Delhi High Court
M/S Mehala Carona Textiles Private ... vs M/S Rrb Energy Private Limited on 3 June, 2021
Equivalent citations: AIRONLINE 2021 DEL 843
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: June 03, 2021
+ EX. P. 34/2019, Ex. Appl. (OS) 195/2019, Ex. Appl. (OS) 210/2021 &
Ex. Appl. (OS) 211/2021
M/S. MEHALA CARONA TEXTILES PRIVATE LIMITED
& ORS.
..... Decree Holders
Through: Mr.K. Radhakrishnan, Sr. Adv.
with Mr.Anandh Kannan, Adv.
versus
M/S RRB ENERGY PRIVATE LIMITED
..... Judgement Debtor
Through: Mr.R. Chandrachud, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J Ex. Appl. (OS) 211/2021 This is an application filed under Section 151 of the Code of Civil Procedure, 1908 ('CPC', for short) for condonation of 29 days delay in re-filing Ex. Appl. (OS) 210/2021. For the reasons stated in the application the delay of 29 days in re-filing is condoned. The application is disposed of.
EX. P. 34/20191. The present petition has been filed under Order XXI Rule 11 of the CPC for execution of Judgment/Decree dated June 04, Signature Not Verified 2014 passed by the Court of IInd Additional District and Sessions Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 1 of 30 Signing Date:03.06.2021 15:35:30 Judge at Tirupur, Tamil Nadu in O.S. No. 131/2011. The prayers as noted from the petition are as follows:
"(a) Declare the Judgment and order dt.04.06.2014 passed by the Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu in O.S.No.131 of 2011 as enforceable and
(b) Order for enforcement/ execution of the same;
(c) Direct the Respondent/ Judgment Debtor to furnish security to the extent of the decreed amount along with interest pending execution and enforcement proceedings;
(d) Direct attachment and sale of assets mentioned in the Schedule of properties of the petition, issue proclamation for sale and auction the property, and the assets mentioned in the Schedule of the properties may be ordered to be attached, taken custody of and sold by auction or any other suitable mode and the notice of the said attachment may be served and affixed on the premises of the Respondent/ Judgment Debtor company;
a) Award cost of these proceedings and pass such other or further order in favour of the Petitioner/ Decree Holder as may deem fit and proper in the facts of the case."
2. The petitioners/decree-holders herein viz., a) M/s Mehala Carona Textiles (P) Ltd, a Private Ltd Company under the Companies Act, 1956, having its registered office at 36, Harvey Road, Tirupur - 641602, Tamil Nadu; b) M/s Mehala & Company, a Sole Proprietor concern, having its registered office at 34, Harvey Road, Tirupur - 641602, Tamil Nadu; c) M/s Sunrise Knitting Mills, a Partnership firm, a Government recognized Export House, having its office at Kulivayal Thottam, Kullegoundenpudur, Andipalayam Post, Tirupur - 641687; d) M/s Dharani Wind Energy Pvt Ltd, a Private Limited Company within the meaning of the Companies Act, 1956 (since name having been changed to Dharani Textiles Private Limited, as on 02.04.2008) having its registered office at No.36, Harvey Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 2 of 30 Signing Date:03.06.2021 15:35:30 Road, Tirupur - 641602, Tamil Nadu.; are sister concerns with a common promoter who is the Director of the petitioner Nos.1 & 4, Power Agent of petitioner No.3 and Sole proprietor of petitioner No.2.
3. The respondent /judgment-debtor is RRB Energy - Limited, a Limited Company within the meaning of the Companies Act, 1956 having its registered office at GA-l/B-1 Extension, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi - 110044.
4. The brief facts leading up to the filing of the present execution petition, as noted from the petition are as follows. The petitioners/decree-holders were looking for erection of Wind Energy Generators ('WEGs', for short) and eventually the respondent /judgment-debtor got in touch with the petitioners/decree-holders and represented to them that they possessed the necessary expertise in identifying suitable locations, setting up erection and commissioning of wind mills. Thereafter, the petitioner No.1 herein placed a purchase order dated November 21, 2003 for purchase of 4 WEGs with minimum guarantee generation. Simultaneously, in respect of erection and commissioning works connected with the wind mills, petitioner No.1 placed separate work orders dated November 27, 2003 and December 8, 2003 with the respondent company. Purchase orders for another 4 WEGs were placed by petitioner No.3 on September 09, 2003 and the respective erection and commission work order was placed on September 16, 2003. The purchase orders stipulated that the respondent Signature Not Verified company/judgment-debtor would provide 2 years warranty from Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 3 of 30 Signing Date:03.06.2021 15:35:30 the date of supply of the WEG covering free maintenance, operation and spares. Further, each machine (wind mill) was guaranteed for generation of 17,50,000 KWH units per annum with +/- 5% p.a. with 100% grid availability during the warranty period. Any shortfall in the generation during the warranty period would be compensated at Tamil Nadu Electricity Board ('TNEB', for short) prevailing HT tariff rates. This was guaranteed by a Corporate Guarantee dated March 26, 2004 issued by the respondent/judgment-debtor for the above said guaranteed/promised generation. Subsequently, by letter dated March 26, 2004, the respondent company/judgment-debtor confirmed the successful erection and commissioning of the WEGs at Mandapam on March 25, 2005 and requested petitioners to make necessary arrangements for insurance and security for the WEG at the earliest.
