- Proper Court of execution of award passed by arbitrator is the place in whose jurisdiction the award passed.
- Decree against judgment debtor by attachment and auction of property can be executed only be the Court in which such property is situated.
- The Court in whose jurisdiction the award is passed will transfer the decree under Order XXI Rule 5 & 6 of Civil Procedure Code, 1908 to the Court where the property is situated. The Court to which decree is transferred for execution will have all the power of the transferer Court.
- The decree holder can seek issue of precepts by the Court which has jurisdiction over place of arbitration. You can also seek transfer of decree and attach immovable property immediately.
- Arbitration proceedings of MSME are governed by Arbitration and Conciliation Act, 1996. Award passed is regulated under Civil Procedure Code, 1908.
- Court at place of arbitration will be the court of first instance.
- Transfer of decree means transfer of decree to Court where it is to be executed for recovery of decree amount.
- No Court has power to refuse transfer of decree to proper Court for execution .
- When a decree is passed the determination last part of question does not arise.
Execution of a decree passed by HMSEFC Council
I want the consultancy about the Execution of a decree passed by HMSEFC Council Panchkula, Haryana under MSME act 2006 specially developed for delayed payment recovery of MSME sector. Following are the important points and facts regarding this matter : 1.There is a decree in our firm`s favour passed by the HMSEFC Council Panchkula, Haryana. It has been passed under MSME act 2006 through arbitration by an Arbitrator appointed by this council and whose office is in Faridabad, Haryana and to whom it was sent by HMSEFC Council. Here I want to know which is the `Court of the first instance` in this matter. 2. The judgement debtor`s property and plant are in District G.B. Nagar, UP ( Uttar Pradesh) but I want this decree to be executed in the Faridabad civil court itself which is nearest to our firm and we know it very well . Please tell me is there some legal procedure /option by which may I get this decree be executed by the `Court of the first instance` which is most probably Faridabad Civil court in this matter? 3. Can the `Court of the first instance` use the Precept facility to send it to the court where the property, Manufacturing unit of judgment debtor exist and which can attach the property. 4. As per my information Arbitration Courts under MSMEFC Councils are Tribunals. Is it correct ? Here I want to know whether decree passed by MSMEFC Councils are like or equivalent to decree passed by any civil court in terms of legal aspects/matters . And here further I want to know whether the decree passed by these Tribunals in a particular city is equivalent the decree passed by `Court of the first instance` in the same city, if so under which legal law or rule is this? 5. Nowadays Most of Miniature and Small scale type companies are filing their cases for recovery in State MSEFC Councils which are mostly in the capital city of each state because of very quick decision which happens in maximum 5 to 6 months period as well as higher rate of interest are receivable. Clarify to me about the decree passed by Arbitrator under HMSEFC Council Panchkula in Faridabad city ; will the district Civil Court Faridabad be assumed as `Court of the first instance` for this decree under Indian legal procedure? 6. What is the meaning of Transfer of a decree for execution to another court other than `Court of the first instance? 7. Can the `Court of the first instance` where the application has been filed by Decree holder for execution of decree but where the property and Manufacturing unit of judgment debtor do not exist deny the execution of the decree and ask Decree holder to withdraw the execution case after knowing about property location ?
Asked 3 years ago in Civil Law
11 Answers
Subject: Illegally disposed off delayed payment recovery case by HMSEFC council Panchkula The case has been disposed off illegally by HMSEFC council Panchkula during conciliation stage itself . In this case last invoice dated 1-6-2017 which brought this case in limitation period was more than 2.5 years later than any other invoice involved with this Buyer in this matter. Receiver’s signature on behalf of buyer on this invoice and related challan are of an employee Bhupendra of buyer Achievers Builders Pvt. Limited . When this invoice along with material was sent to buyer Achievers Builders, it was received and signed by an employee Bhupendra who was working there then and even after this event/incident our one employee had met him (Bhupendra) in later part of year 2017 and he was still working there. At present we do not know about his whereabout. During the conciliation process of this case the buyer objected about this particular invoice and said that this invoice does not belong to his organisation as employee Bhupendra whose signature are on this invoice never worked in buyer organisation and this is a fake invoice to avoid our payment by using 3 years Limitation period technique while we had provided the service. We strongly denied buyer`s objection and we requested the HMSEFC facilitation council to find this information from related department like EPF department or at least take the affidavit from buyer in this matter so that we may take legal action against this buyer for this fraud but Council did not accept our request and disposed off the case without taking any authenticated document from the buyer while according to the MSME act 2006 the onus is on the of proving something wrong if the buyer thinks so. So, we request you instruct the council to revive our case and Council should find the information about the employee from the EPF department where it will be definitely available or from any other suitable source.
