Y.P. Khanna & Ors. vs N.P.S. Bhandari & Ors. on 30 August, 2013

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Delhi High Court

Y.P. Khanna & Ors. vs N.P.S. Bhandari & Ors. on 30 August, 2013

1. Five petitions under Section 36 of the Arbitration and Conciliation Act, Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 3 of 45 1996 ('Act') have been filed seeking enforcement of an arbitral Award dated 1st January 1999 as modified by the decision dated 1st August 2008 passed by the Division Bench ('DB') of this Court in FAO (OS) Nos.159-160 of 2002.

Background Facts

2. The background facts are that late Mr. D.C. Khanna had five sons and one daughter. The eldest son was late Mr. P.D. Khanna. He is represented by his sons, Mr. Ashok Khanna and Mr. Anil Khanna. For ease of reference, his group is referred to as Group A. The second son is Mr. L.R. Khanna, heading Group B, which consists of himself, his wife, Mrs. Asha Khanna and his sons, Mr. Vinod Khanna, Mr. Vimal Khanna and Mr. Virender Khanna. The third son was late Mr. Y.P. Khanna, heading Group C, which consists of his wife, late Pushpa Khanna and his two sons, Mr. Arun Khanna and Mr. Ajit Khanna. The fourth son was late Mr. O.P. Khanna, who earlier headed Group D, which is now headed by his wife, Mrs. Nita Khanna. This group consists of Mrs. Nita Khanna and her two sons, Mr. Ashwani Khanna and Mr. Ashish Khanna. The fifth son is Mr. Prem Khanna, who heads Group E which consists of his wife, Mrs. Renu Khanna and two sons, Mr. Pankaj Khanna and Mr. Praneet Khanna.

3. Following the death of late Mr. D.C. Khanna, disputes arose between the groups in respect of various properties which were either in the names of partnerships or companies incorporated under the Companies Act 1956, sole proprietorship firms or individuals. The groups decided that all the properties would be put into a common hotchpotch. An arbitration Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 4 of 45 agreement was entered into on 4th September 1996 whereby "all disputes concerning and connected with all the aforesaid business, interest, amenities, benefits , rights of any of the party for present deed of agreement connected or concern with the aforesaid business, individually or otherwise" were agreed to be "settled by means of arbitration." A list of 17 properties was set out in the preamble of the arbitration agreement. The learned Arbitrator was to decide "all matters connected with and concerning the benefits, obligations, assets, liabilities of the persons, partnership firms, the proprietary concerns, or of any member of the board or shareholding of any company consisting the groups." Mr. N.P.S. Bhandari was appointed as the sole Arbitrator. It was agreed between the parties that the Award would be final and binding on all of them.

The Family Settlement

4. During the course of arbitration, a Family Settlement ('FS') was entered into on 9th May 1997, wherein it was agreed between the groups as under:

Group A In lieu of surrendering Plot No.212, Okhla Industrial Estate ('OIE'), Group A would be given CC-17, Kalkaji Extension, New Delhi; Plot No.22, OIE, New Delhi;

28, Community Centre, East of Kailash ('EOK'), New Delhi and B-258, Okhla Industrial Area (OIA) , Okhla Phase-I, New Delhi.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 5 of 45

Group B In lieu of surrendering DD-7, Kalkaji Extension, New Delhi, Group B would be given the residential property at 4/7, Kalkaji Extension, New Delhi and the industrial plot No. 212, OIE, New Delhi.

Group C In lieu of surrendering A-9/13-C, Vasant Vihar, New Delhi, C-7/C-8, OIA, New Delhi and CC-17, Kalkaji Extension, New Delhi, Group C would be given a portion of DD-7, Kalkaji Extension, New Delhi and an industrial plot at D-1, OIA, Phase -I, New Delhi.

Group D Group D would retain a portion of DD-7, Kalkaji Extension and also retain industrial plot at 18, OIE, New Delhi.

Group E In lieu of surrendering 4/7, Kalkaji Extension, New Delhi and D-1, OIA, Phase-I, New Delhi, Group E was to be given the property at D-820, New Friends Colony, New Delhi and the industrial plot at C-7/C-8, OIA, New Delhi.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 6 of 45

Group E was also to be given the foundry at Shambu Dayal Bagh, along with Group A and an ice factory under the name of Star Prem Engineering ('SPE') at Sabzi Mandi.

5. The aforesaid FS also recorded the remaining tasks to be performed by the learned Arbitrator. Thereafter the parties entered into another agreement dated 25th July 1998 appointing one Mr. Jagdish Sahni as an Arbitrator. However, as was held subsequently by the learned Single Judge of this Court in OMP Nos. 71 of 1999 and 93 of 1999 on 15th March 2002, Mr. Sahni never performed any tasks as Arbitrator, although he signed the Award given by Mr. Bhandari finally.

The Award

6. On 1st January 1999, an Award was rendered by Mr. Bhandari, co-signed by Mr. Sahni. The heads of all the groups signed the Award by way of acceptance. The Award classified the properties of the parties as under:

Category A - Immovable Properties Category B - Movable Properties Category C - Assets and liabilities or their values pooled into joint stock and receivable/adjustable, which was to be termed as 'family pool' (which expression is to mean and include the values of properties/liabilities to be discharged, receipts from sales thereof and debit and or credit of all or any group).

7. The details of the Award in respect of Category B need not be set out as there were one or two items and the common case of the parties is that the Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 7 of 45 said portion of the Award has already been implemented. Category A properties were distributed in terms of the FS. As regards Category C properties, the learned Arbitrator framed the following directions in respect of each group as under:

Group A Group A to pay Rs. 1,34,07,000 into the family pool as against the excess amount of share in its hand as per calculations arrived in the Annexure- a to the Award. It was acknowledged that Group A had already deposited Rs. 50,000 towards the expenses for legal work and registration of documents. The property at C-28, Community Centre, EOK, New Delhi, would be handed over to Group A on the condition that it makes the payment of Rs.1, 34,07,000, Rs. 15,00,000 within fifteen days and the balance within ninety days from the making of the Award, failing which the subject property shall revert to the family pool to be offered to any group against payment or exchange for the value thereof.

Group B Group B was directed to pay Rs. 36,04,000 into the family pool. The rental income from the lease of 212, OIE, New Delhi was to be given to the Arbitrator till the discharge of the aforementioned liability as well as the dues towards the clearance of the house-tax pertaining to 28, Community Centre, EOK, New Delhi and amount to its share towards expenses for legal work and registration of documents. Group B was asked to pay Rs. 17,00,000 towards accumulated liabilities in regard to the plot of Prem Plastic Works ('PPW') and DD-7, Kalkaji Extension. In the event of the liability being in excess or less of the said sum, Group B would be debited Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 8 of 45 and credited accordingly against the liability of Group A and Group C respectively.

Group C Group C was to receive Rs. 31,49,000 as per calculations at Annexure-c to the award minus the amount to its share of expenses towards the legal work and registration of documents. Groups C, D and E would have a lien on the plot at Vasant Vihar till the realisation of the sale proceeds thereof and till the disbursement therefrom of the liability of Bank of India ('BOI').