5. It is stated by the petitioners that in the month of April/May, 2004 they noticed the shortfall in the wind energy generation as was visible when the peak wind season commenced from August, 2004 which was far less than the minimum guaranteed. This was brought to the notice of the respondent company/judgment-debtor vide letter dated September 08, 2004 and again on October 16, 2004. However, the petitioners further placed orders for 16 wind energy generators on November 26, 2004 and for the Erection and Commissioning on December 4, 2004. Thereafter, in all the purchase orders the minimum guarantee generation was revised from 175000 KWH to 1600000 KWH and counter signed by the Signature Not Verified respective petitioners. All the 16 WEGs for which purchase Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 4 of 30 Signing Date:03.06.2021 15:35:30 orders were placed on November 26, 2004 were erected and commissioned on various dates. Subsequently, the 4 WEG's originally installed at Mandapam came to be re-sited on the advice of the Respondent Company/judgment-debtor to Radhapuram and commissioned on June 16,2005. Such re-siting involved damages to the petitioner of Rs.60,00,000/- which included the cost of cabling from the Grid to wind mill besides additional lands to be purchased at new site. It is also averred that during the warranty period, the respondent company did not provide any data on the production of electricity on any of the 21 windmills.
6. However, the TNEB records/ working gathered from the bills of the respective petitioner companies, it was gathered that all the 21 WEGs were producing far below the guaranteed minimum level of production and the exact shortfall could not be quantified as per the formula in the agreement. Thereafter, the petitioners took up the question of compensation in terms of the Guaranteed Minimum Generation with the respondent company with the available figures. Various meetings were held in vain and finally the respondent Company sent a letter dated February 21, 2010 to the petitioner stating they have no liability to meet the warranty and guarantee obligations.
7. It is stated that the petitioners thus filed the Suit No. OS. 131 of 2011 for recovery of total sum of Rs.8,49,65,738/- from the respondent / defendant therein; to the plaintiff No.1 therein a sum of Rs.5,61,67,981/- to the plaintiff No.2 therein a sum of Rs.72,61,869/-, to the plaintiff No.3 therein a sum of Signature Not Verified Rs.77,35,600/- and to the plaintiff No.4 therein a sum of Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 5 of 30 Signing Date:03.06.2021 15:35:30 Rs.1,38,00,288/- respectively, together with interest thereon @ 18% p.a.
8. The respondent/defendant therein filed Interim Applications in Suit No. OS. 131 of 2011 for rejecting the plaint (I.A. 1117/2011 in O.S.131/2011) as well as to summon the Registrar of Firms, Tirupur (I.A. 220/2012) directing him to produce the Register maintained in the routine course in his Office, and generally give evidence on the date of registration of the plaintiff No.3 Firm therein 'Sunrise Knitting Mills', alleged to have been registered on February 07, 1986, the names and address of the successive partners and the registered office of the said Firm. Even notes of arguments were filed by the respondents in the said Interim Applications.
9. Thereafter, Final Judgment and Order passed by the Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu in O.S.No.131 of 2011. Thus, Suit was decreed, directing the defendant to pay the plaintiffs a total sum of Rs.8,49,65,738/-, in that Rs.5,61,67,981/- to the plaintiff No.1 (petitioner No.1 herein), Rs.72,61,869/-, to the plaintiff No.2 (petitioner No.2 herein), Rs.77,35,600/- to the plaintiff No.3 (petitioner No.3 herein) and Rs.1,38,00,288/- to the plaintiff No.4 (petitioner No.4 herein) together with interest @9% until the date of the Suit, and 6% interest from the date of the Suit until date of realization. Certified cost was of Rs. Rs.63,72,435/- was also granted by the Court in favour of the plaintiffs therein.
10. It is stated that since the respondent/judgment-debtors failed and neglected to make payments under the said judgment, Signature Not Verified the petitioners have approached this Court in view of the Order Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 6 of 30 Signing Date:03.06.2021 15:35:30 of transfer/transmit dated April 23, 2018 ('Transmit Order', for short) in E.A.No.28 of 2018 in E.P.No.2197 of 2018 under Section 40 r/w Order XXI Rule 5 of CPC passed by Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu in O.S.No.131 of 2011 for execution/ enforcement of Judgment and Order passed by the Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu in O.S.No.131 of 2011, passed in their favour.
11. I may note here that a perusal of the certified copy of the Transmit Order dated April 23 2018 reads as, 'petitioner/plaintiff prays to pass an order to transmit the decree in OS:131/11 for "Saket Courts", South Delhi'. I also note from the certified copy that the learned Judge had stated 'Transmit' and put his signature below the same. As per a letter dated April 15, 2019 written by the counsel for the petitioner to the Registrar of this Court, duly attached in the 'Office Noting' file, it is stated that the petitioners had herein initially on the basis of the said transmit order attempted to file the petition before the Saket Courts, New Delhi. However, the registry therein even rejected to number the case owing to lack of monetary jurisdiction, pursuant to which the petitioner approached this Court.
12. Counter-Affidavit has been duly filed on behalf of the respondent/judgment-debtor. It is stated that the judgment/decree of which execution is being sought is an ex-parte judgment. It is stated the petitioners are even aware of the fact that the respondent/judgment-debtor had filed an application under Order IX Rule 13 for setting aside the ex-parte judgment within 30 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 7 of 30 Signing Date:03.06.2021 15:35:30 days. The CSR number evidencing such filing in the concerned court is 2260/1, 2 & 3 dated July 03, 2014.
13. It is also stated that the respondent/judgment-debtor had duly informed the petitioners/decree-holders in its reply to the legal notice dated February 24, 2015 issued by the petitioners threatening the respondent of winding up proceedings under Companies Act, 2013 that an application to set-aside the ex-parte judgment was pending. Thereafter, it was after a lapse of over four years from the passing of decree that the respondent/judgment-debtor received a Demand Notice dated May 23, 2018 issued under the insolvency & Bankruptcy Code, 2016. It was along with the said Notice that the copy of the purported execution proceedings stated to have been filed by them.
