Vijay Kumar Kapoor vs Anita Jain
2012 Latest Caselaw 1476 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

     EA Nos. 668-669 of 2011 and 5 of 2012 in Ex. P. 135/2010

                                            Reserved on: February 27, 2012
                                             Pronounced on: March 2, 2012

VIJAY KUMAR KAPOOR                        ..... Decree Holder
             Through: Mr. Akhilesh K. Pandey, Advocate.

               versus

ANITA JAIN                                           Judgement Debtor
                        Through: Mr. Sudhir Nandrajog, Senior Advocate
                                 with Mr. D.D. Tripathi, Advocate for
                                 Applicant in EA Nos. 668-669 of 2011
                                 Mr. Deepak Khadaria, Advocate for
                                 Applicant in EA No. 5 of 2012.

CORAM: JUSTICE S.MURALIDHAR

                                JUDGMENT

02.03.2012

EA Nos. 668-669 of 2011& E.A. No. 5 of 2012

1. EA No. 668 of 2011 is an application by M/s. Yusuf Engineering Company Private Limited ('YECPL') under Order XXI Rule 90 of the Code of Civil Procedure, 1908 ('CPC') for setting aside the sale/auction of the property bearing No. A-24, Okhla Industrial Area, Phase-I, New Delhi - 110020, arising out of the order dated 30th September 2011 passed by this Court. EA No. 669 of 2011 is by YECPL seeking stay of further proceedings in respect of the said auction. EA No.5 of 2012 under Order XXI Rules 94, 95 and 96 CPC has been filed by is by Mr. Manish Katyal, auction purchaser, seeking confirmation of the sale, for issuance a sale certificate and for handed over the vacant and peaceful physical possession of the property in question by the Court Commissioner.

2. The background to these applications is that Execution Petition No. 135 of 2010 has been filed by the Decree Holder ('DH'), Mr. Vijay Kumar Kapoor, for execution of the Award dated 6th January 2010 passed by the sole Arbitrator in the dispute between the DH and Ms. Anita Jain, Proprietor of M/s. Ambica Research and Development, Judgment Debtor ('JD') whereby the JD was held liable to pay the DH Rs.21,01,875.37 together with simple interest at 9% per annum from September 2006 till payment and costs of Rs.50,000. Notice was directed to be issued in Execution Petition No. 135 of 2010 on 18th May 2010. On 26th August 2010 this Court passed the following order:

"The office has reported that the Judgment Debtor has refused to accept dasti notice issued to her. In view of the aforesaid position, the following immovable properties stand attached:

1. A-24, Okhla Industrial Area Phase-I, New Delhi

- 110020.

2. 180-A/3, Forest Lane, Sainik Farms, New Delhi

- 110062.

In addition, the following movables/securities of the Judgment Debtor shall stand attached:

1. Scorpio Car bearing no. DL-2CQ-0016

2. Amount lying in Bank Account No. 90131250000118 with Syndicate Bank, Chattarpur Branch, New Delhi

Notice be issued to the Judgment Debtor in terms of Order XXI Rule 54 requiring her to remain present before the Joint Registrar for settling the terms of proclamation of sale.

List the matter before the Joint Registrar on 15.09.2010 for fixing the terms for issuance of

proclamation of sale."

3. The JD appeared through counsel before the Joint Registrar (JR) on 22nd December 2010 stating that the JD has already filed a petition under Section 34 of the Act to challenge the Award. The JR noted that since there was no stay of the present proceedings, draft sale proclamation schedule should be filed within four weeks. On the next date, i.e. 25th January 2011, since the JD did not appear, the JR directed notice to issue under Order XXI Rule 54 CPC. One Ms. Kiran Mittal filed EA No.95 of 2011 seeking the setting aside of the order dated 26th August 2010 of the Court to the extent of the attachment of the property at 180-A/3, Forest Lane, Sainik Farms, New Delhi - 110 062. Notice was directed to be issued on the said application by the Court on 7th February 2011. Meanwhile, the JD's petition under Section 34 of the Act was dismissed. The counsel for the DH informed the JR on 23rd May 2011 that the JD had not preferred an appeal against the said dismissal. On 2nd June 2011, the JR passed the following order:

"Affidavit stands already filed to the effect that to the knowledge of the Decree Holder no appeal is pending/preferred against the decision of dismissal of the OMP filed by the Judgment Debtor.

