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HIGH COURT OF DELHI
Date of Decision: 16.08.2023
M/S ZEAL POLYRUBS PVT LTD ..... Petitioner
Through: Mr. Kirti Uppal, Sr. Advocate with Mr. Yashartha Gupta, Mr. Ashish Pathak andMr. AdityaRaj, Advocates
Through: Mr. Natwar Rai and Ms. Aliya Parveen, Advocates
JUDGMENT
Allowed, subject to all just exceptions.
Accordingly, the present applications stand disposed of.
1. This petition filed under Article 227 of the Constitution of India impugnstheorderdated 10.08.2023passedby the DistrictJudge, North West District, Rohini Courts, Delhi (‘Executing Court’) in Execution Civil NO. 228/2021 titled as “M/s Spinks India vs. M/s Zeal Polyrubs Pvt. Ltd.” whereby theExecutingCourt declined to grant stayof execution of warrants of arrest issuedagainstthe Petitioner i.e., Judgement Debtor vide order dated 21.07.2023.
1.1. The Executing Court vide order dated 21.07.2023 issued warrants of arrestagainst theJudgementDebtorin exerciseofits powerunderOrder XXI Rule 41 (2) & (3) Code of Civil Procedure, 1908 (‘CPC’).
2. The learned senior counselfor thePetitioner states thattheorderdated 21.07.2023was issued in view of the fact that thePetitioner herein hadfailed to file its affidavit of assets as per Order XXI Rule 41 (2) CPC.
2.1. He states that, however, subsequently the Petitioner herein along with the application seekingrecall of the order dated 21.07.2023 filed an affidavit of assets, which was placed on record before the Executing Court on 10.08.2023, when the matter was taken up for hearing.
2.2. He states that with the filing of the affidavit of assets, the direction issued by the ExecutingCourtfor issuanceof warrants of arrestshould have been stayed, pendingthefinaldeterminationofthesaid application for recall.
2.3. He relies upon the judgement of this Court in “M/s Bhandari Engineers & Builders Pvt. Ltd. Vs. M/s Maharia RajJointVenture &Ors.” 2019:DHC:6663;reported in EX. P. 275of2012dated 05.10.2019;andmore specifically paragraph ‘54’ and ‘55’ therein to contend that the Judgement Debtor (‘JD’) cannot be committed to the civil prison unless the Executing Court returns a finding in terms of para ‘54’and ‘55’ therein. The relevant extract of the judgment reads as under:
2.4. He further relies upontheaffidavit ofassets andstates thatat entry NO. 26, the Petitioner herein has declared that it has as on date trade receivables to the tune of Rs. 67.83 lakhs. He states, however, the Executing Court will have to exercise its jurisdiction under Order XXI Rule 46 and 46A to attach the said receivables.
2.5. He states on instructions that the said trade receivables are unencumbered and are due and receivable by the JD as on date.
3. The learned counsel for the Respondent, who appears on advance noticestates thattheorder dated 21.07.2023issuedby theExecutingCourtis correct in law and fact. He statesthat thePetitionerherein wilfully defaulted in complyingwith thedirectionsissued by theExecutingCourt as earlyas on 06.01.2023directingthePetitioner hereinto fileits affidavit ofassetsin terms of Order XXI Rule 41 (2).
3.1. He states that the objections filed by the Petitioner were dismissed on 25.02.2023and sincethen the Petitioner has wilfully not filed its affidavit of assets incompliancewith thedirections issued videorder dated 06.01.2023.
3.2. He states the Executing Court issued the directions for arrest of the officers of the JD for wilfully failing to file the affidavit of assets on 25.02.2023.
3.3. He states that even after 25.02.2023 though the matter was listed on several dates before the Executing Court; no compliance of the directions issued by ExecutingCourt on 06.01.2023 wascarried out by the Petitioner.
3.4. He states it is in this background that on 21.07.2023, the Executing Court issued fresh directions to the Respondent herein to take steps for issuance of warrants of arrest of the officers of JD. He states that the order dated 21.07.2023 is a reiteration of the said order dated 25.02.2023.
3.5. He statesit is only underthepain oftheorder dated21.07.2023thatthe Petitioner herein belatedly on10.08.2023filed theapplicationfor recallofthe order dated 21.07.2023 and enclosed with it an affidavit of assets.
3.6. He states that it is the stand of the Respondent herein that the said affidavit ofassetssuffersfromsuppression ofmaterial facts. Hestates that the declarationmadeby the Petitioner at entry No. 44 oftheaffidavit is falseand incorrect to their knowledge.
3.7. He statesthattheRespondenthereinis personally awareaboutthree(3) criminalcomplaints, which are pendingagainst thePetitioner, which has not been disclosed and in addition, there are proceedings pending against the Petitioner beforetheExecutingCourt andthesamejudgewhich havealsonot been disclosed. He states that Respondent has not had an opportunity to file his objections to the said affidavit filed on 10.08.2023.
