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Harinder Kumar v/s Girish Peshoria

    EX.P. No. 73 of 2021 & EA. No. 250 of 2022 (u/S 151 of CPC)

    Decided On, 29 August 2022

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE AMIT BANSAL

    For the Decree Holder: Rahul Dubey, Advocate. For the Judgement Debtor: Rajat Aneja, Aditi Shastri, Aparna Shukla, Advocates.



Judgment Text

(Oral)

1. The present execution petition has been filed seeking execution of the decree passed by this Court on 14th December, 2018 in terms of the settlement arrived at between the parties.

2. By way of the present execution proceedings, the decree holder seeks the following directions against the judgment debtor:

(i) The Judgment debtor be directed to surrender vacant and peaceful possession of the entire first floor of the property bearing No.14, Eastern Avenue, Maharani Bagh, New Delhi-110065 to the decree holder (Maharani Bagh Property).

(ii) Direct judgment debtor to pay a sum of Rs.4,00,00,000/- along with interest @ 18% per annum from 14th June, 2019 till the date of payment.

3. Notice in the execution petition was issued on 16th December, 2021. The objections have been filed by the Judgment Debtor on 24th February, 2022 and the decree holder has filed a reply to the objections.

4. It was noted in the order dated 23rd December, 2021 that the judgment debtor, without prejudice to his rights and contentions, shall vacate the first floor of the Maharani Bagh property on or before 14th February, 2022. As noted in the order dated 25th February, 2022, the possession of the first floor of the Maharani Bagh property has been handed over to the decree holder.

5. Counsels for the parties have been heard in respect of the objections filed by the judgment debtor on 13th July, 2022 and today. The written submissions have been filed on behalf of the decree holder.

6. The decree of which the execution is sought was a consent decree passed by this Court on 14th December, 2018 after recording the statement of the decree holder and the judgment debtor. The relevant terms of the settlement as recorded in the statement of the decree holder are set out below:

“(i) The right, title and interest in the immovable property along with superstructure located at 14, Easter Avenue, Maharani Bagh, New Delhi-110065 (in short ‘Maharani Bagh’) would vest in me.

(ii) Mr. Girish Peshoria would surrender possession of the first floor of Maharani Bagh property. The possession of the first floor will be handed over to me within six months from today.

(iii) The right, title and interest in the factory shed along with the land underneath which is located at 14/5, Mathura Road, Faridabad (in short ‘Faridabad property’) will vest in Mr. Girish Peshoria.

(iv) Mr. Girish Peshoria will pay a sum of Rs.4 crores (Rs. Four Crores) to me within six months from today. The said sum of Rs.4 crores will be secured by Mr. Girish Peshoria by furnishing a Post-Dated Cheque (PDC) for an equivalent amount within five days from today.

(v) In case, a need arises to encash the PDC and on presentation, it is dishonoured, interest at the rate of 18% per annum will run on the sum of Rs. 4 crores from the date the PDC is dishonoured.

(vi) In case any tax, charge, cess or liability of any nature is payable qua the Maharani Bagh property and the Faridabad property, which would include liability towards creditors and statutory authorities, which are due and payable as of today and those which may accrue hereafter, the same will be paid by the person in whom the right, title and interest in the property enures as per the instant settlement. In other words, insofar as Maharani Bagh property is concerned, the liability will be borne by me, while the liability with regard to Faridabad property will be borne by Mr. Girish Peshoria.

(vii) Both Mr. Girish Peshoria and myself will execute relinquishment deeds with respect to the said two properties qua which right, title and interest is given up by the other. In other words, I would execute a relinquishment deed vis--vis the Faridabad property while Mr. Girish Peshoria will execute a relinquishment deed in my favour in respect of the Maharani Bagh property. Respective relinquishment deeds will be registered within one month from today.”

7. Mr. Rajat Aneja, the counsel for the judgment debtor submits that in terms of the aforesaid settlement, the amount of Rs.4,00,00,000/- was payable within six months from the date of settlement on the premise that the relinquishment deeds in respect of the properties qua which the right, title and interest is given up by the other party, would be registered within one month after the aforesaid settlement. However, the relinquishment deeds were executed on 14th September, 2021 and therefore, the aforesaid amount of Rs.4,00,00,000/- became payable only after six months from the said date.