None has appeared for the JD, to settle the terms of sale of proclamation; despite service, for the date already fixed.

Counsel for the Decree Holder presses the application for proclamation of sale and states that he does not want to press the application for consolidation of both the execution petitions. He further prays that let the proclamation of sale by way of Court Auction be passed in the execution petition against which no appeal is pending.

Accordingly, proclamation of sale in respect of property bearing No. A-24, Okhla Industrial Area Phase-I, New Delhi is passed. Let this property be sold by way of Court Auction by the Court Auctioneer on 03.08.2011 at 12.30 PM. Proclamation of sale be issued by the Court Commissioner Sh Rohit Puri, Advocate E-575 A, Greater Kailash-II, New Delhi-49 under his signatures. The fee of the Court Commissioner is fixed at Rs.30,000/- to be paid by the Decree Holder.

The reserve price of the property is fixed at Rs.35 lacs and the 25% of the sale amount be paid at the spot at the time of fall of hammer and announcing of sale of the property. The remaining amount shall be paid within a period of one month from the date of sale of property by the buyer.

Proclamation of sale be effected by way of affixation outside the court premises and at the spot by the Court Commissioner and also by way of beating of drums at the spot. Publication to this effect be also issued in the newspaper - Pioneer (English Edition) and Veer Arjun (Hindi Edition).

Renotify for reporting about the sale on 17th August, 2011."

4. On 17th August 2011 the JR directed a fresh publication to be effected in compliance with the previous order in the newspapers. Later, after correcting the address of the property to read as A-24, Okhla Industrial Area Phase-I, New Delhi, the JR on 30th September 2011 directed that a fresh proclamation of sale be issued in the newspapers and also by the beat of drums on the spot. The auction was conducted on 15th November 2011 at 12.30 pm. On 24th November 2011, the JR noted that the report of the Court Auctioneer had been filed and that the last date for making payment was 15th December 2011.

5. The report of the Court Auctioneer dated 16th November 2011 stated that in all four bidders participated in the auction. Paras 7 and 8 of the said report reads as under:

"7. Mr. Manish Katiyal was the successful bidder with the highest bid of Rs.1.24 crores. That the reserve price was Rs.35,00,000/- (Rupees thirty five lacs only). The auction was opened by Mr. Sunder Kukreja by submitting bid of Rs.50,00,000/- (Rupees fifty lacs only). However, eventually at the time of fall of hammer, announcement of the sale of the property, the highest bid was Rs.1.24 Crores of Mr. Manish Katiyal, S/o Late Sh. S.C. Katiyal, R/o R- 179, Greater Kailash-I, New Delhi. In terms of the order of this Hon'ble Court and proclamation of sale Mr. Manish Katiyal handed over a demand draft bearing No.849128 dated 14.11.2011 for Rs.31,00,000.00 (Rupees thirty one lacs only) drawn on Kotak Mahindra Bank, payable at New Delhi in favour of the Registrar General, Delhi High Court. The said amount represents 25% of the sale amount i.e. Rs.1.24 Crores. The original draft bearing No.849128 dated 14.11.2011 is annexed herewith as Annexure D.

8. Mr. Manish Katiyal was informed by the undersigned that the balance amount is payable by him within one month failing which the amount of Rs.31,00,000.00 (Rupees thirty one lacs only) deposited by him shall stand forfeited. Mr. Manish Katiyal accepted that he is the highest bidder. The undersigned recorded the bids in the site report duly signed by the highest bidder and the undersigned. The original site report is annexed herewith as Annexure E."

6. At the hearing before the JR on 24th November 2011, counsel for

YECPL appeared and stated that he had filed an application on 19th November 2011 for setting aside the auction sale. The present applications were listed before this Court first on 28th November 2011 where notice was directed to be issued. In view of the averment in EA No.668 of 2011 by YECPL that it had purchased the property in question, i.e. No. A-24, Okhla Industrial Area Phase-I, New Delhi from the original allottee, M/s. Azad Engineering Works, by a registered sale deed dated 22nd December 1992, the Registry was asked to inform the Court whether prior to the proclamation of sale, any inspection was undertaken to ascertain whether it was occupied.