3.8. He further statesthattheaddress mentionedin theaffidavit of the JD is incorrect as the JD was not found to be operating from the said address, when the Court Officer visited the said premises on 11.08.2023.
4. This Court has considered the submissions of the parties.
5. The Petitioner has not disputed that the initial order of the Executing Court for filing the affidavit of assets was issued to the Petitioner herein on 06.01.2023 and the said direction of the Executing Court remained not complied with till 10.08.2023.
6. It is also come on record that the Executing Court dismissed the objections filed by thePetitioneron 25.02.2023with imposition ofcostofRs. 20,000/-. Thesaid costs have also not been paid by the Petitioner till date.
7. In theaforesaid facts and circumstances,thewilful non-complianceof thePetitioner oftheordersanddirections oftheExecutingCourt is writlarge. In these circumstances, the issuance of the order dated 21.07.2023 for the arrestwarrantsoftheJudgement Debtor is in accordancewith Order XXIRule 41 (2) & (3) CPC and it therefore, suffers from no error of law.
7.1. At this stage, thelearned seniorcounselfor thePetitioner statesthat the cost of Rs. 20,000/- imposed vide order dated 25.02.2023 will be paid to the Respondent within a period of three (3) days from today i.e., on or before 19.08.2023.
8. Further, thelearnedcounselfortheRespondent statesthatthePetitioner has failed to file an affidavit with respect to the payments purported to have been made by the Petitioner’s herein to its creditors, which was specifically taken note of by the Executing Court at paragraph ‘10’ of the order dated 25.02.2023.
8.1. Thelearned counselfor thePetitionerstatesthattheaffidavit disclosing the said details of payments made to the creditors will be filed before the Executing Court within three (3) days from today i.e., on or before 19.08.2023.
9. This Court has considered the submissions of the parties.
10. The Petitioner has filed an affidavit of assets dated 09.08.2023 and at entry ‘1’, it is stated that the Petitioner has sufficient assets to satisfy the decree. Thelearned senior counselhas reiterated thesaid statement and relied uponthesaid assertionmadein theaffidavit. Herelies on thedeclarationthat the Petitioner has existing trade receivables of Rs. 67.83 lacs and states that the same are sufficient to satisfy the decree.
10.1. The statement of the learned senior counsel for the Petitioner that the receivables of Rs. 67.83lacs are unencumbered as wellas dueand receivable by theJD as on dateand thesamehavenotbeen recovered by theJD from its debtors is taken on record and the Petitioner is bound down to the said statement.
11. In view of the fact that the Petitioner has now filed the affidavit dated 09.08.2023 before the Executing Court along with the application seeking recall of the order dated 21.07.2022; and the Executing Court has fixed the matter on 25.08.2023 for adjudicatingupon theapplication of the Petitioner; this Court deems it appropriateto staytheoperation ofwarrants ofarrest until the Executing Court decides the said application on 25.08.2023.
12. This Courthas passedtheaforesaid stayorderin view ofthestatements madeby thesenior counselfor thePetitioner,madeon instructionsduringthe course of the arguments. It is directed that if the statement made by the Petitioner in its affidavit and beforetheCourttoday is proved to be false, the Executing Court is directed to initiate appropriate proceedings against the Petitioner and its officers for making false statement on oath.
13. The learned counsel for the Respondent states that he will file his objections to the said affidavit dated 09.08.2023 and the proposed affidavit referred to in paragraph[8].[1] hereinabove, withina period of three(3)days i.e., on or before 23.08.2023.
13.1. It is clarified that no right to file rejoinder is being reserved to the Petitioner herein.
14. The Executing Court is requested to consider the affidavit dated 09.08.2023, theadditionalaffidavitoftheJD filed in terms ofpara[8].[1] and the reply filed by the Respondent to the said affidavits on 25.08.2023.
14.1. In view of the fact that the Petitioner itself places reliance upon the judgement of this Court in M/s Bhandari Engineers & Builders Pvt. Ltd. (supra) and is offering itself for scrutiny and compliancein terms of thesaid judgment before the Executing Court.
14.2. The Executing Court is at liberty to scrutinize the affidavit dated 09.08.2023 of the JD and take further steps in execution proceedings as per paragraphs ‘54’ and ‘55’ of the said judgement.
15. It is made clear that if there is any default in filing the affidavit disclosingtheir detailsoughtin paragraph‘10’ oftheorder dated 25.02.2023 and/or making payment of costs of Rs. 20,000/- in terms of order dated 25.02.2023on or before19.08.2023, thestay order granted today shallstand automatically vacated without seeking any clarification from this Court.
16. It is made clear that this Court has not examined the merits of the averments made by the Petitioner in the application for recall dated 21.07.2023filed by thePetitioner. TheExecutingCourtshalldecide thesaid application on its own merits and in accordance with law.
17. With the aforesaid directions, the present petition is disposed of.
MANMEET PRITAM SINGH ARORA (JUDGE) AUGUST 16, 2023/rhc/asb Click here to check corrigendum, if any