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Delhi Chemical And ... vs Himgiri Realtors Pvt. Ltd. & Anr on 27 April, 2021

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw, Amit Bansal

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     EFA(OS) (COMM) 4/2021
      DELHI CHEMICAL AND PHARMACEUTICALWORKS PVT.
      LTD. & ANR.                      ..... Appellants
                   Through: None.

                         versus

      HIMGIRI REALTORS PVT. LTD. & ANR.                  ..... Respondents
                         Through:       Mr.P.Nagesh, Sr.Adv. with
                                        Mr.Shivam Wadhwa, Adv. for R-2.

      CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
      HON'BLE MR. JUSTICE AMIT BANSAL
              ORDER

%             27.04.2021
[VIA VIDEO CONFERENCING]

CM No.11907/2021 (for exemption)

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of.

EFA(OS) (COMM) 4/2021, CM 11905/2021 (for ad interim ex parte stay) & CM 11906/2021 (for condonation of delay of 346 days in filing the appeal)

3. This execution first appeal, impugns the order dated 23rd December, 2019 of the Commercial Division of this Court, directing the two appellants and the respondent no. 2 Judgment Debtor, to file affidavits in the format attached as Annexures A & B to the judgment dated 5th December, 2019 in Execution Petition 275/2012 titled Bhandari Engineers & Builders Pvt.

Ltd. Vs. Maharia Raj Joint Venture, along with documents mentioned therein as well as the order dated 13th March, 2020, of dismissal of the application of the appellants for review of the order dated 23rd December, 2019.

4. The appeal is accompanied with application for condonation of delay of 337/346 days in filing thereof.

5. The Court Master states that a message has been received from Mr.Sanjay Agnihotri, Advocate for the appellant, that he is suffering from Covid-19 and seeking adjournment.

6. None appears for the respondent no. 1 Decree Holder.

7. The senior counsel for the respondent no. 2 Judgment Debtor appears and on enquiry informs that no further progress has been made in the execution as yet.

8. Without going into the aspect of maintainability of this appeal under the Commercial Courts Act, 2015, we are of the view that the matter requires consideration.

9. The affidavits have been directed to be filed, in exercise of powers under Order XXI Rule 41 of Civil Procedure Code, 1908. One of us (Rajiv Sahai Endlaw, J.), sitting singly, in M.L. Gupta Vs. Aerens Gold Souk International Ltd. 2018 SCC OnLine DEL 7621, referring to a large number of earlier judgments has held that it is incumbent on a Decree Holder to, in an application for execution, set out the mode in which assistance of the Court in executing a decree for payment of money is required or to plead that the Decree Holder has no means to know the assets of the Judgment Debtors and that in every case, mechanically, the Judgment Debtor cannot be directed to make the disclosure permitted in Order XXI EFA(OS) (COMM) 4/2021 Page 2 of 4 Rule 41 of the CPC. It was observed, that though the language of order XXI Rule 41 CPC is wide enough but cannot be interpreted as widely as to hold that in every case, the Decree Holder, instead of doing its spade work i.e, setting out the mode in which assistance of the Court is required, simply ask for notice to be issued to the Judgment Debtor to disclose his assets.

10. We may notice that Rule 41 of Order XXI, by its very language also, does not mandate every Judgment Debtor to make disclosures as provided therein and in Rule 41(1) only gives an option to the Decree Holder to apply thereunder and empowers the Court to so direct the Judgment Debtor to make disclosure, where the conditions prescribed in Rule 41(2) are satisfied. Rule 41(3) makes disobedience of a direction under Rule 41(2) punishable by detention in civil prison; therefrom it seems that the direction under Rule 41(2) of Order XXI is not to be issued mechanically, in each and every case.

11. We have enquired from the senior counsel for the respondent no. 2, whether the aforesaid aspect has been considered in Bhandari Engineers & Builders Pvt. Ltd. (supra).

12. The senior counsel for the respondent no. 2 replies in the negative, though clarifies that he is supporting the appellant.

13. It is also the contention of the appellants in the memorandum of appeal, that the particulars required to be disclosed in the affidavits directed to be filed, invade the right of privacy of the appellants-Judgment Debtors. It is their contention that the Arbitral Award of which enforcement is being sought and with respect to which application under Section 34 of the Arbitration and Conciliation Act, 1996 is still pending, itself provides for retention of security of immovable property by the respondent no. 1 Decree Holder, for satisfaction of the monetary award in favour of the respondent EFA(OS) (COMM) 4/2021 Page 3 of 4 no. 1 Decree Holder.

14. It prima facie appears that if the respondent no. 1 Decree Holder is entitled to execute the decree from an asset already in possession of the respondent no. 1 Decree Holder, the stage/occasion for making an order under Order XXI Rule 41 of the CPC in accordance with the aforesaid judgment, would not arise.

15. Issue notice.

16. Notice is accepted by the counsel for respondent no. 2.

17. The Court Master is directed to inform the counsel for the respondent no. 1 Decree Holder, who had appeared before the Single Judge, of the next date of hearing.

18. The counsels are at liberty to file before this Court, any part of the record of the Execution Court, not filed by the appellants and intended to be relied upon during the hearing.

19. List on 24th May, 2021.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J APRIL 27, 2021 SU EFA(OS) (COMM) 4/2021 Page 4 of 4