14. It is stated by the respondent/judgment-debtor that the petitioners/decree-holders were already put on notice of the steps taken by respondent/judgment-debtor to set aside the ex-parte decree vide referred to reply dated March 26, 2015 to legal notice dated February 24, 2015 and it is by suppressing the same, the petitioners had filed the execution petition behind the back of the respondent, and have managed to obtain the alleged Transmit Order. It is further stated that the respondent/judgment- debtor was never served any Notice or received any Summons from the court conducting the alleged execution proceedings. It is stated that the Transmit Order passed as alleged, and has been obtained fraudulently, without any notice of such execution proceedings.
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 8 of 30 Signing Date:03.06.2021 15:35:3015. It is stated that from the list of documents submitted, it appears that the petitioners/decree-holders have also not filed the Certified Copy of the alleged Transmit Order. Further, it is also stated that the petitioners are well aware of the fact that the respondent/judgment-debtor has a factory in Chennai, Tamil Nadu, and several other lands/properties in the State of Tamil Nadu which are valued much above the amount due under the ex-parte Judgment and decree and thus the petitioners/decree- holders seeking execution of the decree at New Delhi is only to prevent this from looking into material facts and circumstances which they have wantonly suppressed.
16. That apart it is stated that as the respondent/judgment- debtor having filed the application under Order IX Rule 13 of CPC well in time, the petitioners cannot circumvent and prevent an adjudication on the same by proceeding with the present execution proceedings.
17. Rejoinder has been duly filed by the petitioners.
18. Thereafter an Affidavit has been filed by the respondent/judgment- debtor on March 12,2020, stating that the at the time when the application under Order IX Rule 13 of CPC was filed by the respondent/judgment-debtor, there was bifurcation of courts and, this case was transferred to new court at Tirupur. It stated in the Affidavit that it took a long time for the new court to be fully functional, as only urgent cases were taken up. It is stated that the respondent/judgment- debtor herein had time and again made a mention in the open court about their predicament and requested the court to take up the matter.
Signature Not Verified However, it came to light that the files were missing from the Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 9 of 30 Signing Date:03.06.2021 15:35:30court registry, as it has been misplaced while the shifting of courts. It is further stated that there was also perennial vacancy in the IInd Additional District Court and therefore the Respondent could not get things moving and that presently also, for the last 6 months the Additional District Court, Tirupur is not functioning and the in-charge court is only hearing cases of the IInd Additional District Court which are ripe for trial. Whenever the Respondent enquired with the registry, it was informed that the vacancy will be filled up shortly, and the respondent was waiting for this to happen to take up its application.
19. It is also alleged in the said Affidavit that the petitioners have raised a time barred claim. Reiterating the stand in its counter-affidavit it is stated that when the respondent Company/judgment-debtor owns property several crores of worth in Tamil Nadu, the petitioners solely to prevent any adjudication on merits scuttled the entire possibilities by securing a transmit order, had come before this court by suppressing all the above facts. That apart, it is stated in the Affidavit that the papers/records are yet to traced and the respondent Company is taking steps to write to the Principal District Judge at Coimbatore, so that on the administrative side the Judge can direct the Registry of the IInd Additional District Court at Tirupur to reconstruct the file and thereafter either hear the case before his court or the in-charge court at Tirupur. In this regard the respondent/judgment-debtor sought 8 weeks' time to successfully put in motion and bring, up the application for setting-aside under Order IX Rule 13 for hearing before the trial Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 10 of 30 Signing Date:03.06.2021 15:35:30 court. Memos moved in this regard before the 2nd Additional District Court Tirupur were also annexed with the affidavit.
20. When the matter was listed on March 16, 2020, I heard Mr. K. Radhakrishnan, learned Senior Counsel appearing for the petitioners/decree-holders and directed the respondent/judgment- debtor to file written submissions and fixed the matter for orders on March 30, 2020. Before the date of March 30, 2020, because of COVID-19, there was lockdown and the work of this Court was suspended and in terms of notification(s) issued by this Court on the Administrative side, the matters got adjourned from time to time and the order could not be pronounced.
21. It is apposite to note that the respondent/judgment-debtor thereafter preferred an application under Section 47 of the CPC, bearing No. E.A.210/2021, reiterating the averments taken in the Affidavit filed on March 12, 2020 as well as additionally taking a stand that that an unregistered firm cannot initiate legal proceedings in its name, and the same is specifically barred under Section 69 of the Indian Partnership Act, 1932 ('Partnership Act', for short). It is also stated that the procedure as stipulated under Order XXX of Civil Procedure Code for Suits by or against firms has also been given a go-by and not followed. The prayers made in Ex. Appl. (OS) 210/2021 are the following:
"i. To dismiss the above Execution Petition as the 3rd Petitioner /JD suffers from legal infirmities under section 69 of Partnership Act and for non-compliance of the mandatory provisions Order XXX of CPC;
ii. Further, to dismiss the above Execution Petition, as the provisions of Order XXI of CPC have not be followed or Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 11 of 30 Signing Date:03.06.2021 15:35:30 complied with and the Petitioners/DHs have failed to produce the certified copy of the Transit Order dated 23.04.2018 on the file of the learned 2nd Addl. Judge, Tirupur,Tamil Nadu; and iii. Pass such other and further order(s) in favour of the Judgment Debtor/ Applicant herein as may be deemed fit and proper in the facts and circumstances of the case."