7. YECPL claimed that the property in question had been leased by it to M/s. Ambica Research and Development Private Limited (ARDPL) for a period of three years commencing from 10th February 2006. It was claimed that the Directors of YECPL 'orally talked to the management" of ARDPL and persuaded it to vacate the property in question "at the earliest". YECPL claimed that ARDPL had written to it on 16th March 2011 stating that they would vacate the premises on 15th April 2011. It is claimed that on 15th April 2011 ARDPL handed over the premises to YECPL which was thereafter retained by YECPPL. It is stated that YECPL thereafter decided to renovate the premises for renting it out again. On 15th November 2011 when the staff of YECPL went to the property in question for collecting the old files, "then suddenly the Local Commissioner appointed by this Court came there along with some persons with local police and informed the staff of the applicant company about the auction of the said premises as per the orders of the Hon'ble High Court of Delhi at New Delhi and also advised them not to interfere in the auction proceedings." It is claimed that thereafter the Court file was inspected

by the lawyer and the present applications were filed.

8. Meanwhile on 3rd December 2011, Mr. Deepak Khadaria, learned counsel for the auction purchaser, Mr. Manish Katiyal, wrote a letter to the Registrar General of this Court enclosing a pay order for the balance sale amount of Rs.93 lakhs and requested that the amount be kept by way of fixed deposit. On coming to know of the applications filed by YECPL, the auction purchaser filed a reply thereto along with an application EA No. 5 of 2012 on 2nd January 2012 praying for the reliefs as noted above.

9. In his reply the auction purchaser stated that he had paid the entire amount of Rs. 1.24 crores for the property in question after being the successful bidder in the auction sale. It was pointed out by him that the JD Ms. Anita Jain, along with her husband, Mr. Vijay Kumar Sharma, in connivance with one Mr. Ravinder Kumar Mishra had mislead this Court and had also committed perjury by filing false affidavits. It is stated that Mr. Vijay Kumar Sharma is the husband of Ms. Anita Jain and that they were the owners of YECPL who were conducting business from the property in question. The annual returns filed by YECPL in Form-20B under the Companies Act, 1956 showed that in 2005, Mr. Vijay Kumar Sharma held 25.30% of the total shareholding with 40,010 equity shares as on 29th September, 2005. From the Form-20B filed by YECPL in 2008, it was revealed that Mr. Vijay Kumar Sharma and his relatives held 49.4% shares. In 2009, Mr. Vijay Kumar Sharma held 99.3% of the total shareholding, whereas Mr. Ravinder Kumar Mishra held 0.70% of the total shareholding. This continued in 2010 as well. It was, accordingly, prayed that the corporate veil of YECPL should be lifted in order to

determine the real character of persons conducting its affairs. It was stated by the auction purchaser in his reply that Mr. Ravinder Kumar Mishra had committed perjury by swearing to an affidavit on behalf of YECPL in support of the present application in which false statements were made concerning the purported request made by YECPL to ARDPL to vacate the premises. The further details given by the auction purchaser in reply were that YECPL was incorporated in 1984 with 40% equity shares and four Directors. Later, it appears that Mr. Vijay Kumar Sharma came to acquire the majority shares of YECPL. It is pointed out that the lease agreement filed by YECPL was unregistered. The lease deed was signed by one Ms. Indu K. Wattal on behalf of ARDPL and not by Ms. Anita Jain. It was urged that the lease deed was a fabricated document that would show tenancy in favour of ARDPL when, in fact, Mr. Vijay Kumar Sharma was the husband of Ms. Anita Jain and was acting in connivance to defeat the decree and also to get the auction sale, which has been validly conducted, set aside through fraudulent means. It was this property which was always under the control of Mr. Vijay Kumar Sharma, the husband of the JD, and this was known to him and the JD and Mr. Ravinder Kumar Mishra, who filed the affidavit in support of the present EA No.668 of 2011.

10. It is also pointed out by the auction purchaser in the application EA No. 5 of 2012, in addition to the above facts, that the premises in question was given on rent by YECPL to ARDPL at Rs.9,000 per month, whereas the extent of the premises was 7,000 per sq. ft. and market rent was at least Rs.1,40,000 per month. Even if a lesser area were to be taken i.e., less than 65% to 70% of the total area, the market rent would still not be less than Rs.1 lakh per month. It was

contended that the said lease deed produced by YECPL was a manufactured document.

