Bangalore District Court
M/S Smart Asset Services India Pvt Ltd vs Trishul Developers on 13 March, 2024
KABC170168812020
IN THE COURT OF LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE,
COMMERCIAL COURT, BENGALURU (CCH-84)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
C/c LXXXVIII Addl. City Civil &
Sessions Judge (CCH-89)
Bengaluru.
COM.EX.No.1366/2019
Dated on this 13th day of March 2024
Decree Holder M/s. Smart Asset Services India
Private Limited.
(By Sri.Shivaprasad Santhana
Goudar, Advocate)
// versus //
Judgment Debtors Trishul Developers & others
(By Sri.Raghuram Kadambi,
Advocate)
IA No.3 & 4
Applicant/
Decree Holder M/s. Smart Asset Services India
Private Limited.
Having its registered office at:
No.151, 9th Main, 6th Sector,
HSR Layout, Bengaluru-560102.
Represented by its
Authorized Signatory
Ms.Diana Ninu Mathew.
(By Sri.Shivaprasad Santhana
Goudar, Advocate)
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// versus //
Respondent/
Judgment Debtors 1. Trishul Developers
A Partnership Firm,
having its office at:
Mittal Towers,
No.109, 'B' Wing, 1st Floor,
No.6, M.G.Road,
Bengaluru-560001.
Represented by its
Managing Partner Mr.Niraj Mittal.
2. Mr.Niraj Mittal,
Major,
Managing Partner,
Trishul Developers,
Mittal Develolpers,
No.109, 'B' Wing, 1st Floor,
No.6, M.G.Road,
Bengaluru-560001.
Also residing at:
94/D, 9th 'C' Main,
RMV Extension,
Bengaluru-560080.
3. Mr.O.P.Mittal,
Major,
Trishul Developers,
Mittal Develolpers,
No.109, 'B' Wing, 1st Floor,
No.6, M.G.Road,
Bengaluru-560001.
Also residing at:
94/D, 9th 'C' Main,
RMV Extension,
Bengaluru-560080.
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4. Mrs. Uma Mittal,
Major,
Trishul Developers,
Mittal Develolpers,
No.109, 'B' Wing, 1st Floor,
No.6, M.G.Road,
Bengaluru-560001.
Also residing at:
94/D, 9th 'C' Main,
RMV Extension,
Bengaluru-560080.
5. Mrs. Jyoti Mittal,
Major,
Trishul Developers,
Mittal Develolpers,
No.109, 'B' Wing, 1st Floor,
No.6, M.G.Road,
Bengaluru-560001.
Also residing at:
94/D, 9th 'C' Main,
RMV Extension,
Bengaluru-560080.
(By Sri.Raghuram Kadambi,
Advocate)
ORDERS ON IA No. 3 & 4
IA No. 3 is filed by DHR under Order 21, Rule 13 of the
CPC for attachment of 8 immovable properties described in
the schedule of the said IA. IA No. 4 is also filed by DHR
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under Order 21, Rule 41 of CPC to direct the JDRs to file
affidavits stating the particulars of their assets.
2. The JDRs have filed detailed objections to both the
applications.
3. I have heard both sides and perused the records of the
case.
4. The points that arise for my consideration are :-
1) Whether IA no.3 deserves to be allowed and
Court should order for attachment of the
immovable Properties described in said IA?
2) Whether IA No. 4 deserves to be allowed and
the JDRs should be directed to file
affidavits stating the particulars of their
assets?
5. My answer to the above points are as per finding for
the following :-
REASONS
Point No. 1 :-
6. The facts in brief are that the present execution petition
is filed by the D.H.R. against J.D.R. No.1 to 5 for executing
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the arbitral award passed by Learned Sole Arbitrator in AC-37
of 2018 dated 28-12-2018. By the said award, the J.D.R.s
herein are directed to pay to the D.H.R. herein sum of
Rs.26,92,80,169 along with interest at 9% per annum from
date of claim petition till date of settlement and further
directed to pay Rs.6,34,000 towards cost of the proceedings.
7. Claiming that the JDRs have not paid the awarded
amount, the present execution petition is filed. In the present
EP, on issuance of notice to the JDRs, the JDR No. 1 to 5
have entered appearance through counsel. Thereafter, the
matter was repeatedly adjourned for taking of further steps by
DHR and at that stage, the present applications have been
filed.
8. Under IA No. 3, the DHR is seeking attachment of as
many as 8 immovable properties described in the schedule of
the application, on the ground that said immovable properties
belongs to JDRs and hence liable to be attached and sold in
execution of the award. In the objections filed to IA No. 3, the
contentions raised are, firstly that the application is filed
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under wrong provision of law, and secondly that the
immovable properties sought to be attached are mortgaged or
sold by the JDRs and hence not available for attachment and
even otherwise, two of the properties are outside the
jurisdiction of this court.
9. In respect of the first objection that the application is
filed under wrong provision of law, it is to be stated only to be
rejected because the law is settled that even if application is
filed under wrong provision of law, it is the duty of the court
to consider the same under the correct provision of law, as
per law laid down by Hon'ble Apex Court in the case of
Challamane Huchha Gowda v. M.R. Tirumala, (2004) 1
SCC 453 at page 459 :-
10. It is also a settled position of law that a mere
non-mentioning or wrong mentioning of a provision
in an application is not a ground to reject an
application.
