Full Text
HIGH COURT OF DELHI
Date of Decision: 4th May, 2022.
AKHILESH CHANDRA & ORS ..... Decree Holders
Through: Mr. Mohit Kumar Sharma, Advocate.
Through: Mr. Syed Hasan Isfahani, Mr. V.
Jairaman and Mr. Syed Md. Hasan, Advocates for LRs of JD-1 along with
Mr. Anubhav Bhardwaj, LR for JD-1 Mr. Srinivasan Ramaswamy, Advocate for applicant in EA
No.2740/2022 Mr. Manish Kumar and Mr. Vikas Rao, Advocates for objector, Property
No.1103 (Rashmi Goel).
JUDGMENT
1. Reply is stated to have been filed on behalf of the respondents, however, the same is not on record.
2. Counsel for the respondents shall ensure that the same is placed on record before the next date of hearing. 2022:DHC:1742
3. List on 13th July, 2022. EA 311/2022 (by decree holders u/O-XXI R-41 of CPC)
4. Pursuant to the order dated 20th April, 2022 passed by this Court, affidavit of assets has been filed on behalf of the legal representative Anubhav Bhardwaj, however, the same is not on record.
5. Counsel for the said legal representative shall ensure that the same is placed on record before the next date of hearing.
6. Decree holders shall have the right to file reply thereto.
7. List on 13th EA 2740/2022(O-XXI R-58 of CPC)
8. The present application has been filed under Order XXI Rule 58 of the Code of Civil Procedure, 1908 (CPC) on behalf of Gopal Bindal and Rajat Bindal, seeking to object to the attachment of the immovable property bearing No.B-14, 3rd Floor, Friends Colony, New Delhi–110065.
9. Reply to the present application has been filed on behalf of the decree holder vide diary No.797740/2022 on 02nd May, 2022. Copy of the same is not on record. However, a copy of the reply has been handed over in Court and the same is taken on record.
10. It is the case of the applicants that an Agreement to Sell dated 21st October, 2019 was executed in favour of the applicants by the judgment debtor. Pursuant to the aforesaid agreement to sell, a sum of Rs.2,63,10,175/- was paid by the applicants to the judgment debtor. In support thereof, bank statements have been filed with the application.
11. Counsel appearing on behalf of the applicants has made the following submissions:
(i) the agreement to sell was executed much prior to the warrants of attachment issued by this Court on 19th January, 2021.
(ii) the applicants are bona fide purchasers of the said property.
(iii) the agreement to sell was executed for Rs.3,50,00,000/- and the applicants are ready and willing to deposit the balance sum of Rs.86,89,825/- before the Court.
(iv) the provisions of Order XXXVIII Rule 10 of the CPC would also apply in the case of attachment made by the court in execution proceedings and if an agreement to sell has been executed prior to the date of attachment, it would not be covered under the provisions of Section 64 of the CPC. Reliance in this regard is placed on the judgments of Yeshvant Shankar Dunakhe v. Pyaraji Nurji Tamboli, AIR 1943 Bom 145; Vannarakkal Kallalathil Sreedharan v. Chandramaaath Balakrishnnan, (1990) 3 SCCC 291 and Karam Chand v. Cutting Edge Infrastructure Pvt. Ltd., 2019 SCC OnLine Del 9934.
(v) on account of the Agreement to Sell dated 21st October, 2019 in favour of the applicants, the applicants have locus standi to file the present application. Reference is made in this regard to the judgment in Kancherla Lakshminarayana v. Mattaparthi Syamala, (2008) 14 SCC
258.
12. On behalf of the decree holder, the following submissions have been made.
(i) the Agreement to Sell dated 21st October, 2019 is not a registered agreement and therefore, in terms of Section 54 of the Transfer of Property Act, no interest has been created in favour of the applicants.
(ii) by way of the present application, the applicants are seeking specific performance of an agreement to sell, which is not permissible. It is an admitted position that the applicants have not filed any suit for specific performance.
(iii) the judgments referred to by the applicants are in the context of the unamended Section 64 of the CPC. Section 64 of the CPC was amended in 2002 and in terms of the amended Section 64, if the agreement to sell is unregistered, the subsequent sale after attachment would not be valid. Reliance in this regard is placed on the judgment of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344.