8. Counsel for the judgment debtor has relied upon various WhatsApp messages/communications exchanged between the judgment debtor and the decree holder from 19th December, 2018 till 20th February, 2019, wherein the Judgment debtor has been asking decree holder for the documents in relation to the property bearing No. 14/5, Mathura Road, Faridabad, Haryana (Faridabad Property). It is further submitted that the decree holder had admitted to being in possession of the title documents in respect of the Faridabad property. Reference is made to the reply dated 9th January, 2019 on behalf of the decree holder to the letter dated 30th December, 2018, wherein the decree holder has admitted to be in possession of the original title documents. (Page 45 of the objections filed by the Judgment debtor). Once again vide email dated 1st November, 2020 and 4th November, 2020, the judgment debtor to the decree holder called upon the Judgment Debtor to provide the remaining original title documents in respect of the Faridabad property.

9. An application, being I.A. No.16973/2019, was filed on behalf of the judgment debtor seeking modification of the order dated 14th December, 2018 passed by this Court. (Page no.159 of the objections filed by the judgment debtor) On the said application, the following directions were passed by this Court on 23rd November, 2020:

“1. Both the counsels are agreed that a Court Commissioner be appointed in the matter for taking forward the judgment dated 14.12.2018.

2. Accordingly, Mr. G.P. Thareja, former Additional District & Sessions Judge [mobile number: +91-9899664642], is appointed as the Court Commissioner in the matter.



4. The concerned Sub-Registrar(s) are directed to take requisite steps as per law, as and when approached by the Court Commissioner, for the registration of the relinquishment deeds.”

10. Pursuant to the aforesaid order, on 14th September, 2021, relinquishment/transfer deeds were executed by the judgment debtor as well as the decree holder in favour of each other in respect of the properties that came to their share respectively. On the same date, the judgment debtor executed a receipt in favour of the decree holder, in which he acknowledged the receipt of certain original title documents in respect of the Faridabad property. However, only a photocopy of the Sale Deed dated 22nd January, 1973 in respect of the Faridabad property in favour of Sh. Diljeet Narain was handed over.

11. It is submitted on behalf of the judgment debtor that on account of the original title documents of the Faridabad property not being provided by decree holder to the judgment debtor, the judgment debtor could not take a loan by providing original title documents in respect of Faridabad property as a security. It is further submitted that Rs. 4,00,00,000/- was to be paid on account of difference in value of Maharani Bagh and Faridabad Property and since the value of the Faridabad Property went down, the judgment debtor is not liable to pay Rs.4,00,00,000/-. In this regard, a suit, being CS(OS) 235/2022 has also been filed on behalf of the judgment debtor against the decree holder for setting aside the decree passed by this Court on 14th December, 2018 to the extent that a sum of Rs.4,00,00,000/- be paid by the judgment debtor to the decree holder. The summons in the aforesaid suit have been issued and the said suit is pending before this Court.

12. Counsel for the decree holder has made the following submissions:

(i) All the terms of the settlement dated 14th December, 2018 were independent of each other and not linked. A sum of Rs.4,00,00,000/- was payable six months after the date of settlement irrespective of the relinquishment deeds being executed.

(ii) The cheque of Rs.4,00,00,000/- issued by the judgment debtor to the decree holder in terms of the settlement dated 14th December, 2018, was dishonoured upon presentation by the decree holder on 4th June, 2019.

(iii) The plea of missing original title documents in respect of Faridabad property was taken by the judgment debtor in the aforesaid modification application. The various communications/WhatsApp conversations relied upon by the judgment debtor were prior to the order dated 23rd November, 2020 passed by this Court in the modification application filed on behalf of the judgment debtor and therefore, in light of the aforesaid order, the said communications/ WhatsApp conversations do not have any relevance.

(iv) Reference is made to the order dated 16th October, 2020 passed by this Court in the modification application filed by the judgment debtor, wherein it is specifically noted that both the parties will take requisite steps as indicated in the order dated 14th December, 2018. Reference is also made to the order dated 26th July, 2021, wherein aforesaid modification application was withdrawn by the counsel for the judgment debtor.

