NIRANJAN SARKAR Vs. SOUTH EASTERN COALFIELDS LIMITED

JUDGEMENT

(1.) A dispute arose between the applicant / decree holder - M/s. Niranjan Sarkar, Contractors, a partnership firm registered under the provisions of the Indian Partnership Act, 1932, and the non-applicant / judgment debtor - South Eastern Coalfields Limited, a Government company, pursuant to the award of contract to applicant M/s. Niranjan Sarkar, Contractors, a partnership firm registered in accordance with the provisions of the Indian Partnership Act, 1932, relating to construction of 750 Miners Quarters at Kurasia Colliery, Chirimiri. The matter was referred to the Arbitrator for adjudication as per the arbitration agreement and ultimately, the Arbitrator passed arbitration award on 2/12/2006 to the tune of Rs.1,12,71,024.00, feeling aggrieved against which the judgment debtor - South Eastern Coalfields Limited (for short 'the SECL') preferred an application under Sec. 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Bilaspur for setting aside the award and the learned District Judge by order dtd. 3/12/2008 rejected the application for setting aside the award. Against the order passed by the learned District Judge, the SECL preferred Arbitration Appeal No.2/2009 which was also dismissed by a Division Bench of this Court on 21/6/2011. In the meanwhile, the entire decretal amount was deposited by the SECL before the executing court. On 5/7/2011, the applicant decree holder made an application for withdrawal of the decretal amount in which the SECL filed formal reply stating that the amount be disbursed to the competent person after satisfaction of the Court. By order dtd. 15/12/2011, an order was passed by the executing court directing that the amount be paid to M/s. Niranjan Sarkar, Contractors, by an account payee cheque and accordingly, the amount was paid to applicant M/s. Niranjan Sarkar, Contractors, through account payee cheque. Thereafter, it appears that an appeal was filed by the SECL against the order dtd. 15/12/2011 by which the executing court has directed that the amount be paid to M/s. Niranjan Sarkar, the applicant herein, through account payee cheque. The appeal was held to be not maintainable and, therefore, the SECL preferred a writ petition under Article 227 of the Constitution of India before this Court bearing W.P. (Art. 227) No.245/2013 which was disposed of without notice to the applicant herein by order dtd. 6/5/2013 holding that the amount should be disbursed to proper person after due enquiry. The executing court made an enquiry and held by the impugned order dtd. 10/3/2015 that the amount be paid to the partnership firm M/s. Niranjan Sarkar, Contractors, as existed on 3/8/1989 consisting of Smt. Roopa Sarkar, Ashish Sarkar, Deepak Sarkar and Smt. Nanda Rani Sarkar, against which this revision has been preferred.

(2.) Mr. V.R. Rao, learned Senior Advocate appearing for the applicant / decree holder, would submit that though the partnership originally existed on the date of award of the contract, but the same was subsequently reconstituted on 1-4- 2006 and also on 1/4/2009 on the death of Niranjan Sarkar which took place on 28/1/2009, and by virtue of the provisions contained in Sec. 17(a) of the Indian Partnership Act, 1932, after a change occurs in the constitution of a firm, the mutual rights and duties of the partners in the reconstituted firm remain the same as they were immediately before the change. He would further submit that there is no dispute among the old / existing partners with regard to the amount which has already been paid to the applicant firm and no dispute has ever been raised before any court of law till this date with regard to the decretal amount already deposited. Therefore, the order passed by the executing court is unnecessary and uncalled for and deserves to be set aside.

(3.) Mr. H.B. Agrawal, learned Senior Advocate appearing for the non-applicant / judgment debtor, would submit that the worry of the SECL is only that the amount be disbursed only to proper person in whose favour the award has been passed.