Ex.P. No.72/2010. Case: M/s. Trg Industries P Ltd. Vs M/s. Machinery Parts Corporation & Anr.. High Court of Delhi (India)
| Case Number | Ex.P. No.72/2010 |
| Counsel | For Appellant: Mr.Vivekanand, Adv. and For Respondent: Mr.Hitender Kapur, Adv. with Mr.Sagar Chawla, Adv. |
| Judges | Manmohan Singh, J. |
| Issue | Civil Procedure Code - Sections 47, 47(1), 3, 151, Order 21 Rule 23; Partnership Act, 1932 - Section 69; Indian Penal Code - Sections 191, 199; Criminal Procedure Code - Section 340; Evidence Act - Section 85; Indian Companies Act |
| Judgement Date | December 09, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
Manmohan Singh, J.
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The present execution petition has been filed by the decree holder against the judgment-debtors for execution of judgment and decree dated 28th September, 2007 for principle amount of Rs.42,08,469/- along with interest on the principle amount @ 15% per annum w.e.f. 2nd March, 2002 till the date of payment.
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After passing the judgment and decree, the judgment debtor challenged the same before the Division Bench by filing of an appeal being RFA (OS) No.1/2008.
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While issuing notice in the appeal vide order dated 23rd January, 2008 the Division Bench directed the judgment debtor No.1 to deposit 50% of decreetal amount within four weeks from the date of the said order and stayed the operation of the judgment and decree till the next date i.e. 23rd April, 2008.
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The judgment-debtor No. 1 did not deposit the 50% decreetal amount and on the next date i.e. 23rd April, 2008, the order dated 23rd January, 2008 was modified at the request of the judgment-debtor No. 1 that he be given possession of the machinery as Receiver of the Court and against that he would continue paying directly to the decree holder a sum of Rs.1,00,000/- per month by 7th day of every month from 7th July 2008 on wards till further orders. It was also made clear that if the order is violated by the judgment-debtor No.1, the decree-holder would be at liberty to seek coercive action against the judgment-debtor No.1 including the sale of the machinery. The same order was reaffirmed in orders dated 12th August, 2008 and 16th March, 2009.
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The judgment-debtor No.1 stopped making payments after May, 2009 and did not make per month payment of Rs.1,00,000/- as per order dated 23rd April, 2008 and rather filed application for modification of the order dated 23rd April, 2008.
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The Division Bench by order dated 18th November, 2009 disposed of all applications of the judgment debtor No. 1 stating that the orders passed by the Court have not been complied with and as such the order staying operation of decree was recalled and the decree holder was given liberty to initiate appropriate proceedings for execution of the decree. Hence, execution application is filed as per orders dated 23rd April, 2008 and 18th November, 2009 of the Division Bench.
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It is an undisputed fact that part payment of Rs.11,00,000/- @ Rs.1,00,000/- per month from July, 2008 to May, 2009 has been received towards satisfaction of the decree/ order.
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On the date of execution, as per calculation of the decree-holder on 5th March, 2010 after deducting Rs.11,00,000/- the balance was due for sum of Rs.82,02,142.55/-.
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The decree-holder has sought the prayer to attach and direct the judgment-debtor No. 1 to give back possession of and to appoint Local Commissioner to take possession of the Russian Make Motor Grader DZ 180 with all accessories and parts thereof, which is the subject matter of the suit and decree, the possession of which was taken by the judgment-debtor No.1 from the decree-holder as Receiver of the Court in terms of order dated 23rd April, 2008 of the Division Bench and the Local Commissioner be also directed to sell the said Motor Grader in the open Market with help and in consultation with the decree-holder for realization of the decreetal amount and for realization of balance amount and attach the funds of the Judgment-Debtor No.1 in Bank Account Number 0045-101-000-3868 with Syndicate Bank Branch, 3478-34-79 Nicholson Road, Mori Gate, Delhi to the extent of Rs.82,03,143/-.
The balance decreetal amount after adjustment of sale proceeds of the Grader in question be ordered to be released in favour of the decree-holder by directing the Manager of the Bank to prepare the pay order in the name of the decree-holder of the aforesaid amount as stated above and send to this Court for payment to the decree holder.
The attachment was also sought of all office building/business of judgment-debtor No.1 situated at 2778/16, Rajasthan Motor Market, Hamilton Road, Mori Gate, Delhi-06 and also the articles, furniture, fixtures, and machineries lying therein and order for sale for the purpose of realization and payment of the decreetal amount along with costs to the decree-holder through the process of the Court. The objections under Section 47(1) and (3) of CPC on behalf of judgement- debtor No.1 against the execution petition has been filed being E.A. No.455/2012.
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In the objection, it was stated that the present execution is liable to be dismissed as the same has been wrongly filed by M/s TRG Industries (P) Ltd. In fact, the decree was passed in favour of M/s BRA-TRG-BHARAT Joint Venture Partnership Company through one of its constituent partner M/s TRG Industries (P) Ltd. The present decree-holder has no locus standi to file the present execution petition in its own name. The same is barred under Section 69 of The Partnership Act, 1932 as the decree-holder joint venture partnership company M/s BRA-TRG-BHARAT is an unregistered partnership Company and thus cannot file any proceedings against the third party.
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In order to establish his objection, judgment-debtor No.1 has submitted that during cross examination of PW-1 in the suit, it has been categorically stated by the witness that ''JV is a partnership firm of three companies viz, B R Arora & Associates (P) Ltd., M/s Bharat Infrastructure & Engineering Pvt Ltd and the plaintiff company''. It is further stated by PW-1 that "There is no document of registration of the firm issued by the Registrar of firms since it was for a specific purpose".
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PW-1 in his cross examination has also admitted that the invoice for sale of machinery was raised by judgement-debtor No. 1 herein, in favour of joint venture company. It is further admitted by the said witness that payment for the machinery was also made by the joint venture company.
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After filing the response to the objections, decree-holder filed an application being E.A.No.62/2013 under Section 151 read with Order 21 CPC on behalf of the decree holder for passing certain directions.
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It is stated in the application that the judgment-debtor No.1 appeared on service of warrants in the Court on 7th February, 2012, after about one year of the order of the Supreme Court and himself offered to hand over the machine in question to the decree holder for sale towards realization of...
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