22. In this regard it is also stated in the said application that the other petitioners/decree-holders have intentionally and deliberately joined the petitioner No.3 to bring up this execution petition against the respondent/judgment-debtor, claiming themselves to be sister concerns to get over the legal infirmity suffered by the petitioner No.3 in the present execution petition by bringing such joint action. Hence, the present petition has to be dismissed on this ground alone. It is also stated that in this context that the Applicant/judgment-debtor had filed an application numbered as I.A. No. 117 of 2011 before the trial court seeking rejection of plaint on the above said grounds, which came to be dismissed and the Applicant/judgment-debtor was set ex-parte thereafter.
23. That apart it is also stated that the Transmit Order also suffers from legal infirmities as the same was secured without any notice to the respondent, which is mandatory. The petitioners/decree-holders, as per the respondent/judgment- debtor, have not filed a certified copy of the Transmit Order, as it does not bear any copy stamps, which normally all certified copies will have, and it is also seen that Execution Petition was not even numbered and the Transmit Order is not even a reasoned order. Therefore, it is stated that for having failed to Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 12 of 30 Signing Date:03.06.2021 15:35:30 produce the certified copy of the alleged Transmit Order, the same cannot be enforced.
24. Mr.K Radhakrishnan, learned Senior Counsel appearing for the petitioners submitted that the petitioners duly preferred an application under Order XXI Rule 5 read with Section 40 before the before the Court of the IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu, by verifying the same on March 19, 2018, praying to order transfer/transmit the decree dated June 04, 2014 in O.S.No.I31 of 2011, to the Court of appropriate jurisdiction at New Delhi where the respondent/judgment-debtor has its registered office, for being executed in accordance with law.
25. It is also submitted by Mr. Radhakrishnan that all the particulars sought for in the format have been furnished in the said petition and the Additional District Judge rendered an Order to transmit the decree on April 23, 2018. Further, it is submitted by Mr. Radhakrishnan that execution petition has been filed well within limitation and that the petitioners are not aware of any application under Order IX Rule 13 of CPC pending against the judgment sought for execution, as neither a copy was served upon the petitioner nor any order issuing notice was passed in the said order. In this regard, it is stated by Mr. Radhakrishnan that what was served upon the petitioners/decree-holders on June 13, 2018 was a hand written memo wherein a plea is raised to the effect that the alleged application to set aside the ex-parte decree which was not numbered and not even taken up. He also stated that when the copy was served on the counsel for the Signature Not Verified decree-holders, an objection was recorded for rejection of the Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 13 of 30 Signing Date:03.06.2021 15:35:30 said memo taking up the position that it is an abuse of the process of the Court.
26. Mr. Radhakrishnan also submitted that it is after almost 4 years from July 03, 2014 (the alleged date of filing the O IX R 13 petition), this alleged memo was filed. According to him, even after April 24, 2019 (when judgment-debtor accepted notice from this Hon'ble Court), no steps has been taken by the respondent/judgment debtor to prosecute the application under Order IX Rule 13 of CPC claimed to have been filed by them.
27. It is further stated by him that Section 39 & 40 read with Order XXI Rule 5 of the CPC does not mandate a notice being served on the judgment-debtor while rendering the transmit order. Moreover, all the particulars required under Order XXI Rule 11 have been furnished. That apart, it is also submitted by Mr. Radhakrishnan that the respondent /judgment-debtor has not till dated filed any Appeal against the ex-parte judgment nor has called in question the order to transmit the decree to this Court for execution.
28. It is also stated by him that the Registered Office premises of the judgment-debtor is situated at GA1-B1 Extension, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi - 110044 and by attachment and sale of the said registered office along with its movable properties and attachment & realization of bank accounts, securities and bonds and alike possessed by the respondent/judgment-debtor, the decree and judgment can be properly executed resulting in the realization of the awarded amount along with interest of Signature Not Verified Rs.15,06,38,470.71/- as on today(date of hearing). He submitted Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 14 of 30 Signing Date:03.06.2021 15:35:30 that the respondent/judgment-debtor was party to many litigations at Tamil Nadu and all its assets were attached and sold and that its bank accounts are already frozen. Therefore, the petitioner/decree-holder has no other alternative but to seek transmission for attachment of its immovable and movable properties of its registered office at Delhi.
29. Mr. R Chandrachud, learned counsel appearing on behalf of the respondent, on the other hand stated that decree holders/petitioners had joined together and filed the present execution petition. He stated that it is apparent that each of the petitioners, though joined together for the purpose of the present execution petition, are distinct entities, entitled for execution of separate decreetal amounts. According to him the petitioner No.3/decree-holder No. 3 has claimed itself to be a Partnership Firm, and in that strength have joined the other petitioners, plaintiffs therein in the suit, to file the present execution petition against the respondent/defendant. But nowhere in the pleadings have petitioner No.3 / decree-holder No. 3 claimed that it is a registered firm, nor has it produced any document to prove that it is a registered firm. Moreover, the other requirement of furnishing the Form giving the names of the Partners at the time of filing the suit or the execution petition is also not filed.
30. Mr. Chandrachud also submitted that it is a settled principle of law that an unregistered firm cannot initiate legal proceedings in its name, and the same is specifically barred under Section 69 of the Partnership Act. He further submitted that procedure as stipulated under Order XXX of Civil Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 15 of 30 Signing Date:03.06.2021 15:35:30 Procedure Code for Suits by or against firms has also been given a go-by and not followed.