Asked 3 years ago
A dealer purchased some material from our company for its various customers but did not make our full payment . After the warrantee had finished for 83 % supplied material, he filed a suit/case against us saying that quality was very poor and because of this his customers suffered financially and his all made payments be returned while he continued to purchase for 2.75 years and warranty of more than 83% material had already finished and 92% warrantee of first-time supplied material against all purchase orders also had finished. He has shown too many emails after we stopped the supply to him by giving him notice in writing in the period of 2.75 years while he was purchasing the material plus in next 1 more year after stoppage of supplies to him and when he had filed the suite. Emails being actually written to us were less than 10 % of the total emails being shown as sent. While these 10 % emails were regarding material purchase, supply, installation etc. After studying and checking e-mails we found that 83% email which he has shown in this case in the court are fake which were never sent. Here I want to know whether Emails can be manipulated on the laptop or computer and can be shown as being sent while actually are not being sent. I want to know further How to check authenticity of these emails sent on our yahoo email id from his rediffmail.com email id. Whether Yahoo and Rediff can help in this matter? Here I want to know further can court call them as per our request to court. Can you suggest any other source which may check truth of these E mails and whose report is acceptable by the court.
Asked 3 years ago
1) make an application for execution of decree in Faridabad
2) decree would be transferred in court where property is situated .in present case property is situated in pant nagar UP
3) it is equivant to decree passed by civil courts
4) court cannot ask you to withdraw application for execution
Electronic records being more prone to altering, modification, transposition, extraction, should be taken into account as evidence after careful examination as otherwise it can result in tragedy of equity.”
2)Section 65-B of the Evidence Act, which consists of four sub-sections, expands the meaning of “computer output by referring it as the original device or machine from which the end result was procured. It specifies that the onus of proving its originality lies on the person who sought to produce it as evidence.
3) “In assessing the evidential weight the court ought to consider the nature of the route in which the data message was made, secured or passed on; “the trustworthiness of the path in which the authenticity of the data message was kept up; the path in which the originator of the data message or electronic record was recognized; and whatever other noteworthy variables.”
The individual creating the email as proof must show who or what began the email and whether the substance is finished in the structure proposed, free from mistake or manufacture.
2) If you see a question mark next to the sender's name, the message isn't authenticated. When an email isn't authenticated, that means Gmail doesn't know if the message is coming from the person who appears to be sending it. If you see this, be careful about replying or downloading any attachments.
Dear Client,
In order to verify an email as authentic, you have to look at the sending email address and also the email header to be really safe. The ability to distinguish between a real email and a fake one also depends on your email client.
Thank you.
1. The first court would be the HMSEFC Council Panchkula, Haryana under MSME act 2006 appointed Arbitrator.
2. The judgment or decree can be executed through a court competent having jurisdiction within which the property is situated and not anyone's will or convenience.
3. The Arbitrator's task is to conduct the case and pass an order/decree, the decree holder can execute the decree through an appropriate court
4. The execution proceedings shall be made as per the provisions of civil procedure court in order to execute the decree granted by the Arbitrator.
5. If the property is situated elsewhere then the execution petition can be filed within the territorial jurisdiction where the petition mentioned property is situated, if the proeprty do not come within the jurisdiction of the Faridabad, then the EP cannot be entertained by a court located in Faridabad.
6. CPC Section 39. Transfer of decree.
(1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court [of competent jurisdiction],
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]
7. See the above answer.
At this stage when the decree has been passed, if you are aggrieved over the decision then you have to prefer an appeal agaisnt the decision before the appellate forum and there is no point in discussing about the irregularities committed by this forum in this regard at this stage.
At this stage when the decree has been passed, if you are aggrieved over the decision then you have to prefer an appeal agaisnt the decision before the appellate forum and there is no point in discussing about the irregularities committed by this forum in this regard at this stage.
At this stage when the decree has been passed, if you are aggrieved over the decision then you have to prefer an appeal agaisnt the decision before the appellate forum and there is no point in discussing about the irregularities committed by this forum in this regard at this stage.
Actually emails or any other social media evidences are not admissible as primary evidence before court of law or any forum until they are accompanied with a certificate from an expert to prove its genuineness.
You can very well object to the same at the time of cross examination during the trial proceedings.
Fake ids/fake screen shots can be created. To ascertain the authenticity, you need to cheque in box of receiver or sent box of the sender. Such inside application of service provider like google, gmail, yahoo, Rediff cannot be manipulated. Produce your system in Court and seek production of his system in the Court, the cat will be out of bag.
Such forgery can be very much established. You can also seek criminal case against under Section 471 of Indian Penal Code, 1860 against him by the Court in which such forged mails are filed.
Yes you can seek the same through a court order for direction to said email provider to provide certificate
