Delhi High Court - Orders
Itc Limited vs Vikas Rastogi on 25 April, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.P. 91/2018 & EX. APPL. (OS) 321/2019
ITC LIMITED ..... Decree Holder
Through: Mr. Kunal Kher, Adv.
versus
VIKAS RASTOGI ..... Judgement Debtor
Through: Mr. Anand Singh, Adv. along with JD
in person.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 25.04.2023
1. The present petition seeks execution of judgment/decree dated 20.07.2018, passed in CS (COMM)846/2017, in terms of which the judgement debtor was directed to pay to the decree holder a sum of Rs.1,77,35,973.91/- along with pendent lite and future interest @ 6% p.a. and actual cost of litigation borne by the decree holder.
2. An affidavit of assets was filed on behalf of the judgment debtor on 26.11.2019 wherein it was, inter-alia, stated by the judgement debtor as under:
"2. ......................
c) Status of Immovable Asset:
That I have no immovable properties in my name."
3. Learned counsel for decree holder submits that the aforesaid statement made by the judgment debtor in the affidavit dated 26.11.2019 was false to the knowledge of judgment debtor as is now clear from perusal Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:27.04.2023 EX.P. 91/2018 Page 1 of 5 18:26:40 of the contents of the affidavit dated 13.03.2023, filed by the judgment debtor pursuant to the directions contained in the order dated 07.12.2022. The said affidavit dated 13.03.2023 contains the following averments:
"viii. The particulars of properties sold by the Deponent, after the date of filing of the execution, are as under:-
A. GA 22, HIG, River Bank Enclave, Trivenipuram, Jhunsi, Allahabad.
It is submitted that the father of Deponent had a firm with the name & style of "Vikas Collection", which had a loan with Canara Bank, Kalyani Devi Branch, bearing Loan A/c No. 1818261014105 in 2016. The Deponent was a co-guarantor to such loan with Canara Bank and the property of the Deponent being GA 22, HIG, River Bank Enclave, Trivenipuram, Jhunsi, Allahabad was pledged against the said Loan.
The said Loan A/c No. 1818261014105 became NPA in 2016 and the Canara Bank filed DRT Suit on and also got the possession of the said property under SARF AESI Act and the said property was to be sold in the market at distressed selling price in 2017, according to the valuation done by the Bank, as Rs. 28 Lacs.
As such, the Deponent approached the Bank and convinced them that the Deponent would be able to sell the property al better price, then the valuation of the said property done by the bank, for which the Bank agreed and Bank signed the OTS for Rs. 40.8 Lacs, against the limit of Rs. 50 lacs, vide OTS letter dated 27.03.2018. The Deponent agreed for the same, since if bank would have sold the said property, Deponent would have been left with liability to pay the balance, over and above the amount, which the Bank would have realized after selling my said property, of its own.
Since the Deponent did not have such amount, the Deponent approached one Mr. Mohd. Muslim to pay and settle the bank dues from his own funds, with understanding that upon sale of the said property, the Deponent would return his amount and also the amount above the bank liability, in which the said property is sold. Mr. Mohd. Muslim as such started depositing the liability of the Deponent towards the Bank directly in the NPA Account and all the amounts under the OTS stood paid by him only by 26.03.2019, after which NOC/ No Dues from the Bank was received on 09.04.2019.
Mr.Mohd. Muslim, after NOC and release of property documents from the Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:27.04.2023 EX.P. 91/2018 Page 2 of 5 18:26:40 Bank, took the property documents with him. On 7thMay, 2019,the Deponent was called to the concerned Registrar Office, for execution of Sale Deed by the Deponent for Rs. 42 lacs. The sale amount was transferred in the Account of the Deponent, being Allahabad Bank Ale No. 50410595635, as it was required to be mentioned in the Sale Deed, to be credited in the name of Deponent.
Upon transfer of said Sale amount in the account of the Deponent, Rs. 37 Lacs were returned to Mr. Mohammad Muslim on 14.05.2019 and Rs.4.8 Lacs were also paid to Mr. Mohd. Muslimon 04.05.2019, which amount was got from the buyer, as advance.