31. In this regard, it is submitted by him that the respondent/judgment-debtor had filed an application numbered as IA.No.1117 of 2011 seeking rejection of plaint on these grounds, which came to be dismissed and the judgment-debtor was set ex-parte thereafter. It is however submitted that this Executing Court, and moreover since it is the execution of a transmit decree, it is incumbent on the decree-holders to first satisfy this Court regarding the enforceability of the decree. Therefore, without anywhere claiming to be a registered firm, nor giving its registration number and having failed to produce the Registration Certificate, and more importantly having failed to produce the certified extract of List of Partners maintained in the concerned Registrar of Firms, both as on date of filing the suit and also as on date of filing the present execution petition, the same cannot be sought to be enforced and therefore has to be dismissed.
32. That apart it is submitted by Mr. Chandrachud that in view of the provisions as contained in Or. XXI Rule 6 (b) of CPC, which requires a "satisfaction" to be recorded by the Court transmitting the decree for execution to another court and issuance of a "certificate" to that effect and the mandate in Or. XXI Rule 5 that when a decree is to be sent for execution to another Court the "Court which passed the decree shall send the decree directly to such other Court" for execution, present Execution Petition as filed by the petitioners before this Court is Signature Not Verified not maintainable. Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 16 of 30 Signing Date:03.06.2021 15:35:30
33. In this regard, it is also submitted by Mr. Chandrachud that the provisions as contained in Rule 5 & 6 of Order XXI of CPC cannot be circumvented and/or overlooked as being merely procedural and not mandatory in nature, as such an interpretation would render the said provisions completely redundant and otiose. According to him considering the said provisions in law and in view of the very peculiar facts and circumstances of this case, namely (a) the Application [CSR 2260/1,2,3 dated 03.07.2014] under Order IX Rule 13 of CPC to set aside the ex- parte decree dated 04.06.2014 was filed by the Judgement Debtor before the very same Court which has passed the ex-parte order dated 23.04.2018 transmitting the decree for execution to the District Court, Saket, Delhi; (b) The judgment-debtor owns properties worth several crores of rupees in Tamil Nadu which the Decree Holder is well aware of; (C) the 'ex-parte decree' on the basis of an 'ex-parte order' transmitting the decree to Saket Courts, Delhi for execution without putting the Judgement Debtor to notice of the same, may not be executed by this Court. To buttress his submission of the mandatory nature of Order XXI Rule 5 & 6, Mr. Chandrachud has relied upon a judgment of the Patna High Court in Kapildeo v. Narain & Anr. v. Sheo Prasad Singh, AIR 1960 Pat 209, wherein it is held that when an application for transfer of decree to another court is made, the order directing the preparation of certificate is not the final order as the application before the transferor court is not finally disposed of unless the certificate is prepared and signed, which in turn gives the starting point of limitation under Article 182 Signature Not Verified Clause 5 of the Limitation Act, 1908. Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 17 of 30 Signing Date:03.06.2021 15:35:30
34. It is also submitted by Mr. Chandrachud that the respondent Company/judgment-debtor had in fact diligently taken steps for setting-aside the ex-parte judgement and decree passed on June 4, 2014 and had on July 03, 2014 itself filed an application under Order IX Rule 13 CPC to set aside the said ex- parte order. He stated that petitioners/decree-holders were well aware of this fact and that the CSR number evidencing such filing in the concerned court is 2260/1, 2 & 3 dated July 03, 2014 was duly informed to the petitioners/decree-holders, in its reply to the statutory notices issued by them under Section 434 of Companies Act, and Section 9 of IBC, 2016. The respondent/judgment-debtor had also mentioned before the before the Trial Court at Tiripur, Tamil Nadu to take up the application for setting aside the ex-parte order and had filed a Memo to that effect on June 11, 2018 after serving a copy to the Advocates for the decree-holders, however the decree-holders did not deem it fit to put the respondent/ Judgement Debtor to notice on filing the application before the Trial Court at Tirupur for transmitting the decree for execution to Delhi. Therefore, according to him the present petition, is liable to be kept in abeyance on this account alone.
35. Mr. Chandrachud also reiterated the stand as stated in the affidavit, about the bifurcation of Courts at Tirupur as well as the file gone missing from the new transferee Court and that it was under these circumstances that the respondent/judgment- debtor moved the second memo on March 11, 2020 before the trail court at Tirupur seeking the case to be brought up, with a Signature Not Verified request to reconstruct the file as the papers could not be traced. Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 18 of 30 Signing Date:03.06.2021 15:35:30
36. Alternate to seeking to allow the application E.A 210/2021 and to dismiss the execution petition, Mr. Chandrachud sought the petition to be kept in abeyance.
37. On the pleas taken by Mr. Chandrachud that issuance of a certificate in terms of Order XXI Rule 6 (b) is mandatory in nature and that compliance of Order XXI Rule 5 cannot be circumvented, Mr. Radhakrishnan opposed by relying upon the following judgments:
1. Mohanlal Goenka v. Benoy Krishna Mukherjee & Ors., AIR 1953 SC 65;
2. Gauri Shankar v. Firm Dulichand Laxmi Narayan, AIR 1959 MP 188;
3. Thomas Jacob v. Thoma Varkey, AIR (39) 1952 (Travancore- Cochin) 72.
38. Mr. Radhakrishnan by referring to Banaras Bank Limited (In Liquidation) v. Jyoti Bhushan Gupta & Ors., AIR 1951 All 362, vehemently objected to the plea of Mr. Chandrachud that the "ex-parte order" transmitting the decree to Saket Courts, Delhi for execution was without putting the Judgement Debtor to notice of the same.
