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HIGH COURT OF DELHI
Date of Decision: 12.03.2019
S.S.CONSTRUCTIONS..... Decree holder
Through Dr. Jose P. Verghese and Mr. Dhruv Jose, Advs.
JUDGMENT
Through Mr. C.S. Gupta, Adv for judgment debtors i.e. Mr. Sanjay Kumar Jain and Mr. Satender Kumar Jain.
Mr. Bharat Gupta, Adv for applicants in I.A. Nos.1950-51/2018.
I.A. No.1591/2018 & I.A. No.1590/2018
1 These objections are filed by, one, Mr. Naresh Kumar Jain and Mr. Anand Prakash Jain. I.A. No.1591/2018 has been filed by Mr. Naresh Kumar Jain while I.A. No.1590/2018 has been filed by Mr. Anand Prakash Jain.
2 Via order dated 21.08.2017, this Court had attached, inter alia, the properties said to be owned by the Objectors.
3 In paragraph 10 of the enforcement petition, the details of the properties have been given. The properties adverted to in paragraph 10 (ii) and 10 (iv) of the enforcement petition are said to be owned by 2019:DHC:1521 O.M.P. (ENF.) (COMM) 92/2017 Pg. 2 of 9 Mr. Anand Prakash Jain while the property described in paragraph 10
(iii) of the enforcement petition is said to be owned by Mr. Naresh
Kumar Jain.
4 Along with the captioned interlocutory applications, the objectors have filed registered sale deeds concerning these properties.
5 Insofar as Mr. Anand Prakash Jain is concerned, who incidentally has expired, the following properties have been attached by virtue of order dated 21.08.2017:-
(i) Property bearing No. 3819, Gali Barna, Sadar Bazar, Delhi-
(ii) Property bearing No. 3721, Gali Barna, Sadar Bazar, Delhi-
110006.
6 Copies of the registered sale deeds with respect to these properties have been produced. These are registered sale deeds dated 25.11.1994 and 12.08.1986.
7 As regards the property owned by Mr. Naresh Kumar Jain is concerned, the same is described as follows:- “Property bearing No. 1A/255, NIT, Faridabad, Haryana.” 8 This property was initially purchased by late Mr. Anand Prakash Jain vide registered sale deed dated 03.11.1989. The said property, however, was transferred via registered sale deed dated 05.11.2014 in favour of Mr. Naresh Kumar Jain.
9 Dr. Jose P. Verghese, who, appears for the decree holder, says that the judgment debtor trust was the owner of the aforementioned properties qua which right, title and interest is claimed by the aforementioned objectors. O.M.P. (ENF.) (COMM) 92/2017 Pg. 3 of 9
10 Furthermore, Dr. Jose P. Verghese says that via the impugned Award, a direction had been issued by the learned Arbitrator vis-à-vis the aforementioned immoveable properties.
11 My attention, in this regard, has been drawn to paragraph 20 and the directions contained in paragraph 21 (c) of the Award dated 23.11.2016.
12 It is the contention of the learned counsel that since the Award was not assailed, the objectors cannot get the attachment order lifted. Learned counsel says that the aforementioned objectors being trustees should have filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (in short „1996 Act‟), if they were impacted by the subject Award dated 23.11.2016.
13 I have heard the learned counsel for the parties.
14 I am of the view that the attachment order dated 21.08.2017 vis-à-vis the aforementioned properties will have to be lifted. The reason why I say so is that Dr. Jose P. Verghese has not been able to demonstrate, either from the Award or by reference to any document that the aforementioned immovable properties were trust properties. 14.[1] The contention of Dr. Jose P. Verghese that the trustees should have filed a petition under Section 34 of the 1996 Act, in my view, is untenable. The objectors before me take the stand that the aforementioned properties are their personal properties and were purchased at a point in time much prior to the creation of the trust. It is not in dispute that the trust was created on 21.11.2003. In my view, it is permissible in law for the objectors to approach this Court in an enforcement action, which they have, by filing objections and contend O.M.P. (ENF.) (COMM) 92/2017 Pg. 4 of 9 that the attachment order affects their personal properties.
