SHAJI AUGUSTINE Vs. CHITHRA WOODS MANOR WELFARE ASSOCIATION

JUDGEMENT

(1.) Dated this the 20th day of September, 2021 The petitioner in OP(C) No.472 of 2021 is the judgment debtor and the petitioner in OP(C) No.967 of 2021 is the decree holder in E.P.No.58 of 2020 on the files of the District Court, Thoduppuzha. [for convenience, the parties and documents are referred to, as described in OP(C) No.472 of 2021]. The brief facts, leading up to the filing of the Execution Petition, are as under;

(2.) The petitioner and the respondent had entered into Ext.P3 Memorandum of Agreement with respect to the conduct of hospitality business in 96 studio apartments constructed by the respondent in Pallivasal Village in Idukki District. Under the terms of the agreement, the petitioner was permitted to occupy the property along with movables on condition of payment of licence fees, at the rate of Rs.12,00,000.00 per mensem. Alleging persistent default in payment of licence fees, the respondent filed a suit for realisation of arrears of licence fees and other ancillary reliefs. As the Memorandum of Agreement contained an arbitration clause, the dispute was referred to a single member Arbitral Tribunal. In the arbitral proceedings, the respondent filed an interlocutory application under Sec. 17 of the Arbitration and Conciliation Act, 1996, seeking an order directing the petitioner to deposit an amount of Rs.1,65,73,439.00 towards arrears of licence fees. By Ext.P6 order, the Arbitral Tribunal directed the petitioner to furnish bank guarantee for Rs.1,36,49,439.00, valid for a period of six months, and to pay the licence fees of Rs.12,00,000.00 per mensem from June 2016 onwards. It was also indicated that non-compliance of the order will result in the appointment of a receiver to manage the assets involved. Aggrieved by the order, the petitioner preferred arbitration appeal before the District Court, Ernakulam. In the interregnum, the respondent had moved interlocutory applications before the Arbitrator, seeking review of Ext.P6 order, to the extent it directed furnishing of bank guarantee instead of depositing the arrears. The said applications were dismissed and the respondent also preferred an arbitration appeal. By a common order in the arbitration appeals, the District Court stayed further proceedings in the arbitration, subject to the petitioner continuing to pay Rs.12,00,000.00 per mensem and the entire arrears from 8/9/2016, calculated at the rate of Rs.12,00,000.00. The petitioner challenged the common order before this Court in O.P.(C) No.552 of 2017. Pending the original petition, the parties were referred to mediation and the disputes were amicably settled. Based on the mediator's report and Ext.P11(a) compromise petition, the original petition was disposed of vide Ext.P11 judgment, making the settlement part of the judgment. In terms of the settlement, the petitioner executed Ext.P12 promissory note, promising to repay an amount of Rs.54,26,531.00 before 10/1/2020. As the repayment was defaulted, the respondent filed E.P.No.58 of 2020 before the District Court, Thodupuzha seeking delivery of the decree schedule property after evicting the petitioner, for attachment and sale of the petitioner's properties or his arrest and detention in civil prison and appointment of Receiver for the management of the decree schedule property and the apartments. The petitioner filed counter affidavit alleging that the respondent had violated the terms of the agreement and that the default in paying the arrears of licence fees is not wilful and that, being a statutory tenant, he can be evicted only by due process of law. Thereafter, the petitioner filed E.A.No.14 of 2021, challenging the maintainability of the execution petition, mainly contending that Ext.P11 Judgement is neither an award under the Arbitration and Conciliation Act, 1996 nor a decree under Sec. 2(2) of the Civil Procedure Code. The challenge having been repelled under Ext.P16 order, the petitioner has filed O.P. (C) No.472 of 2021 seeking to set aside the order.

(3.) The decree holder/ respondent has filed O.P.(C) No. 967 of 2021 aggrieved by the order dtd. 23/3/2021 in E.P.No.58 of 2020 whereby the execution court granted the judgment debtor, opportunity to pay the arrears of licence fees in instalments. The decree holder is also aggrieved by the delay in evicting the petitioner from the decree schedule property.