39. Having heard the learned counsel for the parties and perused the record, at the outset, I intend to deal with the submission made by Mr. Chandrachud on the maintainability of the execution petition in this Court for want of compliance of Order XXI Rule 5 and Rule 6 (2) of the CPC. It is a conceded case of the parties that this execution petition has been filed seeking execution of judgment / decree dated June 04, 2014 Signature Not Verified passed by the Court of IInd Additional District & Sessions Judge Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 19 of 30 Signing Date:03.06.2021 15:35:30 at Tirupur, Tamil Nadu in OS No. 131/2011.
40. It was contended by Mr. Radhakrishnan, learned Senior Counsel that the decree- holders had initially filed an execution petition being Ex.P.2197/2018 before the said Court. An application being EA No. 28/2018 under Section 40 read with Order XXI Rule 5 CPC was also filed seeking transfer/transmit of the decree to a court of appropriate jurisdiction in Delhi. Mr. Radhakrishnan has placed before the Court, during his submissions, a certified copy of the said application.
41. The prayer of the decree holders in the said application (E.A. No.28/2018) as noted from the certified copy is reproduced as under: -
"The Petitioner most humbly prays that this Hon'ble Court may be pleased to order transfer / transmit under Section 40 of the Code of Civil Procedure, of the Decree dated 04-06-2014 passed by the Hon'ble IInd Additional District Judge, Tirupur, in O.S.No.131 of 2011, to the Court of appropriate jurisdiction at New Delhi, through the City Civil Court, New Delhi where the Respondent has its registered office, for being executed in accordance with law."
42. It was the submission of Mr. Radhakrishnan that the judgment-debtor though, has a factory in Chennai and has several other lands / properties in the State of Tamilnadu, which are valued much above the amount due under the judgment / decree but all the assets are attached and sold and its bank accounts already frozen. It may be stated here that the order passed by the executing Court in Tirupur has already been reproduced in paragraph 11 above. Pursuant thereto, the decree-holders had Signature Not Verified filed an execution petition before the District Court, Saket. It Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 20 of 30 Signing Date:03.06.2021 15:35:30 appears, the same was not entertained for the reason that the judgment / decree was beyond the pecuniary limit of the District Court. It is thereafter, that the present petition has been filed in this Court. This aspect has been confirmed by the learned Counsel in his communication, dated April 15, 2019, to the Registrar, the factum of which has been narrated in paragraph 11 above.
43. The submission of Mr. Chandrachud, in effect was that, in terms of provision of Order XXI Rule 6(b) of CPC, which requires a satisfaction to be recorded by the Court transmitting the decree for execution to another Court and issuance of the certificate to that effect and the mandate of Order XXI Rule 5 that when a decree has to be sent for execution to another Court, the Court which passed the decree shall send the decree directly to such Court for execution having not been adhered to, the present execution petition filed by the decree-holders before this Court, is not maintainable. He supported his submission by contending that the procedure, which has been contemplated under Rules 5 and 6 of Order XXI of CPC are mandatory provisions to be followed. He stated the decree and the certificate, having not been sent by the executing Court in Tirupur, except passing an order stating 'transmit', would not suffice the requirement under Rule 5 and 6 of Order XXI of CPC. In this regard, he relied upon the judgment in the case of Kapil Deo Narain (supra).
44. The aforesaid submission on maintainability was also justified by Mr. Chandrachud in facts by contending that; (i) an Signature Not Verified application under Order IX Rule 13 CPC for setting aside of the Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 21 of 30 Signing Date:03.06.2021 15:35:30 ex-parte judgment is pending consideration before the Court in Tirupur; (ii) the judgment debtor owns properties worth crores of rupees in Tamilnadu, of which the decree-holder is well aware of;
(iii) no notice has been issued to the judgment debtor before passing of the order for transmitting the decree to this Court.
45. The issue, whether the provisions of Rules 5 and 6 of Order XXI CPC are mandatory or directory (being procedural) in nature is no more res-integra, in view of the judgment of the Supreme Court in the case of Mohanlal Goenka (supra), as relied upon by Mr. Radhakrishnan, wherein the Supreme Court, has held as under: -
"3............................ The Civil Procedure Code does not prescribe any particular form for an application for transmission of a decree under Section 39. Under sub- section (2) of that section, the Court can even suo motu send the decree for execution to another court. It is true that Order 21 Rule 6, provides that the Court sending a decree for execution shall send a copy of the decree, certificate setting forth that satisfaction of the decree had not been obtained by execution within the jurisdiction of the court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in clause (b) does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of Order 21 Rule 90, and as such cannot be made a ground for setting aside a sale in execution. ..........."
46. Thus, the Apex Court in Mohanlal Goenka (supra) has Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 22 of 30 Signing Date:03.06.2021 15:35:30 inter-alia held that an omission to send certificate in terms of Order XXI Rule 6 (b) to the transferee court or the omission to send a copy of the decree does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted and that these omissions does not amount to a material irregularity.
47. Mr. Radhakrishnan is also justified in relying upon the judgment in the case of Gauri Shankar (supra), wherein the Madhya Pradesh High Court, taking aid of the Apex Court Judgment in Mohanlal Goenka (supra), has held that non- compliance of Order XXI Rule 5 CPC, being a procedural matter, similar to Rule 6 would amount only to a mere irregularity not affecting the jurisdiction of the Court to proceed with the execution. The relevant paragraphs in this regard are reproduced as under: -
"8. The learned counsel for the appellant, relying on the cases of Debi Dial Sahu v. Moharaj Singh, ILR 22 Cal 764; Sachindra Kumar v. Usha Prova De, AIR 1949 Cal 690 and Durga-prasad v. Harishankar, AIR 1950 Assam 163, urged that the provisions of O. 21, R. 5 of the CPC were mandatory and therefore, the transferee Court in the present case, had no jurisdiction to proceed with the execution. The said cases are clearly distinguishable on the short ground, that the transferee courts in those courts were courts inferior to the District Court.Court of the district in which the decree is to be executed.