Group D Group D was to have a lien on the Vasant Vihar property together with Group C and Group E till realisation of the sale proceeds of that property and the discharge of the liability of BOI. Group D was to receive Rs. 12,06,000 from the family pool in terms of the calculation appended to the Award in Annexure-d minus the share of its expenses towards legal work and registration of documents.

Group E Group E was to have a lien on the Vasant Vihar property together with Groups C and D till the realization of sale proceeds and till the discharge of the liability of BOI. Group E was to receive Rs. 1,06,26,000 from the family pool as per the calculations appended to the Award in Annexure-e. It was acknowledged that Group E has deposited Rs. 50,000 for expenses towards legal work and registration of documents. Group E was to vacate and Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 9 of 45 handover the complete factory premises of D-1, OIA, New Delhi within 45 days of the Award or its share of surplus cash as per the award.

8. In terms of the Award, the sale proceeds/possession of the property at Roshanara Road was to be given to Mrs. Santosh, the real sister of the group heads or Rs. 10,00,000 in lieu thereof from the family pool.

9. The Award noted that in case Group E was not interested in retaining SPE at Subzi Mandi, it would be released by them to the family pool as against the notional value of Rs. 25,00,000 to be reimbursed to Group E on realisation of the sale proceeds.

10. The head of Group B, Mr. L.R. Khanna was to retain one flat in DD-7, Kalkaji Extension, New Delhi which he would bequeath by way of a Will or make a gift in the name of Mr. Y.P. Khanna and the said documents would be authenticated by all the legal heirs of Mr. L.R. Khanna.

Objections to the Award

11. Objections under Section 34 of the Act were filed by Group A headed by Mr. P.D. Khanna (OMP No. 93 of 1999) and Group B headed by Mr. L.R. Khanna (OMP No. 71 of 1999). Even before the Award was pronounced, Group D filed OMP No. 206 of 1998 to restrain Group A from taking possession of the property at C-28, Community Centre, EOK, New Delhi and for Mr. N.P.S. Bhandari to be appointed as the Receiver of the property. It was also prayed that National Fertilizers Ltd, which was a tenant in the property should asked to handover the vacant and peaceful possession to the Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 10 of 45 Receiver. Group E filed OMP No.279 of 1999 under Sections 18 and 22 of the Act for directions to the learned Arbitrator to review the Award dated 1st January 1999 or pass a supplementary Award on the issues framed by order dated 28th January 1999. In OMP No.93 of 1999, IA No.2413 of 2001 was filed by the BOI seeking directions to permit it to appropriate the sums owing to it by M/s. Prem Engineering Works ('PEW') and M/s. Okhla Ice and Food Products ('OIFP') respectively from the proceeds out of the sale of the Vasant Vihar property.

Orders of the learned Single Judge

12. By judgment dated 23rd April 2001, in P.D. Khanna v. Ashwani Khanna 92 (2001) DLT 18, a learned Single Judge disposed of IA No.2413 of 2001 filed by BOI. In the said order, it was noted that the Vasant Vihar property had been sold and a sum of Rs. 2,37,00,000 had been deposited in the Court. The prayer of BOI for appropriating the sums on account of PEW and OIFP from the said amount was allowed and the objections raised thereto by Mr. Y.P. Khanna (who was Respondent No.6 in the said application) were negatived. Accordingly, BOI was permitted to appropriate the sum of Rs. 67,46,090.47 + Rs. 19,65,086.93 from the sale proceeds of the Vasant Vihar property which were deposited with the Court.

13. The learned Single Judge, by order dated 4th June 2001, disposed of OMP No.206 of 1998 filed by Group D. The plea of the petitioners therein that the property at 28, Community Centre, EOK which earlier was the property of M/s. A.V. Industries, a partnership firm in which Mr. P.D. Khanna (30%), Mr. O.P. Khanna (30%), Ms. Renu Khanna (20%) and Mr. Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 11 of 45 Lajpat Rai Khanna (20%) were partners and which had been dissolved on the death of Mr. O.P. Khanna, became the subject matter of the family settlement should be handed over to the sole Arbitrator Mr. N.P.S. Bhandari as Receiver, was negatived. The Court allowed Group A to retain the said property conditional upon Mr. P.D. Khanna of Group A submitting a quarterly statement of account of rent received and expenditure incurred in respect of the said property. Mr. P.D.Khanna was to give an undertaking that he would comply with the final directions passed in respect of the said property while deciding the objections. It was held that Group A was under

an obligation to negotiate and settle the dispute with the State Bank of India ('SBI'), liquidate the liability of M/s. A.V. Industries and inform the Court about the terms of settlement.

14. By the same order dated 4th June 2001, the learned Single Judge disposed of OMP No.70 of 2001 filed by Group E. The first prayer in the said petition was for a direction that the amount payable to the Delhi Development Authority ('DDA') towards the composition fee for extension of the period for constructing on plot No. C-7, OIA, Phase-I, New Delhi be paid from the sale proceeds of the Vasant Vihar property and for a direction that a sum of Rs. 40,00,000 be released to Group E for raising construction and for meeting the incidental expenses of such construction on C-7, OIA, Phase-I. The other prayer was that the partners of OIFP should execute a power of attorney (POA) in favour of Mr. P.P. Khanna for all intents and purposes before the DDA and other government authorities. However, during the hearing, Group E informed the Court that they had decided to pay the dues of DDA and raise the construction from their own resources. The Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 12 of 45 prayer for execution of the POA in favour of Mr. P.P. Khanna was agreed to by all the parties.

15. Group C was held entitled to withdraw the money payable to the Income Tax Department ('IT Department') on account of capital gain tax on the sale of property at Vasant Vihar, New Delhi. Group C was, however, to submit the necessary documentation in respect thereof.

16. By a judgment dated 15th March 2002, the learned Single Judge rejected all the objections to the Award raised by Group A and Group B. The judgment noted that the parties had taken possession of the various properties which had come to their respective shares in terms of the FS dated 9th May 1997 which was also ordered in the Award. It was also noted that most disputes had been settled and the liability of the creditors substantially discharged. The objection of Group A and Group B that Mr. Bhandari exceeded his jurisdiction as Arbitrator by valuing the properties and that he was biased against them were negatived. It was held that the objections as to the role of Mr. Sahni were without merit because, in any event, he did not act as an Arbitrator, notwithstanding the agreement dated 25th July 1998. The Court noted that the valuation of the properties was yet to take place, notwithstanding the FS. It was held that the Award was not against public policy.

17. While the appeals of Groups A and B against the order dated 15th March 2002 [FAO (OS) Nos.159-160 of 2002] were pending, the learned Single Judge passed orders on 23rd October 2003 as regards the disbursement of the Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 13 of 45 dues of certain workmen of PEW. The said payments were made from the sum of Rs. 1,00,00,000 lying in the account of the arbitral proceedings.

