Delhi District Court
An Application Moved By Jd No. 2 Sh. ... vs Unknown on 2 August, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
Ex. No. 20/10
New Ex. No. 61251/16
Tata Motors Finance Ltd.
Vs.
Rishi Pal & Arn.
ORDER
02.08.2017
1. An application moved by JD no. 2 Sh. Dilbag Singh under Section 60(1) CCC CPC read with Section 151 CPC along with Section 5 of Limitation Act.
2. Brief facts are that an "Arbitration Award" was passed by Sh. Nitin Charan, Sole Arbitrator on 20.11.2009. It was an exparte award. It is submitted that the DH since the date one, in connivance with the JD no. 1, not approached the Ld. Arbitrator with correct memo of parties. The respondent no. 1 Sh. Mahender Singh, Sole Proprietor of M/s Ram Krishna Trans Logistics has not been disclosed. DH has not taken any steps for recovery of decretal amount against JD no. 1 which Ex. No. 20/10 Page No. 1/13 is evident from the report of bailiff dated 26.08.2010 and 06.04.2010.
3. It is stated that on 09.05.2015, DH has filed one application under Order 21 Rule 54 CPC for attachment of immovable property of the JD no. 2 Dilbagh Singh. Consequently, warrants of attachment of immovable property i.e. Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi.
4. Another application of the DH under Order 21 Rule 66 CPC was also allowed by this court. This court also directed to take steps for auction of the attached property by SDM, Punjabi Bagh, Delhi. JD no. 2 approached the Hon'ble High Court against the order dated 09.03.2017 and as per direction of Hon'ble High Court, present application has been filed.
5. Applicant/JD No. 2 has taken amongst inter alia grounds.
6. It is stated that the property in question i.e. Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi is not a plot but it is a single residential house of the JD no. 2/applicant, wherein the applicant alongwith his old age mother, wife and children are residing and in view of the Ex. No. 20/10 Page No. 2/13 provisions of Section 60(1) CCC CPC is a residential house. It is further stated that the property in question is the main residential building and Section 60(1) CCC CPC whereby main residential house belonging to JD/applicant is exempted for attachment and sale in execution of decree. It is further stated that the property in question has consists two room, kitchen, stairs and toilets at ground floor and one room at on the roof. The applicant/JD is used the same for residence. Apart from that the JD no. 2/applicant has nothing in his name. It is stated that the said property in question cannot be attached/sold being single dwelling house. It is further stated that according to Section 60(1)(C) CPC are dwelling unit cannot be attached, therefore this property is exempted prima facie from the attachment. It is further stated that there is catena of judgment by the Hon'ble High Court and Hon'ble Supreme Court of India in which it has been categorically mentioned that as per the provisions of 60(1) (C) CPC the single dwelling house cannot be attached/sale.
7. It is further stated that the DH submitting the false pleas that property in question is a plot obtained the order for attachment of the aforesaid property, whereas it is submitted herein that the property in question is a plot but it is a single residential house of the JD no. 2 and which cannot be attached in any manner as per the provisions of Section 60(1) Ex. No. 20/10 Page No. 3/13 CCC CPC. It is further stated that apart from the abovesaid grounds, it is also apparent and visible that since the beginning, the DH in collusion with the JD no. 1 not filing proper memo of parties even not executing the warrants of attachment, never moved any application either before the court of law or before arbitration proceedings for sale of the alleged vehicle bearing no. HR-63A-6746.
8. It is further stated that even the court bailiff in its report dated 26.08.2010 mentioned that alleged vehicle is lying in the office/premises of JD no. 1 but no steps ever taken to recover the same. It is further stated that applicant/JD no. 2 has not preferred any appeal either before the Hon'ble High Court/any other court of law and prefers the present application in the interest of equity of justice.
9. Reply filed by DH to the application moved by JD no. 2 Sh. Dilbag Singh under Section 60(1) CCC CPC read with Section 151 CPC on 27.07.2017, wherein DH stated that the JD no. 2 has presented distorted and incorrect version of facts before this court, DH stated that the contents of the application filed by JD no. 2 is wrong, false and fabricated and the same are denied. The application is not maintainable and is liable to be dismissed on the basis of under stated submissions/objections, which are without prejudice to one another.
Ex. No. 20/10 Page No. 4/1310. It is stated that the application filed by the JD no. 2 with the sole aim and interim to make undue pressure on the DH and there is no negligence or ill intention or deliberate and willful mistake or default on the part of the DH. It is further stated that the application is not maintainable either on facts or in the eyes of law and are liable to be dismissed as the JD no. 2 has not come before this court with clean hands and has presented a distorted and incorrect version of the facts before this Court, thereby attempted to misguide and mislead this Court. It is further stated that the present application is not maintainable and is liable to be dismissed as application is nothing but an attempt by the JD no. 2 to abuse the process of this Court.