15 Thus, for the foregoing reasons, insofar as the aforementioned objectors are concerned, the attachment order dated 21.08.2017 is lifted.
16 The applications are disposed of in the aforementioned terms. I.A. No.1592/2018
17 This application has been filed by, one, Ms. Usha Jain. Ms. Usha Jain is also aggrieved by the attachment order dated 21.08.2017, passed by this Court, whereby her asset described as: property bearing No. 537, Ward No. 5, Mehrauli, Delhi-110030 has been attached. According to Ms. Usha Jain, this property was purchased on 14.10.2004 via a registered sale deed of even date. A copy of the sale deed has been appended to the application.
18 A perusal of the sale deed would show that the vendors of the said property are Ms. Gunmala Jain and Mr. Kanwar Sain.
19 Dr. Jose P. Verghese has not been able to demonstrate that the aforementioned property is a trust property. Dr. Jose P. Verghese, however, relies upon paragraphs 20 and 21 (c) of the Award dated 23.11.2016 to enforce the right of the decree holder qua Ms. Usha Jain‟s property.
20 In my view, since no document has been placed on record nor is there any discussion as to the aforementioned property being part of the assets of the trust, the attachment order would have to be lifted qua this property as well.
21 It is ordered accordingly. O.M.P. (ENF.) (COMM) 92/2017 Pg. 5 of 9 I.A. No.1587/2018
22 This application has been filed by an entity running under the name and style: Ambit Education Pvt. Ltd. It is the case of this objector that it is aggrieved by the attachment order dated 21.08.2017 passed vis-à-vis its property described as construction site and properties (movable and immovable) of the Dental College and Hospital, Village Thada, Bhiwadi, District Alwar-Rajasthan.
23 It is the objector‟s contention that the aforementioned property was purchased in a public auction carried out by ING Vysya Bank under the SARFAESI Act, 2002. For this purpose, the Sale Certificate dated 18.03.2010 issued in favour of the objector has been relied upon.
24 Dr. Jose P. Verghese, who, appears for the decree holder, like in other matters, relies upon paragraphs 20 and 21 (c) of the subject Award dated 23.11.2016.
25 Furthermore, according to Dr. Jose P. Verghese, late Mr. Anand Prakash Jain and Mr. Vipin Jain, who were trustees in the judgment debtor trust, were also directors in the objector entity.
26 In my view, this was not the case set up by the decree holder before the Arbitrator. There is, concededly, no such finding in the Award. The aforementioned property, evidently, belongs to the objector company. The property cannot belong to individual Directors, who otherwise may be trustees, as claimed by Dr. Jose P. Verghese, in the judgment debtor trust.
27 In view of the foregoing, the attachment order dated 21.08.2017 qua the aforementioned property is also lifted. O.M.P. (ENF.) (COMM) 92/2017 Pg. 6 of 9
28 The application is, accordingly, disposed of. I.A. No.1589/2018
29 The objector is, one, Mr. Sanjay Kumar Jain. The objector is aggrieved by the order dated 21.08.2017 passed by this Court whereby, inter alia, his immovable property described as: flat No. 10, Brothers Apartments, 16, I.P. Extension, Delhi-110092 has been attached. In support of his stand, the objector relies upon the allotment letter dated 02.06.1996 and the Conveyance Deed dated 19.04.2002. Learned counsel for the objector says that the transaction qua the immovable property took place prior to creation of the judgment debtor trust. It is also submitted that the aforementioned property is the personal property of the objector.
30 Dr. Jose P. Verghese, on the other hand, draws my attention to paragraphs 20 and 21 (c) of the Award. Based on what is stated in these paragraphs of the Award dated 23.11.2016, Dr. Jose P. Verghese contends that the attachment vis-à-vis the aforementioned property ought not to be lifted. Furthermore, learned counsel says that the objector was a trustee in the judgment debtor trust.
31 Having heard the learned counsel for the parties and perused the record, in my view, the attachment order will have to be lifted for the following short reasons.
