Full Text
HIGH COURT OF DELHI
Date of Decision: 10.10.2023
SANDEEP LAMBA ..... Appellant
Through: Mr. Sudhir Kumar, Mr. Vipin K.
Sharma and Mr. Manish Kumar, Advocates
Through: Ms. Zoya Mehta, Advocatealongwith Respondent in person
JUDGMENT
1. This execution first appeal filed under Order 21 Rule 58 read with Order 21 Rule 16 and Section 96 (1) of the Code of Civil Procedure, 1908 (‘CPC’) impugns the order dated 26.08.2023 passed by ADJ-06, West District, Tis HazariCourts, Delhi(‘ExecutingCourt’)in Ex. No. 1222/2018, titled as Ms. Dimple Mahna v. Bodysterone Foods Pvt. Ltd. & Ors., dismissing the application filed by the Appellant herein i.e., Judgment Debtor No.3(‘JD No.3’)underSection 47 ofCPC seeking recall and setting aside of the order dated 17.08.2023.
1.1. The Executing Court by a separate order dated 17.08.2023 has allowed an application filed by the Respondent No.1 i.e., decree holder seeking attachment oftheimmovableproperty of Appellant herein i.e., JD No.3.
1.2. The Appellantherein is Judgement DebtorNo. 3 and Respondent NO. 1 is the Decree Holder. For the sake of convenience, the parties are being referred to in this judgment as per their rank andstatus beforethe Executing Court.
2. The execution petitionEx. DJ No. 1222/2018 was filed for execution of order dated 10.05.2018 passed by National Company Law Tribunal (‘NCLT’) in case bearing no. 192/ND/2017, titled as Dimple Mahana v. Bodysterone Foods Pvt. Ltd.
2.1. The NCLT vide theorder dated 10.05.2018 held thattheJD Nos. 2 & 3 are liable to pay Rs. 15,00,000/- to the decree holder. It was further directed that in case of default the decree holder can seek recovery of the said amount by attachment of property of JD Nos. 2 & 3.
2.2. The ExecutingCourt appointed a local commissioner for preparing inventory list of the gymnasium equipment belonging to JD No. 2 and for auctioning the said equipment. The sale was concluded on 22.03.2020.
2.3. The JD No. 3 filed objection to the said execution petition, further objections were also filed by the said JD against the functioning and credentials oftheLocal Commissionerappointed in the execution petition. The ExecutingCourt videorder dated 20.03.2021 dismissed the objections of the JD No.3.The said order has become final.
2.4. Thereafter an application was filed by the decree holder for the attachmentofthe immovable property of JD No.3, which was allowed by theExecutingCourtvideorder dated17.08.2023. Further videthesaid order theExecutingCourt directed the decree holder to appear before the Court for appointment of bailiff on 25.08.2023.
2.5. The JD No. 3 on 26.08.2023 filed an application under Section 47 of the CPC seeking the recall/setting aside of the order dated 17.08.2023, which was dismissed on thesameday. TheJD No.3 has challenged the said order dated 26.08.2023 of the Executing Court in the present appeal.
3. The learned counselfor JD No. 3 states that the car belonging to JD No. 3 i.e., DL1CW0686, which was attached by the bailiff as per the order of the Executing Court and placed in the possession of the decree holder, should beevaluatedand in thefirst instance, the value of the said car (cost) should beadjusted with the decretal amount. He states that this should be donebeforeproceeding with theattachmentofJD No. 3’s immovable asset. 3.[1] He also raised an objection thatduringthe execution proceedings, the gymnasiumequipment ofJD No. 2 i.e., Hemant Lamba was soldat a meagre sum of Rs. 3,60,000/-, whereas the evaluated cost of the said gymnasium equipment should be Rs. 53,93,000/-.
4. In reply, learned counselfor decree holder states that she has placed on record an affidavit dated 22.09.2023 enclosing the cost evaluated by a renowned second-hand car dealer, Cars 24, of the car in possession of the decree holder and thesaid second-hand car dealer has tentatively assessed the value the car at Rs. 1,84,608/- to Rs. 2,15,722/-.
4.1. She states, however, the keys of the car to her knowledge have been deposited in theExecutingCourtand thatshedoes not have the possession of the said car keys. Shestates thatif spare keys are provided by JD No. 3, then inspection ofthecar can be offered to Cars24executive for an accurate assessment ofthe value; as the dealer would like to take a test drive of the car to assess its feasibility.
4.2. She further states that the Registration Certificate (‘RC’) of the car has not been providedby JD No. 3 and therefore, the car cannot be sold in the absence of the RC.