11. It is further stated that one Jagveer Singh S/o Sh. Azad Singh alleged to be claimed the owner of the property bearing Khatoni No. 429/5, Khasra No. 787, area measuring 200 sq. yards in Village Tikri Kalan, Delhi-110041, who filed an application under Section 151 CPC in connivance & collusion with JD no. 2 for seeking direction to remove the affixation put by this Court on the aforesaid property alleging that the said Jagveer Singh S/o Sh. Azad Singh has purchased the aforesaid property and had let out the same on rent to Smt. Sunita W/o Sh. Dilbagh Singh.
Ex. No. 20/10 Page No. 5/1312. It is stated that the said Jagveer Singh S/o Sjh. Azad Siongh also placed on record GPA, Agreement to Sell, Affidavit, Deed of Will, Receipt Possession Letter, all dated 09.07.2009 alleged to have been executed by JD no. 2 in his favour in respect of abovesaid immovable property. This alleged factum of owner is also mentioned in the reply filed on behalf of the said Jagvir Singh S/o Sh. Azad Singh & Affidavit supporting thereof to the application under Order 21 Rule 66 CPC filed on behalf of the DH, however the said application was dismissed by this Court vide order dated 29.07.2016 and directed the Tehsildar (Punjabi Bagh) to take steps for auction of the attached property within one month and deposit the sale proceeds in the court. Further, JD no. 2 is claiming to be the owner of the aforesaid attached property and it is evident that the JD no. 2 in connivance with the said Jagveer Singh S/o Sh. Azad Singh, has committed fraud not only with DH but upon this Court. JD no. 2 and said Jagveer SinghS/o Sh. Azad Singh are liable to be prosecuted under Section 340 Cr.P.C. and DH has also filed an application under Section 340 Cr.P.C. against said Jagveer Singh and said Dilbagh Singh.
13. It is further stated that thereafter this Court directed the JD no. 2 to file affidavit under Order 21 Rule 41 CPC and the JD no. 2 filed the said affidavit on 18.11.2016. In para-7(a) of Ex. No. 20/10 Page No. 6/13 the said affidavit, applicant himself mentioned that he has no house, however in clause(b) of the same para 7 he is admitting that he is paying annual rent of Rs.24,000/-, and in para-8(a), he has again admitted "House Property": NA, so application of applicant Dilbagh is liable to be dismissed on this ground only.
14. The DH on merits denied all the contents of the application. It is stated that the award under execution has been passed by Ld. Sole Arbitrator as per law. The Ld. Sole Arbitrator held that after considering loan application claimant granted to the respondent no. 1 a loan of Rs.11,94,000/- for purchase of vehicle Make Model/Registration No. LPT2518/HR63A5947, Engine No. 70H62593716 Chasis No. 448026HSZ127557 on certain terms and conditions and a written agreement dated 27.10.2007 being agreement/account No. 5000180485. The respondent no. 1 is the borrower and the respondent no. 2 is the guarantor. Respondent no. 1 agreed to repay the loan in 47 equal monthly installments of Rs.29,450/- each as per the agreed schedule of payment. In the event of default, the respondents are jointly and severally liable. In addition to it, the guarantor was liable to pay outstanding decreetal amount because of default committed in repayment of outstanding dues.
Ex. No. 20/10 Page No. 7/1315. It is stated that loan was sanctioned to M/s Ram Krishna Trans Logistics C/o Sh. Mahender Singh, VPO Tikri Kalan, Delhi-110041. The JD no. 1 fled away from the place of its business and the JD no. 2 being the guarantor and real brother of proprietor of JD no. 1 is very well aware of whereabouts of his brother and avoiding payment of decreetal amount for last seven years. It is further stated that now immovable properties of the JD no. 2 has been attached and put for sale by the order of this court and therefore, present application has been filed with bald allegations against DH. JD no. 2 was directed to file affidavit under Order 21 Rule 41 CCP and the same was filed on 18.11.2016 wherein he stated that he is paying annual rent of Rs.24,000/- and he has no house.
16. The DH denied all the grounds taken in the application and reiterated the facts stated in the earlier submissions in reply in detail. It is stated that application is liable to be dismissed.
17. In the accompanying application under Section 5 of the Limitation Act, the applicant/JD no. 2 has stated that after the order dated 09.03.2017, the application/JD no. 2 contacted to the counsel, who filed the present application and inspected the case file on 18.03.2017. After inspecting the case file, the Ex. No. 20/10 Page No. 8/13 applicant was advised to move the present application because true and material facts have not been present before the Hon'ble court that the property in question is not a plot but it is a single residential house for the accommodation of the applicant/JD no. 2 and his family members. It is further stated that though the present application under Section 60(1) CCC CPC is within limitation from the order dated 09.03.2017, whereas it is highly belated to submit this ground at this stage after passing of order dated 29.10.2015 and 29.07.2016, but the delay was not caused intentionally because the applicant/JD no. 2 could not get proper legal advice from earlier counsel. It is stated that delay may be condoned in view of circumstances explained by the applicant.