(iv) vide order dated 10th November, 2017, an interim order was passed by this Court directing the judgment debtor to maintain status quo with regard to title and possession of various properties, including the aforesaid property. The Agreement to Sell has been executed in violation of the aforesaid order and therefore, the doctrine of lis pendens, as provided in Section 52 of the Transfer of Property Act, would come into play.
(v) in terms of Clause 3 of the Agreement to Sell, a security has been provided in favour of the applicants of Rs.2,64,00,00,000/- in the form of post-dated cheques and therefore, the interest of the applicants has been secured.
(vi) it has been wrongly stated in the application that the Agreement to
Sell was executed by the judgment debtor, whereas the same has been executed by Anubhav Bhardwaj, one of the legal representatives of the judgment debtor.
(vii) the present application has been filed belatedly. The applicants have kept silent for the entire period since the time the Agreement to Sell was executed and have approached this Court only when the Court is in the process of directing sale of the aforesaid property.
13. I have heard the counsels for the parties.
14. Before I advert to the submission made on behalf of the parties, it may also be relevant to refer to the fact that a Sale Deed dated 1st December, 2021 was executed by Anubhav Bhardwaj in favour of one Reena Kumari. EA 316/2022 was filed on behalf of the decree holders to declare the said sale deed as void. In reply to the said application, it was stated on behalf of the legal heirs of the judgment debtor that Reena Kumari was a nominee of the applicants herein in respect of the agreement to sell in favour of the applicants. Reena Kumari, in her reply affidavit to EA 316/2022, has completely denied the fact that she was the nominee of the applicants herein. Vide order dated 7th April, 2022, EA 316/2022 was allowed and the registered Sale Deed dated 1st December, 2021 in favour of Reena Kumari was declared as void. On a pointed query of the Court to the counsel for the applicants as to whether or not Reena Kumari was the nominee of the applicants, the counsel for the applicants states that he would need to take instructions.
15. It is clear that all the parties, namely, the legal representative of the judgment debtor, the applicants and Reena Kumari are taking completely contradictory stands. It appears that the applicants as well as Reena Kumari have been put forward by the legal representative of the judgment debtor in order to defeat the attachment order passed by this Court and frustrate the rights of the decree holders in the aforesaid property.
16. At this stage, reference may be made to the Agreement to Sell filed on behalf of the applicants along with the application. A bare look at the Agreement to Sell would show that no date of execution has been written therein. Further reference may be made to Clause 3 of the said Agreement, which is reproduced hereinafter: “3. That in case, the First Party fails to deliver actual, vacant, physical and peaceful possession of the said Floor/Portion of Property and/or all the original title deeds of the said Floor/Portion of Property to the Second Party within 7 working days from execution of this Agreement to Sell, this Agreement to Sell shall become voidable at the option of the Second Party. In case, the Second Party decided to void this Agreement to Sell, the First Party shall immediately refund the entire amount received from the Second Party and the right of lien of the Second Party on the said Floor/Portion of Property shall stand terminated only upon receipt of the full and final refund thereof. Further, the First Party has handed over to the Second Party, the following Cheques as Security for the repayment of the said amount: (a) Rs.1,30,00,000/- vide Cheque No.031465, (b) Rs.1,20,00,000/- vide Cheque No.031466, both drawn on Yes Bank, Gujranwala Town, Delhi
(c) Rs.10,00,000/- vide Cheque No.031467, drawn on Kotak
Mahindra Bank, Sector XI MLU, Dwarka, New Delhi-110075. The Second Party shall be fully entitled to present all these cheques for clearance in case of failure of the First Party to comply with provisions of Clause 2 hereinabove. In case, any of the above cheques are dishonoured, the Second Party shall be entitled to file suit under Negotiable Instruments Act. Further, the Second Party shall also be entitled to charge from the First Party interest @ 2% per month or part thereof till such amount is refunded in full by the First Party.”
17. It is clearly noted in the aforesaid clause that if the first party (Anubhav Bhardwaj) does not handover all the original deeds of the property to the second party (the applicants) within seven days of execution of the said agreement, the agreement would become voidable at the option of the applicants. Therefore, time was of the essence of the agreement. It is also to be noted that cheques totalling to Rs.2,60,00,000/- have been handed over by Anubhav Bhardwaj to the applicants as a security for the repayment of the aforesaid amount. No answer is forthcoming from the counsel for the applicants as to whether any option was exercised by the applicants in respect of the aforesaid agreement to sell and specifically, in terms of Clause 3 above. It is a matter of record that for almost three years, no steps have been taken on behalf of the applicants towards specific performance of the aforesaid agreement to sell. The present application has been filed only on 6th April, 2022, when the Court was inclined to order sale of the aforesaid property. Reference may be made to Order XXI Rule 58(1) of the CPC, which is as under: “58. Adjudication of claims to or objections to attachment of property.— (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such, claim or objection shall be entertained— (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or, (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.”
