Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Vijay Kumar Aggarwal vs Rudra Buildwell Residency Private ... on 14 January, 2019

Author: Rajiv Shakdher

Bench: Rajiv Shakdher

$~6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      OMP (ENF.) (COMM.) 254/2018
       VIJAY KUMAR AGGARWAL                   ..... Decree Holder
                    Through Mr. Tarun Singla with Mr. Deepanshu
                            Choithani, Mr. Shailesh Pandey, Mr.
                            Parv Garg, Mr. Prarit Sharma and Mr.
                            Naman Joshi, Advs.
                    versus

       RUDRA BUILDWELL RESIDENCY PRIVATE
       LIMITED ORS.                         ..... Judgment Debtor
                    Through Mr. Sudhanshu Batra, Sr. Adv. with
                            Mr. Arun Vohra, Mr. Aditya Misra,
                            Mr. Gorangg and Mr. Vineet Gupta,
                            Advs. for judgment debtors.
                            Mr. Atul Sharma with Mr. Kamal
                            Gupta and Mr. Nitesh Jain, Advs. for
                            ECL.

      CORAM:
      HON'BLE MR. JUSTICE RAJIV SHAKDHER
                        ORDER

% 14.01.2019 I.A. No.17674/2018 (for exemption)

1. Allowed, subject to just exceptions.

2. There is a typographical error in paragraph 10 of the order dated 21.12.2018. In the third line of paragraph 10, the word „money‟ should precede the word „shall‟. Paragraph 10 of the order dated 21.12.2018 is modified to that extent. The relevant part of paragraph 10 of the order dated 21.12.2018 will now read as under :-

"10. Accordingly, the interim order dated 2.11.2018 is varied to the extent in the four HDFC accounts mentioned in paragraph 4 of I.A. 15264/2018 money shall be received and/or deposited and payment of EMIs to the extent of Rs.2.15 crores to the applicant herein, i.e. ECL, will also be allowed."

2.1. Besides this, I am informed by Mr. Atul Sharma that ECL has complied with the directions contained in paragraph 14 of the very same order. I am also informed that the statement of accounts concerning the escrow accounts maintained with HDFC Bank Limited, the details of which are referred to in paragraph 4 of I.A. No.15264/2018, for the previous one year ending on 07.01.2019, have been filed.

2.2 Mr. Singla, who, appears for the decree holder, says that the decree holder has been furnished with a copy of the same.

3. Accordingly, counsel for ECL says that this application can be closed. It is ordered accordingly. Needless to say, ECL will be entitled to receive further EMIs i.e. those which fall due after 31.12.2018.

4. This application has been filed by the judgment debtors seeking variation of the order dated 2.11.2018. Via the order dated 2.11.2018, I had restrained the judgment debtors from operating the bank accounts referred to in paragraph 4 of I.A. No.15264/2018.

5. Mr. Batra, learned Senior Counsel, who, appears for the judgment debtors, informs me that in the suits filed on the Original Side of this Court, OMP (ENF.) (COMM.) 254/2018 Page 2 of 7 certain interim arrangement has been arrived at on 9.1.2019. 5.1 Learned Senior Counsel has drawn my attention to the order dated 9.1.2019, which was passed in CS(Comm)nos: 1296/2018; 1297/2018; 1273/2018 and 1274/2018 (hereafter collectively referred to as „Suits‟). 5.2. Mr. Singla does not dispute this position.

6. The arrangement which has been arrived at with the decree holder is that it will be paid by the plaintiffs in the aforementioned suits, which includes the judgment debtors (see CS(Comm.) No.1274/2018), a sum of Rs.5 crores in the manner set forth in the order dated 9.1.2019. In particular, my attention has been drawn by Mr. Batra to paragraph 2(D) of the order dated 9.1.2019 passed in the said suits, which requires that upon payment of the first instalment, amounting to Rs.1 crore, out of the total sum of Rs.5 crores, the decree holder shall agree to the restraint on the operation of accounts being lifted and shall also permit the plaintiffs in the suits (including the judgment debtors) to deal with their assets during the pendency of the applications filed in the aforementioned suits.

7. Mr. Batra has, therefore, brought to the Court a sum of Rs.1 crore in the form of two pay orders, which he says that he would like to handover to the counsel for the decree holder.

8. Mr. Singla, on the other hand, says that while he has no difficulty in the Court permitting operation of the bank accounts, he would like the Court to make it clear that the order passed today, would not impact the other proceedings, in particular, Contempt Case (C) No.902/2018 and 11/2019 and Transfer Petition (Criminal) No.62/2018.

9. Mr. Singla says that, as a matter of fact, in the Transfer Petition OMP (ENF.) (COMM.) 254/2018 Page 3 of 7 (Criminal) No.62/2018, the judgment debtors have been directed to pay a sum of Rs.75 lakhs to the decree holder. Furthermore, I am informed by Mr. Singla that out of Rs.75 lakhs, Rs.25 lakhs has already been paid, while, the balance amount i.e. Rs.50 lakhs, is still outstanding and payable. 9.1. Mr. Batra, though, contends to the contrary. It is his submission that the agreed interim arrangement would cover even the balance Rs.50 lakhs. Mr. Batra says that he would like to advance arguments on this aspect before the concerned Court.