18. I have heard Ld. Counsel for JD no. 2 Sh. A.K. Jha, Ld. Counsel for DH Sh. Pradeep Kalhan and perused the record.
19. The present execution petition filed by DH M/s. Tata Motors Finance Ltd. against JD no. 1 Ramakrishna Tracs Logistics C/o Sh. Mahender Singh and JD no. 2 Dilbagh Singh S/o Sh. Mahender Singh on 05.03.2010. Warrants of attachment were issued against JDs since 16.04.2010. Thereafter, as per report of Bailiff Sh. P.C. Sharma, statement of Bailiff was recorded. Accordingly Bailiff stated that office of Ex. No. 20/10 Page No. 9/13 the JD was found locked and warrants could not be executed. As per report dated 18.02.2012, JD no. 2 Dilbagh Singh appeared personally and also on behalf of JD no. 1 and expressed willingness to compromise the matter with the DH. My Ld. Predecessor granted sufficient time till 29.05.2012 but the matter could not be compromised. Again as per order dated 20.12.2012, the matter was referred to Mediation Centre for settlement. However, parties failed to settle the matter and returned by the Mediation Centre. On 08.01.2013 again warrants of attachment against JDs were directed to be issued. Warrants of attachment could not be executed, however JD no. 2 appeared on 04.08.2014.
20. JD no. 2 engaged one counsel Sh. Krishan Kumar when application filed by DH for seeking police aid for execution of warrants against JDs then, application under Order 21 Rule 54 CPC filed on behalf of DH for attachment of immovable properties of JD no. 2. The said application was dismissed vide detailed order dated 29.10.2015 and directions were passed for attachment of immovable properties of JD no. 2 i.e. Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi. Meanwhile one Jagveer Singh has appeared and filed an application. On the same date, DH filed an application under Order 21 Rule 66 CPC.
Ex. No. 20/10 Page No. 10/1321. Applicant Sh. Jagveer Singh alleged that he has purchased the property No. 61A, Panna Kalan, Tikri Kalan, Delhi on 07.07.2009 and filed photocopy of GPA, Agreement to Sell and Will and let out the same to one Sunita. Said application under Section 151 CPC was dismissed vide detailed order dated 29.07.2016. This is an attempt by JD no. 2 to mislead the court.
22. On 19.10.2016, JD no. 2 was directed to file affidavit under Order 21 Rule 41(2) of CPC as per Form-16A. As per documents, Dilbagh Singh i.e. JD no. 2 executed GPA in favour of Jagveer Singh with regard to 200 sq. yards, out of 400 sq. yards, built up area of Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi with the agreement to sell, affidavit, receipt, possession letter, deed of sale. These documents clearly established on record that JD no. 2 is having total 400 sq. yards built up area, out of which 200 sq. yards has been sold by Jagveer Singh who in turn inducted one Sunita, who is wife of JD no. 1 as a tenant. It clearly established that in the year 2016, JD no. 2 misled the court from execution of decree and created documents just to avoid the court orders. The documents were executed to show that he is not the owner and in possession of any immovable property and introduced one Jagveer Singh but possession remained with him through his wife who is shown Ex. No. 20/10 Page No. 11/13 as tenant. It is pertinent to mention here that on 19.11.2016, as per directions of the court, Dilbagh Singh filed detailed affidavit under Order 21 Rule 41(2) of CPC. In this affidavit, he has stated on oath that Sunita is his married wife and he is working as driver for one Sarabjit Singh and earning Rs.12,000/- per month and owns a house and given the details of the banks. He has also disclosed that one DRT case is pending against him filed by ICICI Bank for Rs.50,000/- and from Tata Motors for Rs.2,80,000/- is pending. Further, he has not disclosed that he is the owner of property bearing Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi. It clearly established JD has misled the court and pleaded wrong facts. Now, as per own conduct and deeds and the documents on record, he is the owner of total 400 sq. yards, built up area of Khatoni No. 429/5, Min in Khasra No. 787, Min situated in Village Tikri Kalan, Delhi and 200 sq. yards is shown to be sold which is farce and sham transaction.
23. It is pertinent to mention here that now after seven years, I find no ground to condone the delay for filing the present application. It is deliberate attempt to delay execution of decree. It is very vital to note that by present execution proceedings are arising out of award under Arbitration & Conciliation Act. The objections lies under Ex. No. 20/10 Page No. 12/13 Arbitration & Conciliation Act, 1996. So far no such steps taken by him, therefore in my considered opinion, this is an attempt to delay and avoid to satisfy the decree. JD no. 2 has failed to establish that he is the owner of only one residential unit. The other residential unit and remaining 200 also belongs to him, therefore it can be subject to attached and sale.
24. On the basis of observations and discussions, application of JD No.2 under Section 60(1) CCC CPC read with Section 151 CPC along with Section 5 of Limitation Act stands dismissed with cost of Rs.10,000/-.
Announced in the open court today the 2nd August, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 02.08.2017 Ex. No. 20/10 Page No. 13/13