32 Pertinently, while it is not in dispute that the objector (i.e. Mr. Sanjay Kumar Jain) was a trustee in the judgment debtor trust, it is clear that the objector acquired rights in the property prior to the creation of the trust. Dr. Jose P. Verghese has not been able to place on record any document which would suggest that the aforementioned O.M.P. (ENF.) (COMM) 92/2017 Pg. 7 of 9 property was, at any point in time, the property of the judgment debtor trust.
33 Accordingly, the attachment directed qua the aforementioned property by this Court vide order dated 21.08.2017 is lifted.
34 The application is disposed of in the aforesaid terms. I.A. No.1588/2018
35 The captioned application has been filed by, one, Mr. Satindra Kumar Jain. The applicant i.e. objector, is aggrieved by the order dated 21.08.2017, passed by this Court, whereby his property, amongst others, described as property bearing No. W-14, Jain Bhawan, Anupam Garden, IGNOU Road, Saidulajab, New Delhi- 110068 stand attached.
36 The objector relies upon a copy of the registered Assignment Deed dated 02.08.2013 to establish his right, title and interest in the aforementioned property.
37 Dr. Jose P. Verghese, who, appears for the decree holder, says that the attachment order ought not to be lifted qua the aforementioned property. For this purpose, Dr. Jose P. Verghese relies upon paragraphs 20 and 21 (c) of the Award dated 23.11.2016.
38 Dr. Jose P. Verghese says that the objector Satindra Kumar Jain was a trustee in the judgment debtor trust.
39 Having heard the learned counsel for the parties and perused the record, in my view, the attachment order passed qua the aforementioned property will have to be lifted for the following short reason: there is nothing placed on record which would show that the aforementioned property was owned by the judgment debtor trust. O.M.P. (ENF.) (COMM) 92/2017 Pg. 8 of 9 The subject Award also does not advert to this aspect of the matter. The mere fact that a conservatory order has been passed by the learned Arbitrator vis-a-vis the aforementioned property will not enure a right in the decree holder to seek enforcement of the subject Award qua the aforementioned property.
40 Accordingly, the attachment vis-a-vis the aforementioned property caused by the order dated 21.08.2017 shall stand lifted.
41 The application is disposed of in the aforementioned terms. I.A. No.9565/2018
42 The substantive prayer made in the application is as follows:- “i) Take on record the documents Nos. 2 to 5, produced along with the present application”
43 As would be obvious, in the enforcement proceedings, the decree holder seeks to place on record certain additional documents. On being queried, Dr. Jose P. Verghese says that these are documents, which, inter alia, demonstrate that late Mr. Anand Prakash Jain and Mr. Naresh Kumar Jain were trustees of the judgment debtor trust. Furthermore, Dr. Jose P. Verghese also seeks to rely upon the Sale Certificate dated 18.03.2010, issued in favour of Ambit Education Pvt. Ltd. by ING Vysya Bank.
44 Insofar as the Sale Certificate is concerned, the impact of the same has already been dealt with by me in I.A. No.1587/2018. To my mind, none of the other documents will help the cause of the decree holder. The decree holder, as indicated in the orders passed today in the applications filed by various objectors, has not been able to demonstrate that the properties of the objectors, qua which attachment order was passed by this Court on 21.08.2017, were properties of the O.M.P. (ENF.) (COMM) 92/2017 Pg. 9 of 9 judgment debtor trust.
45 The application is, accordingly, dismissed. OMP (ENF.) (COMM.) 92/2017
46 Dr. Jose P. Verghese concedes that the asset disclosure affidavit has been filed by the judgment debtor and that the same does not disclose that there are assets available to satisfy the decretal debt.
47 Therefore, in these circumstances, for the moment, the captioned petition is closed. In case the decree holder is able to discover any asset(s) of the judgment debtor trust, it will have the liberty to move the Court to reopen the execution proceedings, albeit, in accordance with law.
RAJIV SHAKDHER, J MARCH 12, 2019 A