18. The said payments were recorded in an order passed by the DB on 19th March 2004 in CA Nos. 1031-1056 of 2003 in FAO (OS) No.159-160 of 2002. Certain other directions in that regard were issued on 15th March 2007.

Judgment of the Division Bench

19. The DB disposed of FAO (OS) Nos. 159-160 of 2002 by a judgment dated 1st August 2008. During the course of hearing, while Groups B, C and D expressed that they had no objection to Group A retaining the property at 28, EOK, New Delhi, Group E objected to it, since, according to them, the present value of the said property had increased several fold.

20. Two broad issues arose for determination by the DB. The first was whether the Award could have been passed by two Arbitrators. The DB held that no such ground had been raised at any time before the learned Single Judge or even in the Memorandum of Appeal. Relying on the decision in Narayan Prasad Lohia v. Nikunj Kumar Lohia 2002 (3) SCC 572, the DB negatived the plea.

21. The second issue concerned the objection of Group A to the Award on merits. The DB held that Clause 9 of the Award which dealt with the rights and entitlements of Group A was patently unreasonable and irrational. It was observed that while the valuation of the properties was an exercise remaining to be undertaken at the time of the FS, the essential agreement as Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 14 of 45 regards the identity of the properties had attained finality. It was observed that if Clause 9 of the Award was given effect to, Group A would be deprived of 28, Community Centre, EOK. This was not intended by the FS. The question of payment of any monies to the learned Arbitrator did not arise since money had to be distributed on pro rata basis among the groups. Further, there was no question of ordering forfeiture of the sum of Rs. 15,00,000 paid by Group A in the event of their not paying Rs. 1,34,00,000. The DB observed that if after the sale of the property interest @ 18% on Rs. 1,34,00,000 had to be deducted, Group A would not only get nothing but would ending up paying sums which were non refundable. The DB concluded that the said stipulation read together with Clause 18 deprived Group A of the property falling to their share and, therefore, was not a fair resolution of disputes as far as Group A was concerned.

22. It was consequently held by the DB as under:

"25. At the same time, this Court is conscious that the Award has been substantially worked out by the parties. In fact Group B also appears to have complied with the Award substantially. This Court therefore considers it to be interests of justice to partially modify Clause 9 and Clause 18 of the Award in so far it concerns the property at C-28, Community Centre, East of Kailash which has fallen to the share of Group A. It is directed that within a period of eight weeks from today, Group A will deposit in this Court the balance sum of Rs. 84,07,000 (i.e. Rs. 1,34,07,000/- minus Rs. 50 lakhs) together with the simple interest at 18 per cent per annum from the expiry of 90 days after the date of the Award till the date of payment. Upon this payment being made by Group A the property at C-28, Community Centre, East of Kailash will be transferred to Group A. The direction contained in Clause 18 that constructive possession of the property would remain with the Arbitrator till the entire amount is worked out is hereby set aside.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 15 of 45

The possession of the aforementioned property will, subject to Group A abiding by the above direction, remain with Group A. The authorities concerned will act on the certified copy of this order to effect the necessary changes in the records. The rest of the Award is not being interfered with and will be worked out in terms thereof in accordance with law. It will be open to the parties to institute appropriate proceedings to ensure that their respective pro rata shares of the monies deposited in this Court are made available to each of the groups."

23. On 19th September 2008, the learned counsel for Group A wrote to the Registrar General ('RG') of this Court enclosing a pay order in the sum of Rs.2,27,41,000, which comprised of the principal sum of Rs. 84,07,000 with simple interest @ 18% per annum with effect from 1st April 1999 till the date of payment, i.e., 18th September 2008. It was explained that the interest component (after rounding off) worked out to Rs. 1,43,34,000 and, therefore, the total sum of principal + interest worked out to Rs. 2,27,41,000.

The Execution petitions

24. In Execution Petition No.199 of 2009 filed by Mr. Ashwani Khanna of Group D, an order was passed by the Court on 13th October 2009. A statement was made by Group A that it would either return the vertical boring (BIG) machine in working condition to Mr. Ashwani Khanna of Group D within four weeks or, if he agrees, purchase it from him after paying a mutually agreed price. The liability of Rs. 1,000 per day for use of the machine as directed by the Arbitrator was agreed to be deposited with the RG. Although Mr. Ashwani Khanna pleaded that it should be paid directly to him, the Court directed that it should be invested by the RG in a fixed deposit receipt initially for a period of 45 days. Pursuant to the above Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 16 of 45 order, on 24th November 2009, Group A deposited a sum of Rs.39,68,000 in this Court for the said machine. The said sum was released to Group D pursuant to Orders dated 12th January 2010 and 7th April 2011 in Ex. Pet. 233/2009.

25. The other groups filed execution petitions which were clubbed together for hearing. Group B filed IA No.16414 of 2011 alleging that Group A had failed to comply with the judgment dated 1st August 2008 of the DB. According to Group B, Group A had to deposit a sum of Rs. 68,57,232 in the Court. Group B contended that by wrongly interpreting para 25 of the judgement of the DB, Group A had changed its meaning, significance and consequence. Group B accordingly sought a recall of the said judgment. The said application was dismissed as withdrawn on 23rd March 2012.

26. Group B also filed EA No.393 of 2011 asking Group A to deposit the differential sum of Rs. 96,85,840 in compliance with the DB order of 1st August 2008. This has been denied by Group A in a reply filed on 27th July 2011. Group A contends that Group B has not paid the notional monthly rent of Rs. 2,33,000 for 212 OIE into the family pool apart from Rs. 36,04,000 which was directed to be paid as per the Award. It was prayed that the said sums should be directed to be paid together with interest @ 18% p.a. for the period of delay.

Summary of reliefs sought

27. The reliefs sought in the execution petitions and the written submissions of the different groups can be summarized as under:

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 17 of 45

Group A (Execution Petition No. 283 of 2009)

(i) Groups B to E were to execute the necessary documents to facilitate the transfer of the properties which have fallen to the share of Group A, i.e., CC-

17 Kalkaji, 22 OIE, 28 Community Centre EOK and Plot No. B-258 OIA Phase-I.

(ii) The property/house tax of 28 Community Centre, EOK to be paid out of the family pool.

(iii) Sales tax liability of PEW was to be discharged from the family pool. Group A to be held entitled to enjoy 22, OIE, on which PEW was situated, without any hindrance on account of family liability.

(iv) Group B was liable to pay the notional rent for the property at B-258, OIA to Group A from 1st January 1999 till the date of payment as per schedule VII to the Award.

(v) Even after M/s. AV Industries stood dissolved in 1998, Group B continued to conduct business under the same name and held out that the original partnership continued. All the personal liabilities of vendors and payments to third parties on account of M/s. AV industries were to be borne only by Group B. Any property tax vis-à-vis 212, OIE, New Delhi had also to be borne only by Group B. Group B had rented out the property since 1994. The property tax increased with Rental Value being Rs. 53,29,280/- with effect from 1st April 1997. Electricity dues of 212 OIE were not family Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 18 of 45 dues, but the liability of Group B. Group B was yet to deposit Rs. 36,04, 000/- in the family pool and clear its accumulated liability.

