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Rakesh Kumar Jain vs Adtv Communication Pvt Ltd & Anr on 11 February, 2019

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

$~11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    EX.P. 133/2016, EA No.639/2016 (u/O II R-30,54,64 & 66 CPC), EA
     No.788/2016 (u/S 47 r/w O-XXI R-58 CPC), EA No.229/17 (u/O I R-
     10 CPC), EA No.1/2018 (u/O XXI R-58 CPC), EA No.63/2018 (u/O I
     R-10 CPC) & EA No.390/2018 (objection by JD-1)
     RAKESH KUMAR JAIN                              ..... Decree Holder
                       Through: Mr. A.K. Bajpai, Mr. Nitin Bajpai,
                                   Mr. Akshay Gadeock, Mr. Udit
                                   Grover & Mr. Rahul Bisht, Advs.
                             Versus
     ADTV COMMUNICATION PVT LTD & ANR ..Judgement Debtors
                       Through: Mr. Praveen Kumar, Adv. for JD-1.
                                   Mr. Ashish Virmani & Mr. Akshay
                                   Abrol, Advs. for Objector in EA
                                   No.788/2016.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                ORDER

% 11.02.2019

1. The counsel for the decree-holder states that vide order dated 12th October, 2018, Court Auctioneer was appointed to auction the property of the judgment-debtor no.1 but no offers were received and he has filed an application for re-auction but which has not come on record.

2. On enquiry, it is stated that the property ordered to be auctioned is at Ghaziabad.

3. If that be so, then it is not understandable as to how the auction in execution can be held by this Court and the execution has to be transferred to the Ghaziabad Court for execution.

4. At this stage, the counsel for the judgment-debtor no.1 appears and states that his objections are pending.

5. It is also not understandable how during the pendency of objections, auction has been ordered. Be that as it may, on enquiry as to what are the objections, it is stated that of all the immovable properties listed in the execution application and wherefrom the decretal amount was sought to be realized, the judgment-debtor no.1 is the owner only of property of which auction has been ordered but that property also has been agreed to be sold on 28th June, 2013 to M/s Boulder Infratech Pvt. Ltd. and the entire consideration has been received. It is further stated that the said M/s Boulder Infratech Pvt. Ltd. had also made an application for impleadment but which has been dismissed vide order dated 2nd August, 2018.

6. Once the application of M/s Boulder Infratech Pvt. Ltd. has been dismissed and the said order has attained finality and no appeal thereaginst is stated to be preferred, it is not open to judgment-debtor no.1 to take the same objection.

7. On further enquiry, it is stated that the Agreement to Sell is not registered.

8. In Uttar Pradesh, no rights under Section 53A of the Transfer of Property Act, 1882 even can be created by an Agreement to Sell which is not registered. Thus, it appears that the application of M/s Boulder Infratech Pvt. Ltd. was rightly dismissed.

9. In view of the aforesaid, the objections filed by the judgment-debtor no.1 being EA No.390/2018 are dismissed.

10. A certificate of transfer of decree along with certificate of non- satisfaction and other requisite documents be issued to the decree-holder, transferring the decree, insofar as for recovery of the amount from sale of EX.P. 133/2016 Page 2 of 3 property viz. free hold plot of 19795 sq. mtrs. situated in Sector-11, G Block, Pratap Vihar, Ghaziabad, UP, to the District Judge, Ghaziabad, UP for execution.

11. There is also a controversy, whether the decree is only against the judgment-debtor no.1 or jointly and severally against the two judgment- debtors.

12. The counsel for the judgment-debtor no.1 draws attention to the order dated 24th April, 2017 in this regard but which is inconclusive.

13. Though the counsel for the judgment-debtor no.2 has not appeared but is found to have been appearing.

14. It is deemed appropriate to address the said controversy in the presence of the counsel for the judgment-debtor no.2.

15. The counsel for the buyers of one of the properties under development by the judgment-debtor no.1 draws attention to the objections filed by the said buyers to the attachment of the bank account of the judgment-debtor no.1 and to paras no.13 to 15 of the order dated 24 th April, 2017 in this regard.

16. The counsel for the decree-holder who had on 24th April, 2017 also sought adjournment to verify the statement of account, today also does the same.

17. Last opportunity is given for the said purpose.

18. List on 13th March, 2019.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 11, 2019 „gsr‟..