11. In the rejoinder to the reply filed in EA No.668 of 2011, it is submitted by YECPL that the JD was a tenant in the premises and handed over possession to YECPL, as earlier contended. It is stated that the JD had no shareholding or any right, title or interest which would clothe her with the title to the premises in question.Therefore, the auction of a tenanted premises owned by a different private limited company due to misrepresentation by the DH is bad in law and is, therefore, liable to be set aside.

12. It is further submitted on behalf of YECPL that in the instant case the transfer of property by way of auction is by the order of the Court, which means that the transfer would be by operation of law. Consequently, the auction purchaser could not get a better title in the property in question than that which was possessed by the JD.

13. It was admitted that the JD is the wife of Mr. Vijay Kumar Sharma but it is denied that she was acting in connivance with him and Mr. Ravinder Kumar Mishra. It is stated that the Auction Purchaser had not placed on record even a single document to show that the JD is the shareholder or had any stake in YECPL. It is stated that the shareholding pattern in YECPL has nothing to do with the filing of the affidavit by Mr. Ravinder Kumar Mishra in the present case. In any event, the property sold by way of auction was not owned by the husband of the JD but by YECPL and, therefore, could not be sold by way of auction. It is submitted that the plea of the auction purchaser that the corporate veil of YECPL should be lifted is misconceived.

Further, neither YECPL nor Mr. Vijay Kumar Sharma were parties to the execution proceedings.

14. On 20th January 2012, the auction purchaser filed a set of documents which included a copy of the annual return of YECPL for the year 2004-05, an order dated 4th November 2011 passed by this Court in Contempt Petition No.269 of 1998 and the copy of a newspaper report dated 16th January 2012 appearing in the Times of India, New Delhi, about the conduct of Mr. Vijay Kumar Sharma. On 2nd February 2012 the auction purchaser also filed extracts from an application in C.A. No. 867 of 2011 in C.P No. 265/1998, 266/1998, 267/1998 and 385/1998, by the Official Liquidator (OL) based on "a serious fraud investigation report."

15. Mr. Sudhir Nandrajog, Senior Advocate, appearing for the applicant YECPL, at the outset, submits that the present application ought to have been filed under Order XXI rule 97 but, in fact, has been filed under Order XXI Rule 90. However, despite several hearings, the applicant has not sought to amend the caption of the application. This Court does not propose to permit the applicant to do so at this stage. In any event, for the reasons explained hereinafter, this Court finds that the application is an abuse of process of law and deserves to be dismissed with exemplary costs.

16. Mr. Nandrajog submits that the JD was not a Director of YECPL. In any event, a shareholder does not become the owner of the assets of the company which was a separate legal entity. The property in question admittedly stands in the name of YECPL and cannot be sold to realise the debts of any one shareholder. In any event, the property

of the husband of the JD cannot be sold to satisfy the debt of the wife. It is stated that it is not pleaded anywhere in the execution petition that the JD has used YECPL as a front for availing of the benefits which form the subject matter of the arbitral Award and, therefore, there is no question of lifting the corporate veil of YECPL. Likewise, since the JD was only an individual, there is no question of enforcing the liability of the JD against a company which is not even a party either to the Award or the execution proceedings.

17. In reply it is pointed out by Mr. Deepak Khadaria, learned counsel for the auction purchaser, that the annual returns of YECPL clearly showed that at one stage Ms. Anita Jain, was indeed a shareholder and her shares were transferred to her husband. YECPL had filed the present application through Mr. Ravinder Kumar Mishra, a Director of YECPL holding 0.70% shares and who obviously knew that the remaining shares were all held by Mr. Vijay Kumar Sharma, husband of the JD. YECPL was a company totally owned by the husband of the JD. YECPL was merely a front and its owner Mr. Vijay Kumar Sharma controlled the affairs of not only of YECPL but of ARDPL as well. An employee of YECPL was present at the time of the auction. At no point, was any objection raised. The sale proclamation was widely announced and at least four bidders participated. The present application has been filed, after completion of the auction sale, only to defeat the decree. Reliance is placed on the averments in E.A No. 95/2011, filed by Ms. Kiran Mittal which pointed to the conduct of Mr. Vijay Kumar Sharma. Mr. Deepak Khadaria accordingly submitted that the sale of the property in question should be confirmed in favour of the auction purchaser.