18. Proviso (b) to Order XXI Rule 58(1) of the CPC clearly provides that the Courts shall not entertain the objections, if the objections were ‘designedly or unnecessarily delayed’ even if the attached property has not been sold.
19. As noted above, the aforesaid property was attached on 19th January, 2021 and the present application has been filed only on 6th April, 2022, when the Court was inclined to order sale of the aforesaid property. No reasons have been given in the present application for filing the objections at such a belated stage. The objections have therefore been filed only to defeat the attachment order of the Court and frustrate the rights of the decree holders.
20. No clear stand has also been taken on behalf of the applicants on whether or not Reena Kumari was the nominee of the applicants in respect of the present agreement to sell. Fact of the matter is that the registered Sale Deed dated 1st December, 2021 was executed in favour of Reena Kumari by Anubhav Bhardwaj and pursuant thereto, all rights whatsoever in favour of the applicants under the said Agreement ceased to exist. No reference was made in the said sale deed to the agreement to sell in favour of the applicants or that Reena Kumari was the nominee of the applicants. It was only in terms of the order dated 07th April, 2022 passed by this Court that the Sale Deed was cancelled. The cancellation of the said Sale Deed would not in any manner revive the rights of the applicants, if any, under the agreement to sell.
21. The counsel for decree holder has correctly placed reliance on the judgment of the Supreme Court in Salem Advocate Bar Association, Tamil Nadu (supra). Reference may be made to paragraph 25 of the aforesaid judgment, which is set out as under: “25. Section 64(2) in the Code has been inserted by Amendment Act 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64(1). Section 64(1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The concept of registration has been introduced to prevent false and frivolous cases of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If it is unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. There is no ambiguity in sub-section (2) of Section 64.” (emphasis supplied)
22. Section 64 of the CPC was amended with effect from 1st July, 2002 and pursuant to the said amendment, sub-section (2) to Section 64 was introduced to bring about the concept of registration so as to prevent false and frivolous cases of contract being set up with a view to defeat the attachment. Therefore, only if the contract/agreement to sell is registered, any Sale Deed executed in pursuance thereof, after attachment, would be valid. In view of the aforesaid judgment of the Supreme Court, the judgments relied upon by the applicants, which dealt with the unamended Section 64 CPC, would have no relevance.
23. In any event, the said agreement to sell was executed after the interim order dated 10th November, 2017 was passed by this Court directing status quo to be maintained. The agreement to sell was executed in gross violation of the interim order passed by this Court and therefore, the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act would come into play and rights, if any, created in favour of the applicants would be subject to the rights of the decree holder.
24. On the basis of the aforesaid discussion, I am of the firm view that the aforesaid agreement to sell as well as the present application has been filed by the applicants in collusion with Anubhav Bhardwaj, so as to defeat the attachment order passed by this Court in respect of the aforesaid property and frustrate the rights of the decree holder. It may be pertinent to note here that even the registered Sale Deed dated 1st December, 2021 in favour of Reena Kumari was executed by Anubhav Bhardwaj in gross violation of the attachment order passed by this Court. Clearly, the attempt of Anubhav Bhardwaj is to abuse the process of the Court.
25. In view of the discussion above, the present application is dismissed with costs of Rs.1,00,000/- imposed on Anubhav Bhardwaj and Rs.1,00,000/- on the applicants. EA 491/2021(O-XXI R-64 of CPC)
26. By way of the present application, the decree holders seek sale of immovable properties of the judgment debtor attached by this Court vide order dated 19th January, 2021.
27. Out of the various properties attached by this Court vide order dated 19th January, 2021, three of the properties already stood attached by the Punjab & Sind Bank and the same have since been auctioned by the Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 towards recovery of their dues. Accordingly, as on date, the following three properties stand attached by the order of this Court:
(i) Flat No.B-14, 3rd
(ii) House constructed on 366 Sq. Yds., Plot of land situated at Kh.
