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S. Mohinder Pal Singh & Anr vs M/S. New Punjab Motor And Tractor Works & ... on 10 February, 2021

Author: J.R. Midha

Bench: J.R. Midha

                          $~O-27
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      OMP(ENF)(COMM) 28/2021
                                 S. MOHINDER PAL SINGH & ANR.                          ..... Petitioners

                                                      Through:    Ms. Meena Chaudhary Sharma,
                                                                  Advocate
                                                                  Mr. Ankur Yadav, Advocate

                                                      Versus

                                 M/S. NEW PUNJAB MOTOR AND
                                 TRACTOR WORKS & ORS.                                 ..... Respondents

                                                      Through:    Mr. Sanjay Katyal and Mr. S. S.
                                                                  Katyal, Advocates
                                 CORAM:
                                 HON'BLE MR. JUSTICE J.R. MIDHA

                                        ORDER

% 10.02.2021

1. The hearing has been conducted through video conference.

2. The petitioner is seeking execution of the award dated 30 th September, 2020 whereby the learned Arbitrator awarded the following relief to the petitioner:

"21. Therefore, taking note of the above judicial precedent and considering the factors where the demised premises is situated, it is held that the claimants are entitled to and the respondents are liable to pay Rs.2,59,913/- (Rs.2,26,012/ X 15%) being the use and occupation charges being mesne profits w.e.f. 01.08.2020 till 31.07.2021 and further on yearly enhancement @ 15% per annum apart from damages at the rate of Rs.25,000/- per day. The claimants are entitled to recover the same with interest @ Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:17.02.2021 18:11:10 12% per annum if the respondents failed to pay the same to them till 7th day of each English calendar month.

22. In view of the above facts and circumstances, the claimants are entitled to receive possession of the demised premises being Ground Floor, area measuring 400 Sq. yds. approx., First Floor, area measuring 500 Sq. ft. approx and entire Second Floor of the Built-up property bearing No.C- 36, Wazirpur Industrial Area, Delhi-110052, alongwith two Power connection of 46 KW and 38 KW alongwith all fittings and fixtures and to receive Rent, mesne Profits, Damages, etc., from the respondents.

23. That the respondents, jointly and severally, are liable to:

A. pay Rs.16,98,042/- to the claimant No.1; and Rs.17,68,693/- to the claimant No.2 being amount of outstanding due upto 31.07.2020 alongwith interest @ 12% per annum from the date of filing claim petition till actual final realization;

B. pay Rs.2,59,913/- as use and occupation of charges being mesne profits from 01.08.2020 till 31.07.2021 and further yearly enhancement @ 15% per annum on that amount alongwith interest @ 12% per annum, if the respondents failed to pay on 7th day of each English calendar month.

C. pay Rs.59,25,000/- being compensation charges @ Rs.25,000/- w.e.f. 05.09.2010 till 24.03.2020 and further w.e.f. 01.07.2020 till filing of the claim petition alongwith future interest @ 12% per annum i.e. from the date of this Award till actual final realization;

D. pay Rs.25,000/- per day as compensation charges in addition to and apart from mesne profits from the date of filing of this claim petition till vacation of the demised premises alongwith interest @ 12% per annum from the due date till actual final realization;

E. the interest free Security amount will only be refunded after clearance of all the outstanding dues by the Respondents and peaceful vacation of property.

xxx xxx xxx Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:17.02.2021 18:11:10

27. The claimants has further argued that the claimants deserve to be allowed a sum of Rs.1,10,000/- towards litigation cost and expenses of Arbitration, legal fees in preparing the arbitration case, consultation fee, Advocates fees, etc., as the same has been necessitated due to the defaults of the Respondents. The claimants have deposited the complete expenses borne by them for the present Arbitration proceedings and which was taken on record.

28. Accordingly, after considering facts and circumstances and non-cooperation of the respondents, the Respondents shall pay to the claimant a sum of Rs.1,10,000/- as costs of these proceedings and shall also pay all such costs and expenses that may be borne and incurred by the Claimant for recovering Awarded Amount and implementation of the present award."

3. Learned counsel for the petitioner submits that the respondents have not filed any objection to the award under Section 34 of the Arbitration and Conciliation Act.

4. Learned counsel for the petitioner further submits that she has filed a petition under Section 9 of the Arbitration and Conciliation Act against the respondent in which Mr. Sanjay Katyal, Advocate is representing the respondents.

5. Mr. Sanjay Katyal, Advocate present before this Court submits that he has no instructions from the respondents to appear in this matter. He, however, submits that he has intimated the respondents about this case listed before this Court today.

6. Issue notice to the respondents by all modes including email returnable on 06th April, 2021.

7. Issue warrants of possession in favour of the petitioner to recover the possession of the property mentioned in para 22 of the award namely-

: Ground Floor, area measuring 400 sq. yds. approx., First Floor, area measuring 500 Sq. ft. approx and entire Second Floor of the Built-up property bearing No.C-36, Wazirpur Industrial Area, Delhi-110052. The petitioner is permitted to furnish the copy of the site plan to the bailiff.

8. In the event of any resistance to the recovery proceedings, the bailiff is permitted to break open the locks. The SHO of local police station shall provide necessary assistance to the bailiff to recover the possession and handover the same to the petitioner.

9. The respondents are directed to file an affidavit of assets of the respondent on the date of the cause of action, date of the award as well as today in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within 30 days of the receipt of the notice.

10. Respondent No.1 is further directed to file an additional affidavit in the format of Annexure B1 and respondent Nos.2 and 3 are directed to file additional affidavit in format of Annexure A1 to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture in Ex.P.275/2012, MANU/DE/1497/2020, passed on 05th August, 2020 along with the documents mentioned therein within 30 days of the receipt of the notice.

11. The respondents shall not transfer, alienate or create any third party interest in respect of his assets except in the ordinary course of business till the next date of hearing. The respondents shall not discharge any liability except the liability in respect of bank/financial institutions, without the permission of this Court till the next date of hearing.

12. The respondent Nos.2 and 3 shall remain present before this Court on the next date of hearing.

13. The order be uploaded on the website of this Court forthwith.

J.R. MIDHA, J.

FEBRUARY 10, 2021/ds Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:17.02.2021 18:11:10