Group B (Execution Petition 55 of 2010)

28. (i) Group A had not paid the full amount of differential interest @ 18% that had to be deposited pursuant to para 25 of the order dated 1st August 2008 and had made only partial payment on 15th September 2008. A sum of Rs. 84,07,000 had to be paid by Group A for the property at C-28 Community Centre, EOK. Group B was entitled to the share of notional rent in respect of the said property.

(ii) Group C was liable to put back into the family pool the refund which they got from IT Department on the capital gain tax vis-à-vis the Vasant Vihar property which worked out to Rs. 34, 58, 306 together with interest @ 18% per annum from 10th October 2001 till 30th September 2009 as mentioned in Schedule VI to the award.

(iii) Group C had to pay BOI Rs. 7,00,000 on the account of OIFP in respect of the property at C-7/C-8, OIA, which stood hypothecated to BOI. This was Group C's personal liability. Group C also had to discharge the liability towards the workmen of OIFP amounting to Rs. 4,00,000/- as per Schedule VI of the Award. Group C had also to pay Rs. 3,00,000 for discharging the liability of Hindustan Cold Storage. Group C was also liable to pay Rs. 14,00,000 towards the personal loan of Mr. Y.P. Khanna borrowed from SBI as per Schedule VI to the Award.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 19 of 45

(iv) The net amount payable to Group C had to be reduced by Rs. 5,00,000 and pegged to Rs. 2,25,00,000 from Rs. 2,30,00,000 as per Annexure - c to the Award consistent with the value of that part of the property at Kalkaji Extension which had fallen to the share of Group C.

(v) There were other liabilities not forming part of the Award which had to be discharged under Court orders. These included:

(a) Liability towards workmen of PEW in the sum of Rs. 3,28,758 directed to be paid in terms of order dated 21st April 2004 in FAO (OS) 159 of 2002.

(b) Capital gain tax of A-9/13-C, Vasant Vihar, New Delhi, amounting to Rs. 68,80,000/-

(c) The dues of Employees' State Insurance Corporation for the period April 1993 to March 1996 in respect of M/s. AV Industries (to be paid by Group B).

(vi) Group B cannot be asked to pay the notional rent since the payments if any decided by the Court against Group B have to be deposited in the family pool, of which a proportionate share of 1/5th has to come to the share of Group B. It is pointed out that while calculating the liability of Group B of Rs. 36,04,000 the Award had accounted for the liability of Rs. 17,00,000 on account of DD-7, Kalkaji Extension and the plot of PPW. Since the said amount had already been paid, there was no further liability. It is pointed out that Group B has also paid Rs.24,34,077 towards house tax, power charges, restoration of electricity connection and other liabilities of 212, OIE.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 20 of 45

29. Group B filed an affidavit dated 12th September 2012 stating inter alia as under:

(i) It had cleared all the dues of PPW at DD-7 Kalkaji, from its personal funds

(ii) It had already paid liabilities in excess of the amount of Rs. 36, 04, 000 which actually had to be paid out of the family pool as per the Award

30. On 8th October 2012, Group B filed a synopsis listing out the liabilities of Groups A and C respectively.

Group C (Execution Petition 398 of 2008)

31. Group C filed an additional affidavit through Mr. Y.P. Khanna on 27th January 2009 stating that he handed over industrial property at C-7/C-8, OIA during the course of arbitration and the same is now in possession of Group E. He also stated that Group E did not handover possession of about 9000 sq. ft of D-I, OIA and never challenged the Award dated 1st January 1999.

32. There is also a claim made by Group C against Group D on the question of the shearing blades. It is also alleged that Group E has not handed over the electricity connection at D-1, OIE. Group C claims to have paid a sum of Rs.35,000 against the decretal amount of Rs.4,89,000 in regard to the outstanding bank loan of M/s Poly Vinyl Plastic Products payable to SBI. Since SBI is ready for a settlement, Group C states that the decretal amount be released to SBI and Group C be reimbursed Rs. 35,000 along with interest @ 18 % p.a. which finally amounts to Rs. 1,17,425. It is further Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 21 of 45 submitted that the interest on Rs. 31,49,000/- (to be received by Group C from the family pool as per calculations in Annexure -c) had to be paid to Group C from 1st January 1999 to 31st October 2008. The share of Group C of the notional rent as per Schedule VII to the Award in respect of D-1, OIA from 1st January 1999 has been calculated and fixed at Rs.88,888. It is further pointed out that DD-7, Kalkaji, New Delhi has to be sub-divided for transfer of the same to Group C and expenses for the same to be borne by the family pool.

33. On 21st May 2013 in an application moved on behalf of Group E, an order was passed by the Court bringing on record the legal representatives of late Mr. P.P. Khanna.

Queries by the Court

34. On the same day, i.e. 21st May 2013, the Court required the parties to give their written responses to the following 'general' questions and questions particular to each group:

General Questions:

1. Has the Award been implemented in respect of all Category B properties?

2. Have all Category A properties been distributed in terms of the family settlement?

3. Has POA been executed in favour of P.P. Khanna by the partners of OIFP?

4. Has Bank of India appropriated sums from the sale proceeds of the Vasant Vihar property in terms of the Judgment dated 21st April 2001?

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 22 of 45

5. Has Group A settled disputes with SBI and liquidated the liabilities of M/s. A.V. Industries?

6. What is the exact amount of refund received by Group C from the IT department and when was it received?

7. Have all the dues of the workmen of PEW been settled (whose liability is this and is it Rs. 3,28,768 in terms of Order dated 21st April 2004 in FAO 159/2002)?

8. Has the Rs. 39,68,000 deposited in Court by Group 'A' been kept in fixed deposit and should it not now go to Group D?

9. Has Rs. 68,80,000 to be paid as capital gains tax in respect of Property A-9/13-C Vasant Vihar from the family property?

10.Loan of Poly Vinyl Plastic Products repayable to SBI- should it be paid from the family pool and Group C be reimbursed Rs. 35,000 with interest @ 18% p.a. being Rs. 11,74,425?

11.Is Group C entitled to interest on Rs. 31,49,000 from 1st January 1999 to 31st October 2008?

12.Is Group C entitled to notional rent for D-1, OIA from 1st January 1999 (Rs. 88,888 or Rs. 71,887 per month)?

13.Should there be a subdivison of DD-7, Kalkaji for transfer to Group C and expenses to the family pool?

14.What about payment of House tax as regards 28, EOK?

15.Have Group B liabilities (DDA dues) as regards B-258, OIA been paid?

16.Has Group B paid Rs.40,03,479 in excess to the family pool?

17.What is the liability of the family pool as regards the outstanding loan of the Delhi Finance Corporation.

18.Does interest on Rs. 1,06,26, 000/- from 1st January 1999 to 21st April 2011 @ 18 p.a. have to be paid to Group E?

19.Issue regarding four cranes at D-1,OIA which is claimed by Group C from Group E (CCP 103 of 2009)

20.What is the amount as of today in the family pool?