9. The learned counsel for the respondent referred me to the cases of Bhagwan Singh v. Barkat Ram, AIR 1943 Lah 129; Radheshyam v. Firm Sawai Modi Basdeo Prasad, AIR 1953 Raj 204 (FB); and Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 and contended that the non-Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 23 of 30 Signing Date:03.06.2021 15:35:30
compliance with the provisions of O. 21, R. 5 of the CPC was a mere irregularity, which did not affect the question of jurisdiction of the transferee court to proceed with the execution.
10. In the case of AIR 1943 Lah 129 (supra), the transferee court was an inferior civil court, while the objection was raised at a very late stage. Therefore, the objection was treated as having been waived. In the case of AIR 1953 Raj 204 (FB) (supra), the transferee court was similarly an inferior civil court and the objection relating to non- compliance with O. 21, R. 5, was not raised except at the appellate stage before the Division Bench.
11. Therefore, it was deemed to have been waived. In the case of AIR 1954 Pat 164 (supra), the transferee court was an inferior civil court. But the objection was raised at an early stage. But all the same, these cases, relying on the Privy Council case of Jang Bahadur v. Bank of Upper India Ltd., AIR 1928 PC 162, held that the non-compliance was a mere irregularity. Although, the question under O. 21, R. 5 of the CPC was not before their Lordships of fhe Supreme Court, in the case of Mohanlal Goenka v. Benoy Krishna, AIR 1953 SC 65, their Lordships clearly laid down that a non-compliance with O. 21, R. 6 of the CPC is a mere irregularity.
12. In substance O. 21, R. 5 and O. 21, R. 6 of the CPC deal with procedural matters, and it would not be unsafe to apply the principles indicated by their Lordships of the Supreme Court to cases under O. 21, R. 5 of the CPC. Therefore if I come to the conclusion that the has been non-compliance with O. 21, R. 5 of the CPC, that would amount to a mere irregularity not affecting the question of jurisdiction to proceed with the execution.
13. The weight of authority, on the strength of the dicta laid down by their Lordships of the Privy Council and the Supreme Court appears to be in favour of treating the non-Signature Not Verified compliance as mere irregularity, which is curable and Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 24 of 30 Signing Date:03.06.2021 15:35:30
which would not vitiate any vested rights created in favour of the decree-holder or the third parties. For these reasons, I am unable to accept the Calcutta and the Assam view, which treats the non-compliance as an illegality rendering the proceedings as nullity."
(Emphasis supplied)
48. I also note in the judgment of Thomas Jacob (supra), the Court inter-alia held that that the jurisdiction of the Court to which a decree is sent for execution arises from the order of transfer and does not depend upon the transfer being accompanied by a certificate of non-satisfaction although such a certificate is directed to be sent by the CPC. The relevant paragraphs in this regard are reproduced as under: -
"13. The jurisdiction of the Court to which a decree is sent for execution arises from the order of transfer and does not depend upon the transfer being accompanied by a certificate of non-satisfaction though such a certificate is directed to be sent by the Code of Civil Procedure. See 'Abbu- baker v. Mohideen', 20 Mad. 10. We have observed already that it was not contended that the Kottayam Court had no jurisdiction. If the Court has jurisdiction to sell the properties, there is no ground made out for setting aside that sale as no circumstance vitiating it is disclosed. The learned Counsel for the appellant contended that this is a case analogous to the case of a sale and purchase by the decree-holder in execution of a decree pending appeal wherein the decree is modified. We consider that this case is not analogous to a case for which specific provision is made in the Civil Procedure Code in Section 144 (Indian Code), i.e., Section 108 (Travancore C.P.C). Even if this case is one to which the said section is directly applicable, we find that no ground is made out for setting aside the sale by way of restitution."
(Emphasis supplied) Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 25 of 30 Signing Date:03.06.2021 15:35:30 It is also not the case of Mr. Chandrachud that this Court does not have jurisdiction as the judgment-debtor does not have any property(ies) in Delhi. Further, it is also not his case that the judgment/decree dated June 04, 2014 has been stayed.
49. Insofar as the judgment relied upon by Mr.Chandrachud in the case of Kapil Deo Narain (supra) is concerned, the said judgment is primarily premised as to whether the execution case filed in the transferee Court is barred by limitation. In that case the facts are, on May 07, 1953, the Court which passed the decree, passed an order on the petition of the decree-holder for transfer of the decree to the transferee Court, for preparation of the transfer certificate. The transfer certificate was prepared and signed on May 08, 1953. The Court held that when an application for transfer of decree to another Court is made, the order directing the preparation of certificate is not the final order, as the application before the transferee Court is not finally disposed of unless the certificate is prepared and signed, which in turn, gives the starting point of limitation under Article 182 Clause (5) of the Limitation Act, 1908. Thus, the execution petition filed on May 08, 1956 was held not beyond the period of limitation by one day as the certificate was prepared only on May 08, 1953.
50. Mr. Chandrachud has relied upon Kapil Deo Narain (supra), to contend that since the limitation for filing an execution petition in the transferee Court gets triggered only on the preparation of the certificate, hence the provision is mandatory. The said submission though looks appealing on a Signature Not Verified first blush, but on a deeper consideration, the preparation of the Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 26 of 30 Signing Date:03.06.2021 15:35:30 certificate may, at the most, would be relevant for the purpose of limitation. In any case, as contended by Mr. Radha Krishnan and as held by the Apex Court in Mohanlal Goenka (supra), the certificate in terms of Order XXI Rule 6(b) does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted and such an omission does not amount to a material irregularity.
