Engineers India Ltd vs Haldia Petrochemicals Ltd

By an order dated 5th December, 2018, this Court ordered injunction and called upon the judgment debtor to file affidavit in opposition by 2nd January, 2019. No such affidavit has been filed.

In the third paragraph of the said order dated 5th December, 2018, this Court also granted liberty to the judgment debtor to seek variation of the said order in changed circumstances. No such application has been made.

Today in Court, learned counsel for the judgment debtor produces a deposit certificate in the name of Haldia Petrochemicals Ltd., the judgment debtor, A/c Engineers India Ltd. It is canvassed before this Court that the covering letter of the Bank indicates that the deposit of Rs.71 crores is "Haldia Petrochemicals Ltd. A/c Engineering India Ltd.". By reason thereof, counsel for the respondent claims bonafides and seeks stay of the execution proceedings.

Learned counsel, Mr. Choudhury, for the judgment debtor also tried to impress upon this Court by referrring to Order 21 Rules 26 and 29 of the Code of Civil Procedure, 1908 seeking stay of execution. In so far as rule 26 is concerned, no cause has been shown to this Court in any form to stay the execution proceeding.

In so far as rule 29 is concerned, it is submitted that there is another arbitration between the parties in which if the judgment debtor succeeds, it may be able to set off a portion of the amount due and payable to the decree holder. The plain and simple language of rule 29 indicates that the same is discretionery and is not mandatory. The subject matter of the other arbitration or any particulars thereof have not been brought on record by way of any pleading before this Court.

In this regard, counsel for the decree holder relies upon an unreported decision of a Division Bench of this Court, dated 13th December, 2018, passed in APO No.373 of 2018 (Pam Developers Pvt. Ltd. -vs- State of West Bengal & Ors.). The dicta of the Division Bench is abundantly clear that execution proceedings are not stayed and/or interfered with by the exeucting court except in the rarest of circumstances. There is no such circumstance at all demonstrated or available before this Court today on behalf of the judgment debtor.

In that view of the matter, this Court feels that an order of encashment of the deposit account of Rs.71 crores is just and appropriate.

This Court therefore directs the State Bank of India, Commercial Clients' Group Branch, Shreebriddhi Bhavan, 2nd floor, 34, Jwaharlal Nehru Road, Kolkata-700071, to preclose the deposit Account no.38161721530, dated 2nd January, 2019, and stated to be maturing on 2nd January, 2020, and to make over the proceeds of the same to the decree holder Engineers India Ltd. upon being presented by the latter. The maturity amount, together with interest from 2nd January, 2019 till the date of its presentation shall be credited to the account of the decree holder.

Upon receipt of the said sum of money, however, the decree holder shall not deal with the same for a period of 15 days from date thereof.

This period of 15 days is given to the judgment debtor since despite the order dated 5th December, 2018, no steps seem to have been taken to carry on the matter of execution any further beyond a Division Bench of this Court.

The judgment debtor may choose to file an affidavit in opposition within a period of three weeks from date. Reply, if any, may be filed within a week thereafter.

The original deposit receipt along with the covering letter of the Bank is handed over to the learned counsel, Sri Jayanta Kumar Mitra, appearing for the decree holder.

Let the matter be listed after four weeks.

All parties including the State Bank of India, Commercial Clients' Group Branch, Shreebriddhi Bhavan, Kolkata, shall act on the basis of a server copy of this order.