18. Under Order XXI Rule 90 "where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it." Under Rule 90(2) "No sale should be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reasons of such irregularity or fraud." In the Explanation, it is stated that "the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule." In Saheb Khan v. Mohd. Yusufuddin AIR 2006 SC 1871, while explaining the scope of the above provision, the Supreme Court held that "a charge of fraud or material irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars. Bald allegations would not do. The facts must be established which could reasonably sustain such a charge."

19. In the present case, the procedural aspect of the conduct of the auction sale has not been shown to be defective. The sale proclamation was widely publicized. Four bids received at the time of conduct of the auction by the Court Commissioner. Also, it is not shown that either the reserve price or the bid received was inadequate. The bid received from the auction purchaser was for Rs.1.24 crores which was much higher than the reserve price of Rs.35 lakhs. YECPL has not been able to show any irregularity in the conduct of the auction sale. It has also been unable to demonstrate any fraud having been committed in the auction sale. On the other hand, as will be

discussed hereafter the facts that have emerged show that it is the applicant YECPL which has not approached this Court with clean hands and is seeking to have the auction sale set aside on wholly untenable grounds.

20. It is admitted by YECPL in the rejoinder to the reply filed by the auction purchaser that the JD Ms. Anita Jain is indeed the wife of Mr. Vijay Kumar Sharma who holds 99.3% shares in YECPL. From the Form-20B of YECPL for the year 2004-05 it is evident that Ms. Anita Jain, who is described in the said form as Ms. Anita Sharma, held 38.9% shares of YECPL. The said shares were transferred to her by Mr. Devender Kumar Aggarwal. The husband of Ms. Anita Sharma was shown as Mr. Vijay Kumar Sharma. Mr. Devender Aggarwal also transferred 38810 shares to Vijay Kumar Sharma. A copy of the annual return of YECPL for the year 2008 shows that Mr. Vijay Kumar Sharma was holding 41,010 shares. Mr. Ravinder Kumar Mishra is shown as a Director of YECPL and Mr. Vijay Kumar Sharma its Managing Director. In the return filed in 2010 in the column titled "details of Directors, Managing Director" as on the date of Annual General Meeting (AGM) Mr. Vijay Kumar Sharma is described as a Director holding 157,005 shares constituting 99.3% and Mr. Ravinder Kumar Mishra holding 1,100 shares constituting 0.70%. There is no manner of doubt, therefore, that the person in total control of YECPL and therefore its properties and assets is Mr. Vijay Kumar Sharma, the husband of the JD.

21. Mr. Vijay Kumar Sharma, also known as Mr. V.K. Sharma, has been involved in several instances of fraud and cheating, as is clear

from an application filed in this Court in CP No.265 of 1998 by the OL based on reports of the Serious Fraud Investigation Office ('SFIO'), an investigating agency of the central government conducting inquiry into the affairs of JVG Group of Companies (in liquidation). In the said application, it is stated that M/s. JVG Finance Limited (in liquidation) had issued cheques from its banks for issuance of drafts, pay orders in 1995 and 1996 in the name of Yusuf Engineering Private Limited, Mr. Yusuf Hafeez, Mr. Abdul Hafeez and Mrs. Noorsabha. The investigation by the SFIO further revealed that Ms. Veena Sharma, the (first) wife of Mr. V.K. Sharma (the ex- Chairman and Managing Director of the JVG Group of Companies) entered into an agreement to sell on behalf of JVG Publication with Yusuf Engineering Private Limited through Mr. Abdul Hafeez, to purchase all shares of Directors of the said company "owning building (constructed on a plot of land measuring 392.5 sq. yds.) bearing No. A-24, Okhla Industrial Area Phase-I, New Delhi-20." It is mentioned in the report of SFIO that the agreement was executed on 5th January 1996 and the total sale consideration settled was Rs.34 lacs. When this is seen along with the documents enclosed by YECPL with its application a clear picture emerges. A sale deed was executed on 27th December 1992 in favour of YECPL by M/s. Azad Engineering Works through Mr. Abdul Hafeez, son of Mr. Abdul Latif, and property measuring 392.5 sq. yds. at A-24, Okhla Industrial Area Phase-I, New Delhi was transferred to YECPL. Then progressively shares in YECPL were purchased by Mr.Vinod Kumar Sharma and his wife Ms. Anita Jain and ultimately Mr.Vinod Kumar Sharma held 99.3% shares of YECPL. Thereafter the so-called lease deed (unregistered) was entered into between YECPL and ARDPL through its authorized signatory on 10th February 2006 in respect of the

property in question.

