IN THE COURT OF CITY CIVIL & SESSIONS JUDGE, CCH-84

COMMERCIAL COURT AT, BENGALURU

COM.EX.68/2021

BETWEEN

REFEX ENERGY LIMITED …Decree Holder

AND

BHARATH HEAVY ELECTRICAL LIMITED …Judgment Debtor

STATEMENT OF OBJECTIONS FILED BY THE JUDGMENT DEBTOR

TO THE AMENDMENT APPLICATION FILED BY THE DECREE
HOLDER UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF
THE CODE OF CIVIL PROCEDURE, 1908

1. At the outset, the Judgment Debtor submits that all averments and contentions
in the application are frivolous, baseless, false and are denied. The application
deserves to be dismissed at the outset with exemplary costs.

2. The proposed amendment would change the entire nature of the claims, and
the claims which are under adjudication cannot be included by the Decree holder
by way of an amendment.

3. The amendment sought by the Decree Holder must have been included in the
petition at the time of filing of suit and it cannot be now included by way of an
amendment.

4. The alleged Decree Holder is not entitled to maintain the present execution
application, as there is no decree or award, which has attained finality. The award
passed by Arbitration Tribunal dated 23-05-2018, which is sought to be executed is
pending adjudication by this Hon’ble Court, in Arbitration Suit 176/2018 which is
connected with the appeal filed by the Judgment Debtor herein in the Arbitration
Suit 180/2018.

5. As stated above, the present application is not maintainable as it has been filed
during the pendency of an application for setting aside filed by the Judgment
Debtor under section 34 of the Arbitration and Conciliation Act 1996. The
Judgment Debtor has filed an application for setting aside the Award which is
pending before this Hon’ble Court, and is registered as AS 180/2018. The said suit
is pending for final hearing and as such until disposal of the said suit, this
application seeking execution of the award which is under challenge is not
maintainable and the present amendment application is also liable to be dismissed.

6. The projection of 7,01,33,671 in execution petition is wrong and misleading

because as per arbitration award the amount of 7,01,33,671 is subjective to various
conditions given in issue 1 of the award and not exclusive. As per the award the
Judgment Debtor has to examine the outstanding payment overdue to sub suppliers
of the Decree holder at site and settle such outstanding due directly to sub suppliers
with the Concurrence of the Decree Holder. If any amount is paid therein in this
regard then the same may be reduced from the payments now. Therefore this
amount is not determinable

calculations made therein makes it incomprehensive.

 
The award amount stated by Decree Holder in execution petition is half-truth. As
per Arbitration award the amount awarded is as follows:-
Outstanding dues awarded in favour of Decree 7,01,33,671
Holder

(Less)Counter claims awarded in favour of

Judgment Debtor 3,75,52,151

Total = 3,25,81,520

7. The application includes substitution of increase in interest amount and the

substitution of total amount in the petition which is denied and mentions to
substitute the total amount which are all false and denied and which is not
permissible as it changes the entire nature of the suit and liable to be dismissed.

8. If the application is allowed great hardship and loss will be caused to the
judgment debtor and if not allowed no injury would be caused to the Decree
holder.

Wherefore, this Hon’ble Court be pleased to dismiss the application under reply
with exemplary cost in the interest of justice and equity.

Bangalore
Date: Judgment Debtor