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M/S HARYANA PACKERS versus PANIPAT CO

High Court of Punjab and Haryana, Chandigarh

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M/S Haryana Packers v. Panipat Co-op. Sugar Mills Ltd. and othe - CR-768-2006 [2006] RD-P&H 5398 (8 August 2006)

C.R.No.768 of 2006 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.768 of 2006

Date of Decision: 21 - 8 - 2006

M/S Haryana Packers ........Petitioner

v.

Panipat Co-op. Sugar Mills Ltd. and others ........Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Harkesh Manuja, Advocate

for the petitioner.

***

P.S.PATWALIA, J.

The present revision petition has been filed against an order dated 22.10.2005 passed by the learned Additional District Judge, Panipat dismissing the execution petition filed by the petitioner. The petitioner was a supplier of corrugated boxes to the judgment-debtors. As per the practice payment of boxes actually used was made to the petitioner and the unused boxes were the property of the petitioner. A dispute between the parties arose regarding payment of boxes supplied during the year 1996-97. The same was ultimately referred to an Arbitrator. The Arbitrator after hearing the parties directed respondents 1 and 2 to pay a sum of of Rs.4.06 lacs to the petitioner within 10 days of the receipt of the award failing which the petitioner was held entitled to interest at the rate of 12% per annum from the date of award till realisation. The Arbitrator further held that the decree-holder was allowed to take away the scrap and other material which belonged to him and was lying in the premises of respondents 1 and 2. The C.R.No.768 of 2006 [2]

amount as awarded by the Arbitrator has been paid to the petitioner.

The claim of the petitioner before the executing Court was that immediately after the passing of the award he had approached respondents 1 and 2 and requested them to return his scrap left out of the supplies made by him but he found that respondents 1 and 2 had actually used the scrap material and only a fraction of it and that too in a damaged condition was offered to the petitioner. He therefore claimed that he was entitled to the value of the scrap material withheld by respondents 1 and 2.

Respondents 1 and 2 contested the petitioner's claim. They pleaded that the material was supplied to them on filling basis. Only boxes actually consumed were to be paid for. Unused boxes were the property of the petitioner.

They stated that he had taken away some of the material lying in their Mill premises and the petitioner was always free to take any other such material lying in the premises of the respondents. They further stated that they were not responsible for any loss in quality or deterioration in the quantity of the said material.

The executing Court has rejected the petitioner's claim. The relevant observations of the Court are as hereunder:- "7. It is not in dispute that the corrugated boxes were being supplied by the decree-holder to the judgment-debtors. It is again not in dispute that the supply was on filling basis. Meaning thereby, the decree-holder used to get the payment of those boxes which were used and un-used boxes were the property of the decree-holder. It is also not in dispute that when dispute arose between the parties and at the time of decision of that dispute by the Arbitrator some scrap material belonging to the decree-holder was lying in the premises of the judgment-debtors. The judgment-debtors have admitted that fact even in their reply to the execution proceedings can go into the question of quantity of scrap material belonging to the decree-holder C.R.No.768 of 2006 [3]

which at the time of passing of the award by the Arbitrator was lying in the premises of the judgment-debtors and assess its value. The answer of this question, in my opinion, is in negative as it was within the domain of the Arbitrator to adjudicate upon the same.

8. Had the Arbitrator directed the judgment-debtors to return the scrap material of the decree-holder, the matter could have been otherwise, but in this case no such direction was given to the judgment-debtors. Rather the decree-holder was allowed to take away the scrap material lying in the premises of the judgment- debtors obviously for the reason that said material belonged to him and the judgment-debtors were in no way responsible for its quantity and quality as the supply, as stated above, was on filling basis.

Therefore, in absence of any finding on the quantity and value of the scrap material lying in the premises of the judgment-debtors by the Arbitrator, the said job cannot be assumed by this court being executing court.

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10. After going through the award, I am of the view that a right has been given by the Arbitrator to the decree-holder to take away the scrap and other material belonging to him which is lying in the premises of the judgment-debtors. He has a right to take away the same as said material belonged to him. If any quantity of material has been used by the judgment-debtors, then he has a right to seek remedy against them either by filing a suit to claim cost of said material or by prosecuting them for criminal mis-appropriation. But this court as the executing court cannot pass a money decree in favour of the decree-holder after assessing the quantity of scrap C.R.No.768 of 2006 [4]

material and its value. This issue is answered accordingly." Learned counsel for the petitioner has contended that the executing Court has wrongly rejected the petitioner's claim. He states that the executing Court should have assessed the value of the scrap material which according to him was sold or mis-utilised by respondents 1 and 2 and thereafter awarded that assessed amount to the petitioner. For this argument, learned counsel placed reliance on the provisions of Order XXI Rule 31 of the Code of Civil Procedure.

Before examining the contention of learned counsel for the petitioner, it would be relevant to reproduce operative part of the award passed by the Arbitrator which is as hereunder:-

"I order the respondents to make the payment of Rs.3,66,342.91/- and Rs.40,000/- on account of security which has not been released so far. The scraps and other material which belongs to the applicant may also be allowed to be taken away from the respondents premises within ten days from the date of receipt of this order in the mills otherwise, the applicants will be entitled interest @ 12% from the date of award till the date of realization of above amount (406342.92)."

A perusal of the operative portion of the award would show that the Arbitrator had left the petitioner free to take away the scrap and other material belonging to him.

The award was only for a sum of Rs.4.06 lacs which admittedly the petitioner has received. In this view of the matter, I find no infirmity in the view taken by the executing Court. Nothing further remains to be paid to the petitioner in execution of the award. In case the petitioner feels that excess material was used by respondents 1 and 2, then he has to agitate against the same in appropriate proceedings. The executing Court had rightly concluded that in execution no money decree could be passed in favour of the petitioner after first adjudicating as to whether or not any material had been used by respondents 1 and 2 and if mis- C.R.No.768 of 2006 [5]

used, then to further adjudicate upon the value of the same. This can only be done in a substantial determination in a separate proceedings which the petitioner has been left free to initiate. I am also of the opinion that Order XXI Rule 31 of the Code of Civil Procedure would have no application to the facts of the present case.

No decree of any specific immovable property is in existence in favour of the petitioner which is a pre-requisite for attracting Rule 31 of Order XXI of the Code of Civil Procedure.

For the reasons aforementioned, I find no merit in this revision petition and the same is accordingly dismissed.

( P.S.PATWALIA )

August 21st, 2006. JUDGE

RC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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