10. The other submission which Mr. Singla has made is that in so far as the agreed interim arrangement recorded in the order dated 9.1.2019 is concerned, Judgment Debtor no.3 (i.e. Mr. Mukesh Khurana) is required to file an affidavit of undertaking setting out therein that he would abide by the agreed terms as recorded therein.

10.1 It is Mr. Singla‟s submission that such an affidavit has not been filed as yet.

10.2. Mr. Batra says that compliance will be made, as required, on or before 16.1.2019.

11. It is further contended by Mr. Singla that paragraph 7 of the order dated 2.11.2018, required the judgment debtors to disclose their assets in Form 16A, Appendix E of the CPC. Learned counsel says that this direction has not been complied with. Mr. Batra, once again, says that compliance will be made within three weeks from today.

12. Mr. Singla also submits that this Court would have to indicate that if assets are dealt with by the judgment debtors pursuant to the variation order passed by this Court and thereupon, there occurs a breach, then, since the OMP (ENF.) (COMM.) 254/2018 Page 4 of 7 position of parties as obtaining prior to the variation would get revived, the third party who would perhaps acquire interest in the assets in the meanwhile should be made aware of the contents of order dated 9.1.2019. 12.1 Besides this, it is Mr. Singla‟s contention that the interim arrangement, as captured in paragraph 2(D) of the order dated 9.1.2019, should be restricted to unencumbered assets and not those assets which stand already charged to the decree holder.

13. Having heard the learned counsel for the parties, it is quite clear that there is an agreed interim arrangement which has been recorded by a Single Judge of this Court in the aforementioned suits on 9.1.2019. Paragraph 2(D) of this arrangement reads as follows:

"(D) On receipt of the said sum of the first instalment of Rs.1 crore the defendants agree that the restrain on operation of accounts and dealing with the assets of the plaintiff shall cease to exist till pendency of the present applications. In case any procedural formalities in this regard are to be complied with needful shall be done by the parties."

14. As noted above, counsel for the parties are at ad idem on two issues:

first, that upon receipt of Rs.1 crore, the operation of the subject bank accounts which were injuncted by me vide order dated 2.11.2018, should be lifted, and second, the plaintiffs, which include the judgment debtors, should be allowed to deal with their assets.

15. The submission of Mr. Singla that based on Clause (G) of Paragraph 2 of the order dated 9.1.2019 which is to the effect that in case there is a breach, then upon interim orders getting revived the rights of third parties OMP (ENF.) (COMM.) 254/2018 Page 5 of 7 could get impacted and hence they should be made aware of the orders passed by this Court, in my view, this can be complied with by the judgment debtors by furnishing copies of the proceedings. The legal impact of the revival of the interim order(s), if necessary, can be addressed if such a situation arises in future, that is, when there is a breach of agreed interim arrangement as recorded in order dated 9.1.2019.

16. As noted above, Mr. Batra has already indicated that not only an affidavit will be filed by Judgment Debtor no.3 in terms of Paragraph 2(C) of the order dated 9.1.2019, but also disclosure of assets would be made, as directed by this Court via order dated 2.11.2018. Thus, these two aspects do not come in the way of the prayer made for variation of the order dated 2.11.2018 by Mr. Batra.

17. The last aspect, which is, that the consent given for dealing with assets by the decree holder is only vis-a-vis the unencumbered assets is something which would have to be examined in view of Mr. Batra‟s contention that the conciliated agreement which has morphed into an agreed award cannot be looked at by this Court, as the requisite stamp duty has not been affixed.

17.1 This aspect of the matter, in my view, need not come in the way of the variation sought by Mr. Batra. This is more so as while ECL Finance Ltd. (in short "ECL") claims to have the first charge over the entire assets owned by Judgment Debtor no.2 (i.e. M/s Rudra Buildwell Projects Pvt. Ltd.). This is disputed by the decree holder. Mr. Singla submits that the decree holder‟s stand is that the assets over which ECL claims first charge he has a prior charge; something which is refuted both by ECL and Mr. Batra on OMP (ENF.) (COMM.) 254/2018 Page 6 of 7 behalf of the judgment debtors.

18. Accordingly, the order dated 2.11.2018 is further varied to the extent that the restrain put on the judgment debtors qua operation of the bank accounts referred to in Paragraph 4 of I.A. No.15264/2018, shall stand lifted.

19. The application is disposed of in the aforementioned terms.

20. Mr. Singla says that in view of the order passed by this Court today in I.A. No.17675/2018, he does not press this application. Mr. Singla, however, seeks liberty to move the Court, once again, if the situation so demands.

21. The application is dismissed as not pressed with liberty as prayed for by the decree holder.

22. Since orders have already been passed not only on 2.11.2018 but also today, this application is disposed of. In case there is a failure to disclose the assets by the judgment debtor, the decree holder would have leave to move the Court for appropriate directions.

OMP (ENF.) (COMM.) No.254/2018 & I.A. No.15265/2018 & 15481/2018

23. Renotify the matter on 23.7.2019.

24. The Registry will, for the purpose of good order and record, scan and upload the order dated 9.1.2019 passed in the aforementioned suits.

RAJIV SHAKDHER, J JANUARY 14, 2019/pmc OMP (ENF.) (COMM.) 254/2018 Page 7 of 7