10. In the case on hand, there is no dispute that under
Order 21, Rule 54 of CPC, the court has the power to order
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for attachment of immovable property belonging to JDR in
execution of the award. Therefore, merely because wrong
provision of law is mentioned, it is not a ground to reject the
present application, and instead it is for this court to consider
whether the property belongs to JDR and hence liable for
attachment in execution of the award.
11. In respect of property, at serial No. 1 of the IA, which is
No. 94D, Rajmahal Villas Extension, Sadashivanagar,
measuring 5400 sq.ft. is concerned, the EC from 1-4-2010 to
29-11-2022 is produced, which shows that presently the
property is standing in the name of from JDR No. 5. In the
objections, it is contended that said property is mortgaged by
JDR No. 5 in favour of ICICI bank but no such mortgage deed
is forthcoming from the encumbrance certificate. The date
and other particulars of the mortgage are not stated in the
objection statement. Hence, it is not possible to accept the
contention that the property has been mortgaged and instead
sufficient material is produced to show that it is standing in
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the name of JDR No. 5 and hence, item No. 1 is capable of
being attached for satisfaction of the award.
12. In respect of item No. 2, which is property bearing No.
94G, Rajmahal Villas Extension, Bangalore, measuring 5400
sq.ft., the encumbrance certificate from 1-4-2006 to 5-1-2023
is produced, which shows that said property is presently
standing in the name of JDR No. 1. Therefore, the objection
that the property has already been sold to third party cannot
be accepted because no such sale is forthcoming from the
encumbrance certificate and therefore, this property is also
liable to be attached.
13. Property at serial No. 3 and 4 are situated in Mysore
and outside the jurisdiction of this court and therefore,
cannot be attached by this court.
14. Property No. 5 to 7 are office properties bearing No.
1565, 1566 and 1567 and in this regard, the encumbrance
certificate from 1-4-2010 to 29-11-2022 is produced, which
shows that said properties are in the name of JDR No. 1.
Therefore, the contention that these properties are sold or
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mortgaged cannot be accepted and therefore, these properties
are also liable to be attached.
15. In so far as property at serial No. 8 is concerned, which
is commercial office No. 1261, even as per the EC produced
by the DHR, the said the property has been sold under the
sale deed dated 9-1-2017 and therefore, the said property
cannot be attached.
16. In view of the above discussion, I hold that the DHR has
produced sufficient material at this stage to show that
property at serial No. 1, 2, 5 to 7 are within the jurisdiction of
this court and standing in the name of JDRs and therefore,
the said properties are liable to be attached under Order 21,
Rule 54 of CPC for satisfaction of the award under execution.
Accordingly, IA No. 3 is partly allowed.
Point No. 2 :-
17. Turning to IA No. 4, under the said IA, the DHR seeks
direction to the JDRs to state on affidavit regarding the
particulars of their assets. In the objections, the contention
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taken is that during the pendency of IA No. 3, the present
application is filed only to protract the proceedings. Under
Order 21, Rule 41 of CPC, where decree for payment of money
has remained unsatisfied for a period of 30 days, the court
may on application of the DHR require the JDR or where JDR
is a corporation any officer thereof to state on affidavit the
particulars of the assets of the JDR. The amount awarded
under the arbitral award under execution is a huge amount of
nearly Rs. 26 crores and it is not certain that the above
properties which are directed to be attached as per orders on
IA No. 3, are sufficient for satisfaction of the award. The JDRs
have not satisfied the award in spite of lapse of nearly 6
years. Therefore, case is made out for directing the JDRs to
file affidavit stating on oath the particulars of the assets
owned by them which can be utilized to satisfy the award.
Hence, IA No. 4 deserves to be allowed and I proceed to pass
the following :-
ORDER
IA No. 3 is partly allowed by considering the same under Order 21, Rule 54 of CPC and office 11 KABC170168812020 CT 1390_Com.EX.1366-2019_order on IA3&4.doc is directed to issue attachment warrant of immovable properties stated at Serial No. 1, 2, 5 to 7 of IA No. 3 if steps taken by DHR.
IA No. 4 is allowed and Managing Partner of JDR No. 1 and JDR No. 2 to 5 are directed to file affidavit stating on oath the particulars of the assets owned by them.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 13th day of March, 2024] (Sri. S. Sudindranath) C/c LXXXVIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.
12KABC170168812020 CT 1390_Com.EX.1366-2019_order on IA3&4.doc Order pronounced in open court. Vide separate order.
ORDER IA No. 3 is partly allowed by considering the same under Order 21, Rule 54 of CPC and office is directed to issue attachment warrant of immovable properties stated at Serial No. 1, 2, 5 to 7 of IA No. 3 if steps taken by DHR.
IA No. 4 is allowed and Managing Partner of JDR No. 1 and JDR No. 2 to 5 are directed to file affidavit stating on oath the particulars of the assets owned by them.
For return of attachment warrant of immovable properties and for JDR No. 1 to 5 to file affidavit regarding particulars of their assets, call on 05-04-2024.
(Sri. S. Sudindranath) C/c LXXXVIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.