51. Even otherwise, the plea of Mr. Chandrachud is not appealing for the simple reason that the purpose and intent of preparing a certificate by the Transferor Court is only to certify the extent of satisfaction of the decree in that Court. It is not the case of the judgment-debtor nor contended by Mr. Chandrachud that any part of the judgment / decree dated June 04, 2014 has been executed / satisfied by the Court in Tirupur.
52. That apart, there is no dispute that the Court in Tirupur has, on the application of the decree-holders had passed an order transmitting the decree, which is in terms of the prayers made in the application. Further, it is not the case of the respondent/ judgement-debtor that the petitioners herein are not the parties which initiated the Suit in the Tirupur Court. Rather, the respondent/judgment-debtor itself filed an application under Order IX Rule 13 of CPC for setting-aside the judgment/decree, which according to Mr. Chandrachud is still pending. It appears, the plea of Mr. Chandrachud is primarily to delay the execution of the judgment / decree, which has been passed in favour of the decree-holders around seven years back. I may note here that for close to seven years after passing of decree, the Signature Not Verified respondent/judgment-debtor has not got the application under Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 27 of 30 Signing Date:03.06.2021 15:35:30 Order IX Rule 13 listed in the concerned Court. This Court in a petition for consideration under Order XXI, will not go beyond the terms the decree. It is not apt to let the respondent/judgment- debtor dictate terms which are irrelevant, as observed in my discussion above, resulting in further delay (Ref: Shree Latha Agencies v. Ramnath and Co. P.Ltd. and Ors., MANU/TN/2413/2011).
53. Even otherwise, on the plea of the Mr. Chandrachud that Order XXI Rules 5 & 6 are mandatory in nature, I am of the view that the decree-holders should not be penalized on grounds of mere irregularity and the maxim 'Actus curies minimum gravabit', which means the act of court cannot prejudice parties, must be given utmost significance (Ref: Mayandi Chettiar v. A.R. Senthilnathan, (1985) 2 Mad.LJ. 61).
54. I also do not find the stand taken by Mr. Chandrachud on the non-issuance of notice to the respondent in the application/petition (E.A. 28/2018) for transfer of decree in the execution proceedings (E.P. 2197/2018) before the Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu, tenable. This I say so, as there is no requirement for issuance of notice for an application preferred under Section 40 read with Order XXI Rule 5 of CPC. Moreover, the respondent/judgment- debtor is not deprived of any of its rights to raise its objection before the transferee court during the execution of the decree. In this regard, Mr. Radhakrishnan is justified in relying upon Banaras Bank Limited (In Liquidation) wherein it is inter alia held by a Division Bench of the Allahabad High Court that the Signature Not Verified transfer of decrees for execution to other Courts is an act of Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 28 of 30 Signing Date:03.06.2021 15:35:30 ministerial nature which does not require issuance of any notice to the judgment-debtor before passing an order of transfer. The relevant paragraph reads as under:
"19. The first objection of the judgment-debtors was that the Registrar of the High Court had no power to pass an order transferring the application for execution to the Court of the District Judge. Under Clause (e) of Sub-rule XI of Rule 9, chap. I of the Rules of this Court the Registrar has the power to "send decrees and other orders to other Courts for execution." Learned counsel for the respondents contends that this rule is ultra vires and the Court had no jurisdiction to delegate its judicial function to a ministerial official. The Rules of the Court were made in 1898 and so far as we are aware this provision has been in existence since then without being ever challenged. Inter alia these rules have been framed under Section 122 of the Code. Transfer of decrees for execution to other Courts is an act of ministerial nature. The Code of Civil Procedure does not require the issue of any notice to the judgment-debtor before passing an order of transfer. The judgment-debtor is not deprived of any of his rights to raise his objection to the execution of the decree. We hold that the Registrar was quite competent to transfer the decree for execution to the District Judge."
55. The plea that petitioner No.3/decree-holder No.3, being an unregistered firm, could not have maintained a suit is also misconceived. In fact, it is the conceded case of Mr. Chandrachud that the respondent/judgment-debtor had filed such an application in the Suit which was dismissed. If that be so the respondent/judgment-debtor is precluded to take such a plea in these proceedings nor can such a plea be gone into in these proceedings.
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 29 of 30 Signing Date:03.06.2021 15:35:3056. In view of my above discussion, the plea of Mr. Chandrachud on the maintainability of the petition in this Court is rejected. Till further orders, the judgment-debtor is restrained from selling, transferring, alienating and/or creating third party rights in the property situated at GA-1/B1 Extension, Mohan Co- operative Industrial Estate, Mathura Road, New Delhi - 110044. Further, the judgment-debtor shall an affidavit in the format of Annexure B-1 as provided in the judgment of M/s. Bhandari Engineers & Builders Pvt. Ltd. v. Maharia Raj Joint Venture & Ors., EX.P. 275/2012, dated August 5, 2020, within 30 days from today. Response to the same be filed by the petitioners/decree-holders within a period of two weeks thereafter.
57. In view of my discussion above, the application filed by the respondent/judgment-debtor being Ex. Appl. (OS) 210/2021 is dismissed.
58. The present petition along with Ex. Appl. (OS) 195/2019 be listed before the roster bench on July 23, 2021, subject to the orders of the Hon'ble the Chief Justice.
V. KAMESWAR RAO, J JUNE 03, 2021/aky Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Ex. P. 34/2019 Page 30 of 30 Signing Date:03.06.2021 15:35:30