NARENDRA NATH TIWARI, J. - (1.) IN this writ application the petitioner has prayed for quashing the order dated 12.3.2004 passed in Execution Case No. 13 of 2000 whereby petition filed by the petitioner under Order XXI, Rule 99 read with Rule 101 of Civil Procedure Code has been rejected holding the same not maintainable.
(2.) ADMITTEDLY , the petitioner was not a party to the arbitration award dated 1.6.2000 which was sought to be executed in Execution Case No. 13 of 2000 in the Court of Sub -Ordinate Judge, 1st Court, Dhanbad. The petitioner 'scase is that the petitioner is a Corporation, a Government Company, and it had a retail outlet at Belchari in Dhanbad District. In the year 1995, the petitioner -company had allotted retail outlet to respondent No. 2, Ammlal Kisku under the Scheduled Tribe category, on certain terms and conditions described in the letter of offer dated 4.9.1995. Respondent No. 2 is merely a licensee to run the said retail outlet. It was stipulated in term No. 18 that the respondent No. 2 shall not deliver possession to any other person of the said outlet situate over the land taken on lease for 30 years from the respondent No. 1, Mr. Shiv Shankar Singh by a registered indenture of lease dated 31.12.1996. It was also the term that respondent No. 2 shall not induct any partner. The further case is that a complaint was received in the Ministry of Petroleum and Natural Gas which was followed by an inquiry. It was found in the inquiry that the respondent No. 2, in violation of the terms and conditions of the lease agreement, entered into a partnership and executed a power -of -attorney in favour of the respondent No. 1 giving him a right to operate the business. The petitioner -company thereupon directed respondent No. 2 to revoke the said power -of -attorney given in favour of the respondent No. 1 and to freeze the bank account which was being operated jointly by the respondent Nos. 1 and 2 under an agreement of partnership. Thereafter respondent No. 2 submitted an affidavit confirming that the same will not be repeated in future. The company had then given further opportunity to the respondent No. 2, as he is a member of Scheduled Tribe. However, dispute arose between the respondent Nos. 1 and 2 in respect of the said partnership which led to a reference petition under Sec.11 of the Arbitration and Conciliation Act, 1996 before the Patna High Court, which was registered as Request Case No. 2 of 1998. In the said case, an order was passed to refer the dispute to arbitrator. In the said arbitration proceeding the respondent No. 2 did not appear. Even after the reference, the respondent No. 2 did not bring relevant facts to the notice of the arbitrator and an award (Annexure -3) dated 1.6.2000 was passed in collusion. The claim of the respondent No. 1 was that he had entered into a partnership with the respondent No. 2 for carrying business in Petrol, Diesel, Lubricants and likes under the name and style of M/s. Kisku @ K. Automobiles by virtue a deed of partnership dated 19.1.1997 and for which respondent No. 2 provided land and the respondent No. 1 invested a. sum of Rs. six lakhs by way of working capital. The respondent Nos. 1 and 2 had obtained registration certificate under the Bihar Sales Tax Act and the outlet was operated by the said partnership firm from 19.1.1997 to 30.6.1997. During the said period the business of the firm flourished and registered a record sale of Rs. 1,41,24,640.61 p. resulting into a net profit of Rs. 1,68,356.29 p. The respondent No. 2, however, started depriving the respondent No. 1 of his share in the profit, which led to the said dispute. The arbitrator subsequently rendered the award in favour of the respondent No. 1 and a sum of Rs. 22,53,983/ - was awarded to the respondent No. 1 which included the amount invested by him, profit upto 30.3.2000 at the rate of Rs. 21,000.00 per month and interest at the rate of 10% per annum on the capital from 19.1.1997 to 30.3.2000 and the said amount of Rs. 22,53,983/ -was held recoverable by respondent No. 1 from respondent No. 2. In the award the arbitrator also suggested for appointment of a receiver to run the business of petrol pump till realisation of the awarded amount. The petitioner contended that the award and appointment of receiver in absence of the petitioner is improper and unsustainable. The execution proceeding was levied on the basis of the said award being Execution Case No. 13 of 2000. The executing Court appointed one Sri Mahadeo Pandit, an Advocate of Dhanbad as Receiver. On coming to know about the said appointment of receiver the petitioner -company filed a petitioner under Order XXI, Rule 99 read with Rule 101 of Civil Procedure Code in the executing Court 1st Subordinate Judge, Dhanbad. The said petition was registered as Misc. Case No. 21 of 2004. It was contended that the petrol pump belonged to the petitioner -company and there cannot be any partnership agreement between the respondent Nos. 1 and 2 in respect of the same. The petitioner -company has only given licence to the award debtor to operate the said business, in Scheduled Tribe category. The company cannot be compelled to hand over the possession of the petrol pump to a third person or to a receiver. The award has been illegally passed for realisation of the awarded sum from the business of the petrol pump directing the petitioner -company to cooperate. According to the petitioner, an action is being taken for terminating the dealership of the award debtor and in that view execution case is not maintainable and is liable to be dismissed.
(3.) A rejoinder to the said petition was filed on behalf of the award holder, stating therein that the petition under the provisions of Order XXI, Rule 99 read with Rule 101 Civil Procedure Code is not at all maintainable and the same has been filed at the instance of the respondent No. 2 in order to delay the recovery of the awarded sum. It was stated that when the objection was filed on behalf of the respondent No. 2 in the execution case, it was rejected by the Court. The instant petition was got filed by him through the said company and as such the said application is by way of a sheer mala fide, collusive and deliberately filed with ulterior intention. It was stated that earlier, an objection was filed under Sec. 47 of Civil Procedure Code by the award debtor which was dismissed after hearing. Against the said order Civil Revision No. 308 of 2003 (R) was filed in the High Court which was also dismissed by order dated 23.7.2003. On 20.9.2003 an order was then passed for realisation of the awarded amount in favour of the award holder. By order dated 12.3.2004 Sri Mahadeo Pandit, Advocate, Dhanbad was appointed receiver, in accordance with the term of the award, to run the business of the respondent No. 2 till the realisation of awarded sum. The petitioner has granted a licence to the award debtor to do the said business of the petrol pump. The petitioner has nothing to do with the dispute of partnership between the respondent Nos. 1 and 2 or with the said award and appointment of the receiver for realising the awarded sum by running the said business.;