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 23 of 45

Questions to Group A

1. What documents have to be executed by Groups B to E in favour of Group 'A' regarding the transfer of 22, OIE; 28, EOK and B-258, OIA and CC-17, Kalkaji?

2. Whether the property tax as regards 28, EOK is to be paid from the family pool?

3. Whether the sales tax liability of PEW has also to be paid from the family pool?

4. When was the sum of Rs. 15,00,000 paid to the Arbitrator by Group 'A'? (was it 25th January 1999?)

5. When was Rs. 35 lakhs (or Rs. 28 lakhs) paid to SBI by Group 'A' pursuant to the order dated 4th June 2001 in OMP 206/1998? Was it 31st October 2001?

Questions to Group B

1. Has Group B paid Rs. 36,04,000 in terms of the DB judgment to Group A?

2. Has it paid notional monthly rent/property tax/electricity dues of Rs.2,33,000 for 212, OIE?

3. Has Group B paid the notional rent as regards B-258 OIA to Group A from Ist January 1999 till date of payment as per Schedule VII of the award?

4. Has the ESIC liability in respect of M/s. AV Industries from April 1993 to March 1996 been paid?

5. Have the vendors and workers of M/s. AV Industries been paid? And by whom?

6. Has Group B relinquished its rights in 18, OIE in favour of Group D and executed the necessary documents for the same(There are similar claims by Group D against Groups C and E)

7. Has Group B executed the necessary documents to transfer DD-7 Kalkaji to Group D?

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 24 of 45

Questions to Group C

1. Is the refund from the IT dept. Rs. 34,58,306 and is interest on the same payable from 10 October 2001 till 30th September 2009.

2. Has Group C to pay Bank of India Rs.7 lakhs on account of OIFP?

3. Does Group C have to pay Rs.4,00,000/- towards workmen's dues of OIFP?

4. Has it to pay Rs.3,00,000 for discharging the liability of Hindustan Cold Storage?

5. Has it to repay SBI Rs.14,00,000 towards the personal loan of Y.P. Khanna?

6. Has the net amount payable to Group C reduced by Rs. 5 lakhs?

7. Does Group C owe Group E Rs. 6,00,000 for the OIFP liabilities settled by Group E?

Questions to Group D

1. Is Group D entitled to storage charges for the shearing blades from Group C?

2. Is Group D entitled to interest @ 18 % p.a. from Ist January 1999 till 21st April 2011 amounting to Rs. 26,77,320 on Rs. 12,06,000, which they were entitled to as per the award?

Questions to Group E

1. Whether the electricity connection and cranes at D-1, OIA have been handed over to Group C? [CCP(C) No. 103 of 2009]

2. What is the exact amount of MCD tax to be paid by Group E?

35. Each of Groups have submitted their respective responses to the above questions on various dates in July 2013. Group A has also filed an affidavit dated 5th July 2013.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 25 of 45

The position regarding the amount deposited in the Court

36. The registry was also asked to inform the Court about the amounts deposited in the registry and the disbursements made. The Registry has provided details in excel spreadsheets which are placed on record. It shows the amounts already released to Groups C, D and E. The position as on 24th August 2013 as regards the balance amounts in fixed deposits is as under:

(i) In Suit No. 1275 of 1999 regarding the Vasant Vihar property, the present value of the FDR is Rs.1,36,60,046 and its maturity value is Rs.1,58,40,604 (maturity date being 30th January 2015);

(ii)In FAO (OS) No. 159 of 2002, the balance amount is Rs. 1,04,16,824;

(iii) In Ex. Petition No. 199 of 2009 the balance amount in Rs.

52,83,008 subject to TDS.

The amounts deposited in other matters if any have been fully utilised.

Amount payable by Group A

37. The first question to be addressed is the amount payable by Group A in terms of para 25 of the judgment dated 1st August 2008 of the DB. The DB had in its judgment proceeded on the basis that Group A had paid Rs. 15 lakhs to the Arbitrator and Rs. 35 lakhs to SBI and a balance amount of Rs. 84,07,000 was asked to be deposited by Group A within eight weeks from the date of the DB's judgment together with simple interest @ 18% p.a. "from the expiry of ninety days after the date of the Award till the date of payment." Group A deposited Rs. 2,27,41,000 on 15th September 2008 which was within the period of eight weeks from the date of the DB's judgment. The calculation filed by Group A in this regard is as under:

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 26 of 45

 Principal Sum                                                Rs. 84,07,000

Interest payable from 1.4.1999 till
  19.9.2008 (9 years and 172 days)                         Rs.1,43,32,438

Total sum to be deposited                                   Rs. 2,27,39,438

Amount actually deposited                                  Rs. 2,27,41,000

38. The fact that Rs. 15 lakhs was paid to the Arbitrator on 25th January 1999 by Group A is not in dispute. However, from the affidavit dated 5th July 2013 filed by Group A it is now confirmed that Group A paid SBI a sum of Rs. 34,22,345 towards dues of M/s A. V. Industries/Alloy Castings in two lots ending on 10th April 2002. The DB was not shown the precise calculations and therefore it was not known at that time that Group A paid the above sum to SBI only in April 2002. What the DB intended was that simple interest at 18% per annum should be paid on the outstanding amount from ninety days after the expiry of the date of the Award i.e. from 1st April 1999 onwards till the date of payment.

39. The position that emerges is that as on 1st April 1999 a sum of Rs. 1,19,07,000 (Rs. 1,34,07,000 - Rs. 15,00,000) was payable by Group A and therefore, in terms of para 25 of the DB's judgment, on that sum simple interest at 18% per annum began to run and was payable. In the calculation of Group A this element has been missed and it has calculated the interest payable on the sum of Rs. 84,07,000 not acknowledging that it paid SBI Rs. 34, 22,345 only on 10th April 2002. Therefore Group A has not calculated interest on Rs. 1,19,07,000 for the three year period from 1st April 1999 till 10th April 2002. On the basis of the affidavit dated 5th July 2013 of Group A, Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 27 of 45 the amount due from it has been calculated by Group B by accounting for the above interest component. The Court accepts the said calculation as reflecting the correct position. The amount payable by Group A would therefore be as under:

Principal amount payable on 1st January 1999 under Rs. 1,34,07,000 the Award Less amount paid to the Learned Arbitrator on 25th Rs. 15,00,000 January 1999 Amount payable by 31st March 1999 as per the Award Rs. 1,19,07,000 Interest on Rs. 1,19,07,000 @ 18% per annum from 31st March 1999 up to 10th April 2002 (for 36 months and 10 days) Rs.

64,29,780 Less:

Amount paid to the State Bank of India on 10th April 2002 as per the order of the Single Judge Rs.