(v) Counsel for the decree holder disputes the submission of the counsel for the judgment debtor that the amount of Rs.4,00,00,000/- was payable on account of the difference in the value of the Maharani Bagh property and the Faridabad property.

13. I have heard the counsels for the parties.

14. I find merit in the submission of the decree holder that in light of the various orders passed by this Court on the modification application filed on behalf of the judgment debtor, the various emails/communications relied upon by the judgment debtor in support of his submission to contend that the decree holder did not provide the original title documents in respect of the Faridabad property, lose their significance.

15. It is an admitted position that one of the grounds taken by the judgment debtor in I.A.16973/2019 seeking modification of the consent order dated 14th December, 2018 was that the decree holder had failed to provide the original title documents in respect of the Faridabad property. In the order dated 16th October, 2020, it has clearly been noted that both the parties shall take steps as indicated in the order dated 14th December, 2018. Subsequently, as noted in the order dated 23rd November, 2020, it was agreed between the parties to implement the order dated 14th December, 2018 and a Court Commissioner was also appointed by the Court in this regard. Pursuant to the aforesaid order, the transfer/relinquishment deeds were mutually executed by the judgment debtor and the decree holder in favour of each other. Subsequently, the application for modification was withdrawn by the counsel for the judgment debtor on 26th July, 2021.

16. In light of the aforesaid facts, the judgment debtor cannot be permitted to raise objections with regard to non-supply of original title documents in respect of the Faridabad property by the decree holder to the judgment debtor. By withdrawing the I.A. No. I.A.16973/2019, the judgment debtor has waived his right to raise these issues. The aforesaid issues are being raised at this stage only so as to avoid the payment of Rs.4,00,00,000/- in terms of the consent decree passed by this Court on 14th December, 2018.

17. The intent of the judgment debtor is also evident from the fact that the judgment debtor sought to transfer the Faridabad property in favour of his children, while this Court was hearing the objections raised by the judgment debtor. Vide order dated 26th April, 2022, this Court directed the judgment debtor to file affidavit in terms of Order XXI Rule 41 of the CPC and the matter was adjourned to 13th July, 2022. On 7th July, 2022, the judgment debtor transferred the Faridabad property vide transfer deed dated 7th July, 2022. This fact was not disclosed to the Court when submissions were heard on behalf of the parties on 13th July,2022. This fact came to light only when the affidavit in terms of Order XXI Rule 41 of the CPC was filed on behalf of judgment debtor on 26th July, 2022. In terms of Section 53 of the Transfer of Property Act, 1882, the transfer of immovable property made with the intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. The aforesaid transfer was fraudulent transfer and done only with the intent to defeat the rights of the decree holder.

18. There is no merit in the submission of the judgment debtor that the payment of Rs. 4,00,00,000/- was to be made only after the registration of the relinquishment deed. There is nothing in the decree passed on 14th December, 2018 to suggest that the payment of Rs.4,00,00,000/- was to be made only after six months from t

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he registration of the relinquishment deed. Further, there is nothing to suggest that Rs. 4,00,00,000/- was payable on account of difference in value of the Faridabad and Maharani Bagh properties. Similarly, the pendency of CS(OS) 235/2022 cannot be the basis for non-execution of the present decree. 19. Even if it is assumed that the liability of the judgment debtor to make the payment of Rs.4,00,00,000/- was to arise after the registration of the said relinquishment deed in respect of the Faridabad property, the judgment debtor has failed to make the payment of Rs.4,00,00,000/- even after expiry of six months from its registration ie. 14th September, 2021. The judgment debtor has throughout been taking inconsistent stands in order to avoid his liability to pay the aforesaid amount. As noted above, the conduct of the judgment debtor has been questionable in as much as the judgment debtor attempted to transfer the Faridabad property in favour of his children during the pendency of the present execution proceedings. 20. In view of the above discussion, no merit is found in the objections filed on behalf of the judgment debtor. The same are dismissed with costs of Rs.50,000/- 21. In view of the dismissal of the objections filed on behalf of the judgment debtor, the warrants of attachment shall be issued in respect of the property bearing no. 14/5, Mathura Road, Faridabad, Haryana, returnable for 19th October, 2022 before the Joint Registrar.
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