Delhi District Court
Dh vs Varun Kumar And Ors on 19 January, 2019
1
IN THE COURT OF SH. HASAN ANZAR, LD ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
EX No. 60507/16
Au Finance Ltd
..........DH
Versus
Varun Kumar and Ors.
..........JDs
Date of Order: 19.01.2019
ORDER
1. This order shall dispose of objection under section 47 CPC filed by JD no.1 & 2 contending that the execution proceedings be set aside.
2. Vide arbitral award dated 12.10.2015, an award of Rs. 3,64,275/- alongwith interest and cost were passed against the JDs.
EX No. 60507/16 Page1/5 23. JDs have taken the objection that award was passed by the court without jurisdiction, Secondly, the consent for appointment of Arbitrator was not taken, Notice has not been received from the Arbitrator and lastly, it was submitted that Sh Satish Kumar has purchased the vehicle which was financed by DH and DH company has accepted and allowed the transfer the loan in the name of Satish Kumar after taking requisite documents from Satish Kumar. It was also contended that officials of DH has assured the JD no.1 that since loan has been transferred in the name of Satish Kumar, therefore, JD No.1 should not be worried about loan transaction and even guarantor stands discharged from his liability.
4. It is also averred in the objection application that vehicle in question was stolen and in this regard an FIR no. 174/15 PS Nangloi, was registered by Sh Satish Kumar.
5. JD has also filed transcript as well as CD stating that there were conversation in between Sh Atul Sharma and Siddharth and other persons to the effect by which as per instruction the official of DH has permitted transfer the vehicle.
6. DH has filed counter affidavit and has denied the EX No. 60507/16 Page2/5 3 submission as made in the objection application as filed by JD.
7. I have heard ld counsel for the parties and perused the objection and counter affidavit as filed by DH.
8. The fact of the matter is that the arbitral award has been passed against JD no.1 & 2 whose certified copy is already on record and the objection of JD that arbitral proceedings were not conducted in the proper manner cannot be considered by an Executing Court and for which the remedy for JDs was to take appropriate steps under the provisions of Arbitration & Conciliation Act,1996 as such an objection on this aspect cannot be considered in the execution proceedings.
9. The second objection of JD is that he has sold the vehicle to one Sh Satish Kumar and has filed all the documents with DH. It is pertinent to mention that as on date, no document has been placed on record to show that DH has permitted the transfer of the vehicle or loan account in favour of Satish Kumar and merely on the bald plea of JDs it cannot be held that JDs are not liable to pay the awarded amount to Decree Holder when no document has been placed on record to state that JDs have been discharged from their liability to pay decreetal amount.
EX No. 60507/16 Page3/5 410. JD has filed the photocopy of agreement dated 15.4.2014 in between JD No.1 and Satish Kumar whereby it has been stated that said Satish Kumar has agreed to pay all instalments to DH. The said internal arrangement is in between the JD no.1 and Sh Satish Kumar for which it cannot be held that JDs have been exonerated from their liability to pay the decreetal amount to Decree Holder. No document or "no objection" from Decree Holder has been filed whereby DH has permitted such an arrangement or the loan account of vehicle was transferred by Decree holder in the name of Satish Kumar whereby both JDs has been exonerated from his liability to pay decreetal amount to Decree Holder.
11. JD has filed transcript and CD having conversation in between the official of DH and JD on the other side. The said transcript/CD cannot be considered as same has been recorded in the surreptitious manner and furthermore there is nothing in the transcript which shows it was agreed that no amount is payable by Judgement Debtor and further more, even this transcript indicates that certain formalities have to be completed by JD. No.1. Merely on the existence of this communication, it cannot be said that vehicle loan was transferred to Satish Kumar and JD are not liable.
EX No. 60507/16 Page4/5 512. Even otherwise, the issue that vehicle was transferred in the month of April, 2014 to Satish Kumar with the consent of DH cannot be considered by an Executing court and the forum where this these issue could be considered was before Ld Arbitrator.
13. In the absence of any document by virtue of which loan account was transferred in the name of Sh Satish Kumar, it cannot be said that JDs are not liable to pay any decretal/awarded amount to the DH.
14. Since JD no.1 has taken the loan in respect of the vehicle no. DL 1 LS 7677 and JD no.2 has stood as guarantor, therefore both of them are jointly and severally liable to make the payment to the DH.
Accordingly, objection as filed by JD No.1 & No.2 are dismissed.
Announced in the Open Court
on 19.01.2019 (Hasan Anzar)
Additional District Judge-06
West District, THC
EX No. 60507/16 Page5/5