FUERST DAY LAWSON LIMITED Vs. JINDAL EXPORTS LIMITED

JUDGEMENT

(1.) This order, which I propose to pass, shall dispose of the application registered as E.A. 347/1998 filed by the respondent herein raising a preliminary objection about the maintainability of the execution petition filed by the petitioner herein and seeking for dismissal of the execution petition on the ground that the said petition is not maintainable.

(2.) An agreement was entered into between the petitioner and the respondent on 1.8.1994 whereunder the respondent was to supply certain goods to the petitioner during the period from January 1995 to June 1996. In course of execution of the aforesaid agreement certain disputes and differences arose between the parties and accordingly the petitioner filed a claim petition before the International General Produce Association, the body nominated by the petitioner as the arbitrators. It appears that the respondent objected to the aforesaid appointment. The arbitrators appointed entered into reference, received evidence and thereafter passed an award on 13.8.1996. By the aforesaid award the claims of the petitioner were allowed and by virtue of the said award the respondent was made liable to pay an amount of USD 408,600 to the petitioner. Thereafter the petitioner as decree holder filed an execution application in this court against the respondent for execution of the foreign award passed by the arbitrators on 13.8.1996. The said application was treated as an execution petition and in the purported exercise of powers vested under Order 21 of the Code of Civil Procedure, warrants of attachment were issued against the respondents in respect of its properties as described in the schedule annexed to the petition as ANNEXURE 'F'. Immediately thereafter the respondents appeared in the present proceedings and filed the aforesaid application in this court seeking for the aforesaid relief. On 9.9.1998 the said application was listed before the court. Counsel appearing for the respondent stated before the court that the attachment of the properties had causes enormous hardship to the business of the judgment debtor and therefore as an interim measure sought for recall and/or variance of the order dated 4.8.1998 passed by this court directing for issuance of warrants of attachment till the application Filed by it is disposed of. Since the respondent was ready and wiling to deposit in court bond certificates of the Indian Railway Finance Corporation Limited, it was ordered that the said bond certiFicates might be retained by the Registry of this court as a security for the due satisfaction of the decree/award as and when enforced. The said order was passed so as to enable the respondent to continue its business ventures and functioning and the order was passed without prejudice to the rights and contentions of the parties in the present proceedings. The petitioner has Filed its reply to the aforesaid application to which a rejoinder also stands Filed. Accordingly the aforesaid application was taken up for consideration and disposal and arguments thereon were heard.

(3.) In the application filed by the respondents raising the preliminary objection, it is slated that the execution proceedings instituted by the petitioner are not maintainable and arc premature and therefore, no attachment order could have been passed by this court on the basis of such premature proceedings which is without jurisdiction, therefore, the petition should be dismissed and the order passed on 9.9.1998 is required to be recalled.