 directing the judgment debtor to comply with the earlier order of 6April 2015, failing which, it was observed “they shall be deemed to bepenheld”. After this order of the Executing Court, a stay application wasmoved in the revisional proceedings before the High Court by the State.The High Court by its impugned order directed the appointment of aChartered Accountant in the following terms:

A

B

C

D

E

FG

H

A

A“..So, I think that notwithstanding the absence of any prayerregarding the appointment of competent persons in this regard,the only recourse which may be helpful to the Court is to appointa Chartered Accountant in this matter who shall consider thedetails of the arrears, as have been claimed by the decree holder,and the details of accounts depicted in the departmental narrativeBsubmitted by the judgment debtor.

Each party is directed to submit the names at least two charteredaccountants within two weeks.”

3. It is this order of the High Court which is challenged in theCpresent proceedings.

4. Notice was issued on 5 January 2018 and the interim order ofthe High Court was stayed.

5. On behalf of the appellant it has been submitted that the HighCourt was manifestly in error in directing the appointment of a CharteredDAccountant for three reasons:

Firstly, the High Court acted in excess of jurisdiction by directingthe appointment of a Chartered Accountant in a civil revision when underSection 47 of the CPC all questions in regard to the execution dischargeor satisfaction of a decree have to be determined by the Executing Court; E

Secondly, there was no challenge to either the order dated 6 April2015 or the order dated 3 August 2017 of the Executing Court requiringthe respondent to deposit the ‘admitted’ dues of Rs 1.25 crores; and Thirdly, the interim order of the High Court virtually amounts tothe grant of final relief while considering the stay application.F

6. On the other hand, it has been submitted on behalf of the Statethat the appellant is seeking to aggrandize itself by revising its decretalclaim. Whatever was due has been deposited and an amount ofRs.75,65,945 was deposited before the Executing Court as far back ason 7 December 2012. It was urged that it is not open to the ExecutingGCourt to go behind the decree.

7. Having heard the learned counsel, we are of the view that theHigh Court has acted in manifest excess of its jurisdiction while directingthe appointment of a Chartered Accountant for the purpose of determiningas to whether the decretal debt is to be marked as satisfied. The execution H

proceeding is pending before the Additional Civil Judge, Dehradun and,as we have noticed, various orders have been passed thereon from timeto time. The issue as to whether the decree has been discharged orsatisfied has to be determined by the Executing Court under Section 47of the CPC. The Executing Court must execute the decree as it standswithout adding anything to it.In the counter affidavit which has beenfiled on behalf of the respondent, the contention of the appellant thatthere was an admission in regard to the balance of Rs 1.25 crores issought to be controverted.But that is a matter which need not detain thisCourt. All these are matters which must properly be addressed in thecourse of the execution proceedings. The High Court, in our view, hasacted in excess of jurisdiction by directing the appointment of a CharteredAccountant, particularly at this stage.

8. We, accordingly, allow the appeal and set aside the impugnedorder of the High Court dated 18 September 2017.Having regard to thefact that the dispute between the parties arises out of a contract of 1980and an award of 1984 which is still being executed,we request the HighCourt to dispose of the Civil Revision 147/2016 expeditiously, but in anyevent within a period of three months from the date on which a certifiedcopy of this order is placed on its record. The Civil Appeal is, accordingly,disposed of. There shall be no order as to costs.

Devika Gujral

Appeal disposed of.

AB

C

D

E

F

G

H