Himachal Pradesh High Court
EX.P/13/2016 on 6 September, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
Ex. Petition No. 13 of 2016.
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06.09.2019 Present: Mr. Vinay Kuthiala, Sr. Advocate, with Mr. Devi Singh, Advocate, for the DH.
Mr. Neeraj Gupta, Sr. Advocate, with Ms. Rinki Kashmiri, Advocate, for the JDs. OMP No. 658 of 2018:
1(a) The decree holder has filed instant On application under Order 21 rule 64 & 66 read with Section 151 of CPC for drawing the schedule for sale.
13.03.2019 before drawing the schedule for sale, learned counsel for JDs, sought permission to make a motion in respect of the proclamation of sale specifying the precise decretal amount realizable from the sale through public auction of the attached assets of the JDs. The prayer was accepted and the following order came to be passed on 13.03.2019:-
"The learned counsel for the JDs, submits that before this Court proceeds to draw the schedule for sale, he may be permitted to make a motion before this Court, for the proclamation of sale, specifying the precise decretal amount realizable from the sale, through public auction, of the attached assets of the judgment debtor. Prayer accepted. The afore motion be made within four weeks, and the matter be listed on 17.04.2019."
1(b) On 17.04.2019, request for adjournment was made on behalf of the JDs, on ground of ::: Downloaded on - 29/09/2019 03:58:55 :::HCHP requirement of fresh Power of Attorney on account of senior designation of the original counsel. The following .
order came to be passed on 17.04.2019:-
"The learned vice counsel appearing for the JDs, submits that, given Mr. Neeraj Gupta, now being designated as Senior Advocate , thereupon, a fresh power of attorney is required to be executed by the JDs, hence she prays for an adjournment. Prayer accepted. The requisite power of attorney be filed within r one week. List thereafter."
1(c) On 02.05.2019, again date was sought for complying with the previous orders, for which, two weeks time was granted.
1(d) On 12.07.2019, final opportunity was granted to the JDs for complying with the order dated 13.03.2019 with clear rider that no further opportunity shall be granted.
1(e) On 09.08.2019, again date was sought on behalf of JDs, stating that due to bereavement in the family of JDs , the order dated 13.03.2019, could not be complied with. In these circumstances, even after the grant of final opportunity having been granted on 12.07.2019, an opportunity of three weeks was again granted to the JDs to file calculations. Following order was passed on 09.08.2019:-
"Learned Senior counsel for the JDs., on instructions, submits that on account of bereavement in the family of JDs, previous order could not be complied with, hence, prays for one more opportunity. Even though, in the previous order, last opportunity was granted to ::: Downloaded on - 29/09/2019 03:58:55 :::HCHP the JDs. to comply with the order, however, as a matter of indulgence, one more opportunity of three weeks is granted to the JDs to file .
calculations.
List on 06.09.2019. It is made clear that no further opportunity shall be granted to comply with the aforesaid order."
2. Today, when the matter was taken up, learned counsel for the JDs, submited that the JDs have not responded and, therefore, order dated 13.03.2019 could not be complied with and for the same reason, fresh Power of Attorney after the designation of Mr. Neeraj Gupta as Senior Advocate could not be filed. It is seen from the record that the Power of Attorney had already been executed by the JDs in favour of not only Mr. Neeraj Gupta, Advocate (now Sr. Counsel) but also in favour of Mr. Janesh Gupta, Advocate. 3(a) Learned Arbitrator had passed the award for sum of Rs. 12,00, 29,882/- along with interest @ 18% per anuum w.e.f. 25.02.2015 up to the date of payment. 3(b) Vide judgment dated 01.08.2018, passed in OMP (COMM.) No. 220 of 2016, the award was modified by the Delhi High Court to the extent that decree holder was held entitled to charge simple interest at contractual rate i.e., the rate mentioned in MOU till 23.03.2006, on the principal sum remaining outstanding from the judgment debtors. With effect from 24.03.2006, the decree holder was entitled to charge interest @ 12% per annum. The decree holder ::: Downloaded on - 29/09/2019 03:58:55 :::HCHP has supplied calculations carried out by its Chartered Accountant, as per which, a sum of Rs. 15,54,44,764/-
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as on 10.10.2018. is recoverable from the judgment debtors under the terms of the modified award. 3(c) The property situated at Up-Mohal Simsa Tehsil Manali, District Kullu, H.P. denoted by Khewat/Khatauni No. 199 min/265, Khasra Nos. 3552/2179, 3548/2177, 3550/2178, 3549/2177 (Old) corresponding to Khasra Nos. 1260, 1261, 1263,1264, 1265 and 1266 (New) Kita-6 along with all the land, buildings, structure appurtenances, fitting, fixtures, movable assets existing thereupon, have been mortgaged by the judgment debtors and offered as collateral security in lieu of amount advanced to them in form of equitable mortgage in favour of the decree holder. The value of the property as assessed by it's Registered Valuer in June, 2012, was Rs. 7,70,40,000/-. Neither any valuation of the property nor calculations have been placed on record by the judgment debtors. No response has been filed to OMP No. 658/2018 by the judgment debtors. The above mortgaged property is already attached in accordance with order dated 12.07.2018. passed in this execution petition. Vide order dated 29.08.2018, it is noticed that assets of the Judgment Debtors already stand attached. 3(d) In view of the above factual position, let a proclamation of sale strictly in terms of order 21 Rule 66 ::: Downloaded on - 29/09/2019 03:58:55 :::HCHP of the Code of Civil Procedure, be drawn up by the Additional Registrar (Judicial). The decree holder shall .
appear before him on 25.09.2019. However, it is made clear that in case the judgment debtors still offer the aforesaid decretal amount, along with up-to-date interest, prior to the conducting of the sale of attached property, the warrants of sale shall not be given effect to.
r to
List on 26.12.2019.
(Jyotsna Rewal Dua)
Judge
6th September, 2019
(reena)
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