34,22,345 Rs. 30,07,435 Balance of interest payable after adjustment of amount Paid to State Bank of India as calculated below Total amount payable as on 1st April 2002 Rs. 1,49,14,435 (Rs. 1,19,07,000 principal amount + interest Rs. 30,07,435) Interest on Principal amount of Rs. 1,19,07,000 @ Rs. 1,40,20,925 18% per annum from 1st April 2002 up to 15th September 2008 (78 months & 15 days) Total amount payable as on 15th September 2008 Rs. 2,89,35,360 Less: Amount paid on 15th September 2008 Rs.2,27,41,000 Balance of principal amount due as on 16th September Rs. 61,94,360 2008 Interest on Rs. 61,94,360 @ 18% per annum from 16th Rs. 53,42,635 September 2008 till 30th June 2013 (57 months & 15 days) Balance amount payable as on 30th June 2013 Rs. 1,15,36,995 Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 28 of 45

40. Therefore, in terms of the above calculation the balance sum of Rs. 61,94,360 which was payable by Group A as on 15th September 2008, will have to be paid together with simple interest at 18% per annum from that date till the date of payment. On that basis the sum payable as on 30th June 2013 is calculated above as Rs. 1,15,36,995. This will now be increased by the further corresponding interest amount till the date of actual payment by Group A, which should not be later than 30th September 2013.

Amounts payable by Group B

41. In terms of the Award, Group B had to pay Rs. 36,04,000 to the family pool. In response to a specific question posed to the Court in this regard, Groups A, C, D and E are categorical that this amount has not been paid and should now be directed to be paid by Group B into the family pool with simple interest @ 18% p.a.

42. On the other hand, Group B refers to para 17 of the Judgment dated 1st August 2008 of the DB which refers to the submission made on its behalf that it had already paid Rs. 35,00,866 even prior to the judgment of the DB. In fact, in its written submissions, in answer to the queries, Group B states that the total liabilities paid by it between 1st January 1999 and 31st January 2010 are Rs. 76,07,479. It is stated that these liabilities had accrued on or before 1st January 1999. It is stated that the excess amount that has been paid by Group B is Rs. 40,03,479 which is required to be refunded to it from the family pool.

43. The Court has perused the affidavit dated 10th July 2008 of Mr. Vinod Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 29 of 45 Khanna filed in FAO (OS) No. 160 of 2002. In para 4 of the said affidavit, a breakup is given of Rs. 35,00,866 paid by Group B. Reference is made to payments towards the liability of DD-7, Kalkaji and PPW and various other payments made on account of the liability of AV Industries, PEW as well as sales tax liabilities of M/s. A. V. Industries. The bank statements in support of such payments have been placed on record.

44. The question that arises is whether the above payments made by Group B can be taken to be payments made to the common pool by Group B in terms of the Award? The Award as already noted was made on 1st January 1999. At no point in time did Group B inform this Court when it challenged the Award that it was making the above payments pursuant to the Award. What is noted in para 17 of the Judgment dated 1st August 2008 of the DB is only the contention of Group B in this regard. There is no finding as such in regard to the said submission. The line appearing in para 25 of the judgment of the DB that Group B "also appears to have complied with the Award substantially" is in context of the previous sentence regarding the award having been "substantially worked out by the parties." It was in acknowledgment of the fact that the Award was implemented as regards Category B properties. This is not to be construed as a finding that Group B has in fact discharged all its liabilities under the Award. None of the other Groups were informed by Group B that it was making the said payments towards the discharge of its liabilities under the Award. The fact remains that Group B has not made the payment till date of the aforementioned sum to the family pool. If none of the groups agree that Group B has in fact discharged its liabilities, it is not possible to permit Group B to treat the Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 30 of 45 payments it claims to have made after the Award, as discharge of its liability to make payment to the family pool. If indeed, the liabilities against which Group B claims to have made payments arose prior to the date of the Award i.e. 1st January 1999 then clearly there is no reason why Group B should be excused from discharging the liability in terms of the Award by making payment to the family pool. Consequently it is not possible to accept the plea of Group B that the payments made by it subsequent to the Award should be treated as not only full discharge of its liability under the Award but in fact be treated as excess payment.

45. A direction is accordingly issued to Group B to deposit in the Court, not later than 30th September 2013, a sum of Rs. 36,04,000 together with simple interest @ 18% per annum from the date of the Award till the date of payment.

46. In response to the question whether Group B has paid the notional monthly rent of Rs. 2,33,000 for property at 212, OIE, the uniform response of Groups A, C, D and E is in the negative. However Group B claims that it has already discharged all its liabilities under the award by relying on the same affidavit of Mr. Vinod Khanna referred to earlier. Its standard response is that Group B paid Rs. 36.04 lakh "directly to the creditors of the family pool instead of depositing it first in the family pool and then getting it released to the creditors. Since attachments were issued and there were threats of arrest, therefore, there was no time left for Group B to route the payment through the family pool. Merely not routing the payment through Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 31 of 45 the family pool cannot be made a ground for fastening any liability of notional rent upon Group B."

47. The above explanation cannot be accepted. Group B has to comply with the Award and make payment of the notional rent for 212, OIE in terms of the Award for the time during which it retained possession of 212, OIE. Accordingly it is directed that Group B will deposit in the Court, not later than 30th September 2013, the monthly amount of Rs. 2,33,000 calculated for the period from the date it took possession of the property at 212, OIE till the date of payment together with simple interest @ 18% p.a. from the date of the Award till the date of payment.

48. A question was formulated regarding notional rent paid for Plot No. B- 258, OIA by Group B. In response thereto while both Groups B and C have stated that no such notional rent is payable in terms of the Award, Group A has stated that the said notional rent has not been paid by Group B. However, the Court finds that Schedule VII of the award does not list the property at B-258, OIA as among the properties for which notional rent has been computed. The contention of Group B and C in this regard appears to be correct.

49. As regards Group B's liabilities to DDA towards the property at B- 258, OIA, Group B claims that this has been discharged by the Arbitrator himself to the DDA directly. This is, however, denied by the other Groups. The Court Commissioner (CC) to be appointed by the Court hereafter will require Group B to place before him proof of discharge of the dues owing to Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 32 of 45 the DDA qua the property at B-258, OIA within four weeks failing which the CC will ascertain from the DDA on the strength of this order whether and if so what amount is owed to the DDA. If the DDA communicates that a certain sum is due, the CC will call upon Group B to deposit the said sum in the Court within a fixed time period.

Amount payable by and to Group C

50. Group D has raised the issue about Group C being entitled to Rs. 5 lakhs less than what has been determined under the Award. The Court is not inclined to alter the Award in these execution proceedings. As per Annexure-c to the Award, Group C was to receive Rs. (50.49-20+1) lakhs = Rs. 31.49 lakhs.

51. As regards the refund received by Group C from the Income Tax Department, all Groups are agreed that a sum of Rs. 34,58,306 was received by Group C as IT refund by voucher dated 10th October 2001. Group C has however explained that subsequently an additional demand of Rs. 3,06,020 plus penalty along with interest was raised by the IT department and therefore, the total amount payable to the IT Department was enhanced to Rs. 38,61,044.