4.3. She, however, statesthatsheremains willingto disposeofthesaid car and adjust the payment towards the decretal amount.
5. In reply, the learned counsel for the JD No. 3 states on instructions from JD No. 3 that hedoes not have any car keys in his possession, as the same is deposited before the Executing Court.
6. This court has heard the parties and perused the record.
7. At this stage, it was putto thepartiesby the Court that decree holder can engage the services of an authorised key maker, who can make a duplicate key for the car, so that, Respondent No.1 can offer physical inspection of the car to Cars 24 executive for accurate evaluation.
7.1. The learned counsel for the JD No.3 has objected to the proposed modus on theplea thathis (JD No. 3’s) laptop and documents are lying in thecar. He, therefore, opposes the direction for appointing a duplicate key maker.
8. In the circumstances as discussed above, it has become evident that the JD No. 3 does not wish to cooperate in true valuation of the car, therefore, theoffer madeby theAppellant thatthevalueof thecar should be adjusted against the decretal amount cannot be accepted at this stage.
8.1. Further, thisCourt notes from thepleadingsin this appeal, specifically at paragraph ‘17’,theAppellanthas admitted in this appeal that he has two sets of keys of the car;however, in thecourseof hearing, he refused to offer the spare keys for the purpose of valuation of the car by Cars 24 and therefore, this Courtis not satisfied with the bona fide of the Appellant. If the car cannot be evaluated, it cannot be sold at its accurate value. Therefore, the Executing Court has not committed any error in not proceedingwith thesaleof thecar as the non-cooperationofthe JD No. 3 is writ large.
9. It is apposite at this stage to note that JD No. 2 itself has not raised any objection to the sale of the gymnasium equipment, owned by him, by the Local Commissioner and its subsequent acceptance by the Executing Court.
9.1. This Court further notes that the Executing Court in the impugned order dated 26.08.2023has returned the categorical finding with respect to thedue participation ofboth JD No. 2 and JD No. 3 in the proceedings for sale of thegymnasium equipment. Therelevantportionoftheorder reads as under: - “12) As far as the objection mentioned in para 2 of the application of JD no.3 is concerned, it is contended by the applicant JD. No.3 that the JD no.2 was never brought before the court in the execution petition and was never heard on any objections. However, order sheet dated 17-10-2020, 18-02- 2021 & 20-03-2021 reveal that the JD no.2 was produced from judicial custody and the counsel Sh. Vipin Kumar Sharma also appeared for the JD no.2 as his counsel. It is also relevant to mention here that vide order dated 20-03-2021 ld. Predecessor of this court observed in the order sheet that JD no.2 was represented by counsel and execution proceedings were not going-on at the back of JD no.2. The records also reveal that the auction order of movable property of the Gym of JD no.2 was made in the presence of JD no.2 and wife of JD no.3. In view of the above observation, the said objection of the JD no.2 is not tenable. Same is dismissed.” (Emphasis supplied)
9.2. This Courtis of the opinionthat JD No. 3 herein has no locus to raise objections with respect to the sale of the gymnasium equipment in view of theaforesaid findings oftheExecutingCourt. Even otherwise JD No. 3 has no concern with the said equipment.
10. No other arguments were raised by the counsel for the JD No.3. Accordingly, theAppellanthas been unableto pointout anyinfirmity in the impugned orders dated 26.08.2023 and 17.08.2023.
11. In this regard, beforeconcluding, it would berelevant to note that the objections (1st) of JD No. 3 to the execution of the decree was initially dismissed by the Executing Court vide a detailed order dated 20.03.2021. The said order was not challenged and the same has become final.
11.1. The JD No. 3, thereafter, sought to stalltheexecution by filing second (2nd) objections, which weredismissedvideorder dated17.08.2023and then filed third (3rd) objections, which came to be dismissed on 26.08.2023.
11.2. The present proceedings arethereforea fourth(4th) roundof litigation by JD No. 3 to obstruct the execution of the decree.
11.3. The decree was passed in favourofRespondentNo. 1 on 10.05.2018 for a sum of Rs. 15,00,000/- and as per the record of the Executing Court, RespondentNo. 1 has till dateonly recovered an amount of Rs. 3,60,000/-, Rs. 10,710/- and Rs. 21,332/-.
11.4. This Court, therefore, agrees with the finding of the Executing Court that JD No. 3 has been filing successive applications to merely delay the execution proceedings. Even beforethis Court, as notedhereinbeforeJD NO. 3 after consenting to the sale of his car on 19.09.2023 today during the course of the hearing raised objections to its evaluation, which are not genuine and clearly intended to prolong the proceedings.
12. The present appeal is accordingly dismissed. Pending application stands disposed of.