BIRAT CHANDRA DAGARA Vs. ODISHA MANGANESE & MINERALS LIMITED
LAWS(ORI)-2021-3-26
HIGH COURT OF ORISSA
Decided on March 30,2021

BIRAT CHANDRA DAGARA Appellant
VERSUS
Odisha Manganese And Minerals Limited Respondents

JUDGEMENT

K.R. Mohapatra,J. - (1.) The Petitioner in this CMP calls in question the order dated 5th March, 2021 (Annexure-13) passed by learned District Judge, Mayurbhanj at Baripada in Execution Case No. 1 of 2019, whereby he directed the properties under Schedules 'A' and 'B' kept under attachment to be sold to execute the decree. He further appointed learned Civil Judge (Senior Division), Rairangpur to conduct the sale by putting the attached property in public auction in accordance with law.
(2.) The averments made in the CMP reveal that the Petitioner (for short 'J.Dr.') is the lessee in respect of Suleipat Iron Ore Mine situated in village Hatisikly under Badampahad Tahasil in the District of Mayurbhanj. In order to set up a steel plant, he executed a Joint Venture Agreement (JVA) with the Opposite Party (for short 'D.Hr.') on 12th April, 2010. On the very same day, a raising contract was also executed between the J.Dr. and D.Hr. permitting later to raise iron ores from the mine as per the terms and conditions stated therein. As per Clause-4.5 of the JVA under Annexure-1, the J.Dr. also executed a registered Power of Attorney in favour of D.Hr. on 12th April, 2010. As the D.Hr. did not set up the steel plant at Rairangpur as agreed upon by the parties, a dispute arose between the J.Dr. and D.Hr. Consequently, the D.Hr. moved this Court in ARBP No. 14 of 2015 under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitrator. By order dated 7th April, 2016, Hon'ble Justice B.P. Das (Retd.) was appointed as the sole Arbitrator by Hon'ble Chief Justice of this Court. The said order was assailed in SLP (C) Nos.13599, 13803 and 13824 of 2016 before the Hon'ble Supreme Court. While confirming the order for appointment of an Arbitrator, Hon'ble Supreme Court appointed Hon'ble Justice Bikramjit Sen (Retd.) as the sole Arbitrator in place of Justice B.P. Das (Retd.). However, a settlement was arrived at between the parties in the arbitration proceeding and both the parties filed terms of settlement before the Hon'ble Arbitrator on 13th June, 2017. Accordingly, vide order dated 20th January, 2018, Hon'ble Arbitrator disposed of the arbitration proceeding in terms of the said compromise/settlement by passing a Consent Award (Annexure-3). Alleging non-compliance of the terms of settlement, the D.Hr. initiated execution proceeding before learned District Judge, Mayurbhanj at Baripada with a prayer to direct the D.Hr. to perform his part of the obligation under the Consent Award dated 20th January, 2018 and for attachment of 'A' and 'B' schedule properties of the execution petition and also for detention of the J.Dr. in civil prison, which was registered as Execution Case No.1 of 2019. On 7th February, 2019, learned executing Court passed an order restraining the J.Dr. from operating the mine in any manner. However, on the application of the J.Dr., learned executing Court vide its order dated 2nd April, 2019 recalled the restraint order dated 7th February, 2019 subject to deposit of Rs.5.00 crores by the J.Dr. The D.Hr. being dissatisfied with the order dated 2nd April, 2019 filed W.P.(C) No. 7445 of 2019 before this Court. The J.Dr. also filed W.P.(C) No.7537 of 2019 assailing the said order dated 2nd April, 2019 directing him to deposit Rs.5.00 crores. This Court upon hearing learned counsel for the parties set aside the order dated 2nd April, 2019 passed by learned executing court and restored the order dated 7th February, 2019. Assailing the same, the J.Dr. preferred SLP (C) No. 16647 of 2019 before the Hon'ble Supreme Court, which was dismissed vide order dated 2nd August, 2019.
(3.) Thereafter, the J.Dr. filed an application before the executing court in the tune of a petition under Section 47 C.P.C. questioning the executability of the Consent Award and jurisdiction of learned executing Court to entertain such an application. By order dated 13th September, 2019, learned executing Court held that the Consent Award is executable and the execution proceeding is maintainable in view of the provisions of Section 36 of the Act read with Order XXI Rule 32 C.P.C. The J.Dr. assailing the said order filed CMP No. 1062 of 2019, which was dismissed vide order dated 7th January, 2020 and a direction was issued to complete the execution proceeding within a period of six weeks. The J.Dr. being dissatisfied with the said order preferred SLP(C) No. 892 of 2020 before the Hon'ble Supreme Court, which was dismissed vide order dated 20th January, 2020. Accordingly, learned executing Court attached 'B' schedule properties vide order dated 24th January, 2020 and physical attachment of 'B' schedule properties was completed on 19th March, 2020. Likewise, 'A' schedule properties was attached on 21st July, 2020 and its physical attachment was completed on 31st July, 2020. Assailing the said attachment of Schedule 'A' property, part of which is the mine, the J.Dr. preferred W.P.(C) No.17649 of 2020, which is pending for adjudication. By order dated 28th July, 2020, this Court passed an interim order to the effect that the order of attachment of 'A' schedule properties dated 21st July, 2020 shall be subject to the result of the said writ petition. While the matter stood thus, the D.Hr. filed an application on 2nd February, 2021 for sale of attached 'A' and 'B' schedule properties (Annexure-11). Likewise, the J.Dr. also filed an application on 2nd February, 2021 (Annexure-9) for lifting the attachment of 'A' schedule properties on the ground that statutory period of six months had already expired. The J.Dr. also filed an objection to the application under Annexure-11 stating that he had performed his part of the obligation as per the Consent Award and thus, has satisfied the decree. A specific stand has been taken by the J.Dr. to the effect that since six months has already expired from the date of attachment of the schedule properties, no petition for sale will be maintainable. Learned District Judge (executing Court) considering the rival contentions of the parties held the petition for sale of schedule properties to be maintainable and passed the impugned order. Hence, this CMP has been filed assailing the said order under Annexure-13.;


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