52. As regards the claim by Group C for interest on the sum of Rs. 31,49,000 from the date of the Award, the submission of Group C is that since it has already received an amount of Rs. 30,18,953 by way of refund from the Income Tax department on account of excess payment of capital gains tax, it is claiming no interest on its proportionate share of Rs.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 33 of 45

31,49,000 since 10th October 2001. However, Group C prays that the excess amount received from the IT department may be proportionately set off against its share from the family pool and on the balance it should be paid 18% simple interest.

53. The CC will accordingly determine the amount payable to Group C by setting off the amount received by it from the IT department. The amount found so payable will be paid to Group C together with simple interest @18% per annum, from the date of the Award till the date of payment.

Other Claims of Groups C, D and E

54. Group C claims that it should be compensated for the four cranes which it says were available at D-1, OIA and were wrongfully removed by Group E. Group C has also filed CCP 103/2009 in this regard. Group E says that as per the Award only one crane with electrical connections was to be handed over to Group C and this was done on 8th June 2009.

55. The Award states that "the claims between Group C seem to be settled in lieu of Mr. P.P. Khanna relinquishing his electrical connection as well as the crane in favour of Mr. Y.P Khanna....." The Award does not talk of Group E having to hand over more than one crane. The consequence of the failure to do so within 45 days is not spelt out in the Award. This will have to be the subject matter of a separate claim by Group C for which evidence may have to be led. It is not possible to entertain this claim of Group C in the present execution proceedings.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 34 of 45

56. Likewise the Award is silent on question of storage charges having to be paid by Group C to Group D for the shearing blades. So directions cannot be issued in that regard by this Court in these execution proceedings.

57. The order dated 29th May 2009 passed by the Court in EA 318/2009 in EP No. 398/2008 directed that in the event Group E failed to hand over the premises at D-1, OIA by 15th June 2009, then the bailiff would take possession and Group E would have to pay Rs.1,00,000 as costs to Group C. Admittedly Group E handed over possession of the said premises with one crane and electrical connection on 8th June 2009. So the question of Group E having to pay Rs. 1,00,000 as costs does not arise. As regards any further claim that Group C may have for damages it will have to pursue those independently.

58. As regards MCD Tax, Schedule VI does not talk of this having to be paid from the family pool. Therefore, it is not possible to direct that Group E should be reimbursed the MCD Tax paid by it. The CC will ascertain if there are any other liabilities like ground rent that have to be paid. The arrears up to 8th June 2009 will be paid by Group E. Thereafter it will be borne by Group C.

59. Schedule VII to the Award determines the notional rent payable in respect of each of the properties. For D-1 OIA, the notional rent is Rs. 2,50,000 per month. So the share of each group has been determined @ Rs.2,67,000. Schedule VII further states "the group receiving in excess of Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 35 of 45 Rs.2,67,000 notionally shall pay into the family pool and continue to do so till the implementation of the award."

60. In the circumstances, there was no occasion for Group E to pay anything into the family pool. The Award does not spell out the consequence if one Group does not handover to the other a certain property within the stipulated time. Therefore, although admittedly Group E handed over the property at D-1, OIA to Group C only on 8th June 2009, it is not possible for the Court at the stage of execution of the Award to determine what compensation should be paid by Group E to Group C as a result thereof. Group C can institute independent proceedings in accordance with law for this purpose.

Interest payable to Group E

61. On the question of interest payable to Group E, on the amount already released to it by order dated 8th April 2011, since the Award is silent on this aspect, in terms of Section 31 (7) of the Act, Groups C, D and E would be entitled to simple interest@ 18% p.a. on the sums payable to each of them from the date of the Award till the date of payment. Although it has been submitted by Groups A, C and D that interest at all would be payable to Group E only from the date of Group E surrendering possession of D-1, OIA to Group C, an order to that effect would amount to altering the Award which this Court cannot possibly do.

Vasant Vihar property dues

62. On the question of BOI appropriating sums from the sale proceeds of the Vasant Vihar property in terms of the judgment dated 23rd April 2001 of the learned Single Judge, Group E has stated that BOI is yet to release the Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 36 of 45 property documents of C-7/C-8, OIA which were hypothecated to BOI, since according to BOI, Group C has yet to discharge their entire personal liability. Group B has pointed out that BOI has preferred an appeal (RFA No. 17 of 2002) against the final order and that as per Schedule VI of the Award this is the personal liability of Group C. All Groups agree that in terms of the Award, a sum of Rs. 20 lakhs has already been debited to Group C for various liabilities.

63. In light of these submissions, the Court directs that the CC will take the following steps in relation to the sale proceeds of the Vasant Vihar property:

(i) Ascertain the balance amount of the sale proceeds of the Vasant Vihar property lying in Fixed Deposit (together with interest accrued)

(ii) Get in touch with BOI to ascertain the status of the appeal filed by them as well as the amount still owing to BOI (subject to the result in RFA No. 17/2002).

(iii) On the basis of (ii) above and after accounting for the sum of Rs. 20 lakhs already debited to Group C under the Award, and making corresponding payment to BOI from the family pool, get Group C to settle the further sums owing by Group C to BOI. The CC will ensure that the entire dues of BOI are thus settled.

(iv) Upon (iii) above being completed, get the documents pertaining to C-7/C-8, OIA released from BOI and hand them over to Group E. Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 37 of 45 Family Pool liabilities

64. As regards the dues of the workmen of PEW, it is agreed by all the Groups that this worked out to Rs. 3,28,768 in terms of the Order dated 21st April 2004 of the DB in FAO (OS) No. 159/2002. This liability was admittedly incurred even prior to the passing of the Award. It is to be paid from the family pool.

65. The liabilities of Hindustan Cold Storage have to be discharged from the family pool as per Schedule VI to the Award. The CC will ascertain what the dues are and arrange to make the payment from the family pool.

66. On the question of sub-division of DD-7 Kalkaji in favour of Groups C and D, the Court is of the view that the expenses for such sub-division must be borne by the respective groups and not from the family pool since the Award does not provide for it.

67. The liabilities to be met from the family pool are set out in Schedule VI to the Award. This does not include the loan of Delhi Finance Corporation (DFC). Therefore the claim of Group C that it should be reimbursed for paying the DFC loan cannot be entertained.

Interest to Group D

68. As regards the sum of Rs. 39,68,000 which was deposited by Group A and released to Group D pursuant to the Court Orders, it is directed that the interest on the FDR for the period 12th January 2011 to 21st April 2011 will be released by the CC to Group D, within a period of four weeks.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 38 of 45

69. As regards the sum of Rs.12,06,000 which has been released to Group D from the family pool, the CC will ensure that simple interest on the said sum at the same rate as has been earned on the FDR with the Court for the period from 1st January 1999 till 21st April 2011 will be released to Group D within a period of four weeks.

Mutation of properties

70. On the question of execution of documents to effect mutation of various properties in the names of the respective Groups in terms of the Award , all the groups have in response to a specific query stated that this is yet to take place. Accordingly, it is directed as follows:

(i) Each Group will, within a period of four weeks ascertain and inform the CC of the documents which have to be executed by one or the other Groups to facilitate the mutation of a particular property in their name.

(ii) The CC will thereupon ensure that each of the Groups signs the necessary documentation to facilitate the mutation within a fixed time frame.