(iii) Flat type C Pent House No.1103 in Shiv Shankar Co-operative
28. In respect of the property at serial no.(iii), Mr. Manish Kumar, Advocate appears and states that there is a registered Sale Deed in respect of the said property in favour of one Rashmi Goel and the same has already been sold prior to the attachment order passed by this Court.
29. Mr. Manish Kumar, Advocate is directed to place on record the original of the aforesaid Sale Deed within seven days along with an affidavit in support thereof.
30. Insofar as the property at serial no.(ii) is concerned, Anubhav Bhardwaj, who is present in Court, submits that this is his sole dwelling house.
31. Counsel for the decree holder opposes the aforesaid submission and states that in terms of paragraph 13 of the reply filed on behalf of the Punjab & Sind Bank, the property being Flat No.101, First Floor Chandra Co- Operative Society Ltd., Plot GH-64, Shri Kirti Apartments Sector 55, Gurgaon, released by the Punjab & Sind Bank, is the dwelling house of the judgment debtors. Therefore, the property at serial no.(ii) hereinabove cannot be the only dwelling house.
32. Insofar as the property at serial no.(i) is concerned, a reply has been filed on behalf of the legal representatives of the judgment debtor belatedly, wherein it is stated that the deceased judgment debtor was owner of 50% share in the said property and the other 50% belonged to his wife Late Mrs. Sangeeta Bhardwaj, who, before her death by virtue of Will dated 8th March, 2018, had bequeathed her share to her son, Anubhav Bhardwaj. Therefore, by virtue of the said Will, Anubhav Bhardwaj has become owner of 50% share in the said property and only the balance 50% belonged to the deceased judgment debtor. It is further stated that the said Will dated 8th March, 2018 was only discovered recently by Anubhav Bhardwaj. It has further been submitted that the monies received from Rajat Bindal and Gopal Bindal in terms of the Agreement to Sell dated 21st October, 2019 were paid to the Punjab & Sind Bank towards a One Time Settlement.
33. It has been further stated in paragraph 10 of the reply that Anubhav Bhardwaj has sold farm land ad measuring 0.092 hectare situated in Gram Kotla Patti Mora Dhak, Tehsil Kotdwar, District Pauri Garhwal, Uttrakhand, which was in the name of Late Mr. Ishpal Bhardwaj, on 09th February, 2020 vide registered Sale Deed. However, no details have been given as to whom the said land was sold and what was the consideration received.
34. I am of the considered opinion that the Will now sought to be propounded on behalf of the Anubhav Bhardwaj does not inspire confidence. There is no reason as to why a Will that was executed on 8th March, 2018 and in which Anubhav Bhardwaj was the sole beneficiary, was not in his knowledge or was not produced at an earlier point of time. It is also to be noted that the original of the Will has not been placed on record. I am of the view that this purported Will has been procured at this stage only in a manner to protect the interest of Anubhav Bhardwaj in the aforesaid property. I have already held while deciding EA 2174/2020 that the agreement to sell has been created by Rajat Bindal and Gopal Bindal in collusion with Anubhav Bhardwaj, so as to defeat the attachment order passed by this Court and frustrate the rights of the decree holders.
35. In view of the discussion above, this Court is of the view that Late Mr. Ishpal Bhardwaj, the judgment debtor had 75% undivided interest in the aforesaid property and there is no reason why the same should not be sold. The present execution petition has been filed seeking execution of decree dated 14th September, 2017 in terms of which Rs.3,54,17,071/- along with interest at the rate of 12% per annum has been awarded in favour of the decree holders, and no part of it has been satisfied.
36. The decree holder shall file a draft proclamation of sale of Flat No.B-14, 3rd Floor, Friends Colony (West), New Delhi-10065 within ten days.
37. Proclamation of sale as settled by the Joint Registrar be affixed at a convenient place and displayed on the notice board of the Sub- Divisional Magistrate (SDM) at North East District, New Delhi, on the notice boards of the District Courts of Delhi as well as on the notice board of this Court. Publication to this effect also be issued in two widely circulated newspapers in both English and Hindi, on the date as may be fixed by the Joint Registrar.
38. List before the Joint Registrar on 20th May, 2022 for approval of draft proclamation of sale.
39. The sale of properties mentioned at serial no.(ii) and (iii) hereinabove shall be considered on the next date of hearing.
40. List before the Court on 13th AMIT BANSAL, J. MAY 04, 2022 dk