B. I sold my car Toyota Etios UP70CU0933 on 25m February,2021 and cleared balance bank car loan of Rs.2,51,500/- same day as was finding it difficult to pay the instalments.
C. I sold some shares on 25.03.2019 and 07.05.2019 for Rs. 30,600/- and Rs. 45,000/- respectively."
4. It is evident from perusal of the aforesaid, that the deponent/judgment debtor was the owner of a property bearing No.GA 22, HIG, River Bank Enclave, Trivenipuram, Jhunsi, Allahabad.
5. Clearly, there was a material concealment in the previous affidavit inasmuch as the ownership of the said property by the judgment debtor was not disclosed.
6. The affidavit dated 13.03.2023 also reveals that a sale deed was executed by the deponent/judgment debtor in respect of the aforesaid property for a sum of Rs.42 Lacs. A copy of the sale deed has not been filed along with the said affidavit; the details of the vendee/transferee have also not been disclosed.
7. Further, the version given in the affidavit dated 13.03.2023 with regard to circumstances leading up to the alienation of the aforesaid property is, prima facie, also lacking in credence. Also, the alleged transfer of the sale Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:27.04.2023 EX.P. 91/2018 Page 3 of 5 18:26:40 consideration amount to one Mohd. Muslim, prima facie, does not appear to be a legitimate transaction.
8. It appears prima facie that the aforesaid transaction was carried out with a view to circumvent the present execution proceedings.
9. In the circumstances, it is directed that status quo as regards title and possession shall be maintained in respect of property bearing No.GA-22, HIG, River Bank Enclave, Trivenipuram, Jhunsi, Allahabad, till the next date of hearing.
10. The deponent/judgment debtor is also directed to file a copy of the sale deed, executed in respect of the aforesaid property. Let the said sale deed be filed within a period of 10 days.
11. On steps being taken by the decree holder, let notice be issued to the vendee/transferee, as referred to in terms of the said sale deed for the next date of hearing, through all permissible modes, including electronically.
12. The deponent/judgment debtor is also directed to provide the address of Mr. Mohd. Muslim to whom the amount of Rs.42 Lacs is stated to have been paid by the judgment debtor. Let the said particulars be supplied by the judgment debtor to learned counsel for the decree holder within a period of 10 days.
13. On steps being taken by the decree holder, let notice be issued to Mr. Mohd. Muslim for the next date of hearing, through all permissible modes, including electronically. Dasti in addition.
14. Further, the affidavit dated 13.03.2023, filed by the judgment debtor discloses that the judgment debtor has certain bank accounts and owns certain stocks and shares as under:
"(a) Banking accounts:-Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:27.04.2023 EX.P. 91/2018 Page 4 of 5 18:26:40
Bank of Baroda A/c No.2440100038360; HDFC A/c No.50100065591477; Bank of India A/c No.700010310000549; Allahabad Bank A/c No.50410595635; Union Bank A/c No.538701010200332.
(b) Stocks and shares:-
Tourism Finance Corporation of India : 300 shares (Transferred to IEPF); Apar Industries Ltd. :352 Preferential Shares; Kings International Aqua Marine : 200 Shares; Movilex Plastics : 200 shares; Shree Bhawani Paper Mills : 600 shares. Receiving dividend of Rs.250/- from Apar Industries Ltd."
15. The aforesaid bank accounts and the aforesaid shares are attached.
16. The judgment debtor is directed to disclose, on affidavit, the details of bank accounts, if any, in respect of proprietorship firm in the name and style of "Vikas Collection" and "Vikas International". Let the judgment debtor file an affidavit, also enclosing bank statements for the last five years in respect of these entities, within a period of four weeks.
17. On necessary steps being taken by the decree holder, issue notice to Canara Bank, Kalyani Devi Allahabad Branch (which bank is stated to have advanced loan to the firm in the name and style of "Vikas Collection" in the year 2016), for the next date of hearing.
18. List on 03.08.2023.
19. The judgment debtor is directed to remain personally present in court on the next date of hearing.
SACHIN DATTA, J APRIL 25, 2023/cl Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:27.04.2023 EX.P. 91/2018 Page 5 of 5 18:26:40