(iii) All Groups will cooperate with the CC in complying with the above directions.

Property tax of 28, Community Centre, EOK

71. As regards property tax pertaining to 28, Community Centre, EOK, while Group A states that it has to be cleared from the Family Pool, Group B states that it is its liability and that it has voluntarily made an ad hoc payment of Rs. 2.50 lakhs to the concerned department. Groups C and D Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 39 of 45 also state that this is the liability of Group B. Group E says it is the liability of Group A after it became owner of the said property.

72. The Court holds that arrears of property tax up to the date that Group A was put in possession of 28, Community Centre, EOK have to be paid by Group B. The CC will ascertain from the concerned department what the arrears of the property tax are in respect of the aforementioned property and after accounting for the sum already paid by Group B (proof of which payment should be produced by Group B before the CC), call upon Group B to deposit the balance of the arrears with the concerned department and file the receipt for such payment in Court. The necessary mutation as regards transfer of title of the said property in favour of Group A will relate back to the date on which Group A was put in actual physical possession of the property and from that date onwards the property tax liability will be that of Group A and will be paid by it.

Sales Tax liability of PEW

73. As regards sales tax liability of PEW, the Court has considered the submissions of the parties and holds as under-

(i) The sales tax liability of PEW up to the date it was taken over by Group A will be that of the family pool.

(ii)The sales tax liability thereafter will be exclusively met by Group A.

(iii) To the extent that any sales tax liability has been paid by either Group A or E for a period prior to Group A taking it Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 40 of 45 over, they will be reimbursed the respective amounts from the family pool.

(iv) The CC will write to the sales tax authorities, ascertain the arrears and current sales tax liability of PEW and in accordance with the directions in (i) to (iii) above, settle the said dues. This exercise be completed within a period of twelve weeks.

AV Industries

74. As regards A.V. Industries, the questions that have arisen concern the liability of the said firm which stood dissolved on 7th December 1988 in respect of ESIC dues as well as amounts due to vendors and workers. Group B states that it has made payment on these counts and has claimed reimbursement. Groups A, C and E state that it is the liability of Group B. Group D states that after dissolution of the firm, the said liability does not arise.

75. Since the firm A.V. Industries stood dissolved in 1988 and Group B has been carrying on its business even thereafter, any liabilities with regard to that firm should be borne by Group B alone. It would not be entitled to any reimbursement on that score.

76. Groups A, B, D and E will hand over to Group C, not later than 30th September 2013, the shares held by them in A.V. Engg. Industries Pvt. Ltd. along with the signed share transfer forms.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 41 of 45

77. Ms. Renu Khanna will tender her resignation from A.V. Engg. Industries Pvt. Ltd. and file Form-32 with the Registrar of Companies within three weeks.

Dues of workmen of OIFP

78. As regards the dues of the workmen of OIFP, after considering the submissions of the Groups the following directions are issued:

(i) The CC will ascertain and finalise the list of workmen of OIFP whose claims are yet to be settled. Notices will be issued by the CC to the individual workmen, and one notice each will be published in the local newspapers, one in English and one in Hindi, calling upon the workmen to submit their claims within a specified time period to the CC.

(ii) After completing the steps in (i) above, the CC will determine the exact amount payable to the workmen of OIFP.

(iii) If the sum of Rs. 20,00,000 debited to Group C covers the aforementioned liability then the payments determined as payable to the workmen of OIFP by the CC will be made from the family pool. To the extent that sum is insufficient for the purpose, the difference will be paid by Group C. Poly Vinyl dues

79. As regards the repayment of the dues of SBI, in the account of Poly Vinyl Plastic Products, the amount is payable as per Schedule VI of the Award from the family pool. The CC will take the necessary steps in this direction without delay and clear the entire amount within twelve weeks. As Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 42 of 45 regards the claim by Group C that it should be reimbursed Rs.35,000 paid by it on this account to SBI together with interest, the Court is not inclined to accept the said plea and in any event, this was in fact a personal loan given to Mr. Y.P. Khanna and so there is no question of Group C being entitled to refund of any sum on this score.

Appointment of Court Commissioner and his tasks

80. Although this judgment resolves many of the issues that have arisen during execution of the Award, there are many steps to be completed and directions to be complied with by the parties within the time granted by the Court for that purpose. The oversight of the compliance will be greatly facilitated if a Court Commissioner is appointed for that purpose.

81. Accordingly, this Court appoints Mr. N.P. Kaushik, a retired Additional District Judge, Flat No. 207, Type-VI, Residential Block, Karkardooma Courts, Delhi-110032 (Mobile No. 9910384663) as Court Commissioner (CC) to carry out the various steps enumerated in this judgment. His fee is fixed at Rs. 3 lakhs of which 50% will be paid in equal shares by Groups A to E within four weeks from today and the balance 50% within a further period of twelve weeks thereafter. If the work of the CC is not completed within six months from today then he will be paid Rs. 25,000 per sitting in advance by the parties who will share the said fees. The above fees are independent of the transport, secretarial and other incidental expenses that the CC may have to incur which will be reimbursed by the parties forthwith upon production of bills/vouchers.

Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 43 of 45

82. The Registry will deliver to the CC a complete set of the paper-books in the execution petitions (both a hard copy and a soft copy) within ten days. The parties will appear before the CC on 1st October 2013 at 4 pm. On that date, and as and when the matter is listed before the CC, the Registry will arrange to have the records produced before the CC by a special messenger. The venue of the sittings of the CC will be arranged within the court complex by the parties.

83. The balance amount, if any, after completion of all steps and compliance with all directions as outlined above, will be paid to the Groups in equal shares. The CC, if considered necessary, can give appropriate directions to the Registry for renewal of deposits till such time the payments as directed are made. The parties and the CC are permitted to apply to the Court for directions if there is any difficulty encountered in implementing the directions issued in this judgment. Such applications will be placed before the roster Bench.

84. Once the tasks are completed, the CC will place the matter in the first instance before the JR who will after being satisfied that all the steps have been completed place the matter before the roster bench of the Court for final orders to be passed in the execution petitions.

Conclusion

85. The contempt petition CCP (O) 103 of 2009 and the applications EA Nos. 418 of 2009, 661 of 2009 and 692 of 2009 in Ex. P No. 398 of 2008, EA No. 691 of 2009 in Ex. P. 233 of 2009, E.A. No. 556 of 2011 in Ex P. Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 44 of 45 No. 283 of 2009 and EA No. 393 of 2011 in Ex P. No. 55 of 2010 are disposed of in the above terms.

86. The formal closure orders in the execution petitions Ex. P. No. 398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 and 55 of 2010 will be passed after compliance with all directions is reported.

87. The matter is not to be treated as part-heard. Order dasti. A certified copy of this order be delivered to the CC forthwith.

S. MURALIDHAR, J.

August 30, 2013 tp Ex. P. Nos.398 of 2008, 199 of 2009, 233 of 2009, 283 of 2009 & 555 of 2010 Page 45 of 45

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Delhi High Court