22. The SFIO report, in fact, states that Mr. Abdul Hafeez and other Directors had appeared before the Inspectors on 21st May 2008 stated on oath that they have sold their company, YECPL to JVG Group of Companies through their Directors. Para 12.3 to 12.7 of the application filed by the OL, which are relevant for the purpose of present application, read as under:

"12.3) That the payments were received from M/s JVG Finance Limited (In Liquidation) and the shares were transferred along with the property as mentioned above. The shares were transferred in the name of Sh. S.P. Sharma, Smt. Veena Sharma, Sh. Vinay Kumar Sharma and there persons became directors in this company.

12.4) That the investigation of SFIO further reveals that the agreement between M/s Yusuf Engineering Co. Pvt. Ltd. and M/s JVG Publication was only for name sake and actually the relatives of Sh. V.K. Sharma, Ex-CMD of JVG Finance Limited (In Liquidation) purchased the said property, which is in the name of M/s Yusuf Engg. Co. Pvt. Ltd. with the funds of JVG Finance Limited (in liquidation).

12.5) That the report of SFIO reveals that after transfer of shares the persons who were the directors of M/s. Yusuf Engineering Co. Pvt. Limited were close associates/ex- employees of Sh V.K. Sharma, Ex-CMD of JVG Group of Companies and one Sh. Ravinder Kumar Mishra, Director of M/s. Yusuf Engineering Pvt. Ltd stated on oath from the SFIO on 1st May 2008 is working as caretaker in guest house of Sh. V.K. Sharma situated at 74/5, Chhattarpur, New Delhi and he has been signing various papers, including bank account opening forms, blank cheque books and other company related documents. He has no knowledge about the company and its business.

12.6) Smt. Veena Sharma w/o Sh. Vijay Kumar Sharma appeared before the Inspector on 18th June 2008. She

stated on oath that she has no knowledge about the transactions. She signed papers, cheque books and other documents as per advice of her husband, Sh. V.K. Sharma. The above said transactions have not been disclosed by the Ex-Management of the aforesaid companies of JVG Group either to Official Liquidator or to this Court.

12.7) That on 5th June 1998 the banker of JVG Group company, M/s. JVG Finance Limited was put under liquidation on a petition moved by RBI. A number of cases of misappropriation, siphoning of funds have been registered against Sh. V.K. Sharma and relatives/associates. To hide this property/transaction and to mislead the investigation agencies and the official liquidator attached with Delhi High Court Sh. V.K. Sharma deliberately kept the management of Yusuf Engineering Pvt. Ltd. in the hands of his close relatives. Subsequently, he transferred management/control of this company from his relatives to his close/faithful associates/employees, such as D.K. Agarwal, Ravinder Kumar Mishra etc. During the year 2004-05, he again transferred the management/control of Yusuf Engg. Pvt. Ltd in his own name and his new wife's name i.e., Smt. Anita Sharma as is evident from the annual return of M/s. Yusuf Engg. Pvt. Ltd. made upto 30th September 2005 filed with ROC, Delhi. Therefore, he is illegally occupying/enjoying the benefits of property No. A-24, Okhla Industrial Area, Phase-I, New Delhi, which was solely acquired from out of funds of JVG Finance Limited (in liquidation)."

23. The matter has assumed serious proportions with Mr. Vijay Kumar Sharma being involved in a large number of cases of fraud and cheating and being on the run. He has been proclaimed an absconder since 2007. A plea by him in a separate petition for quashing of an FIR against him was dismissed by this Court with costs of Rs.5 lakh.

24. It is in the above background that the plea raised by YECPL in the present application has to be appreciated. YECPL is one of the

many devices adopted by Mr.Vinod Kumar Sharma to defraud the public. He has also involved his family members as is evident from the SFIO report. The person in actual control of YECPL is Mr. Vijay Kumar Sharma, who is none other than the husband of the JD, Ms. Anita Jain. Clearly the story about YECPL having given the premises in question on rent to ARDPL is only a smoke screen to conceal the real picture. YECPL's attempt through the present application to defeat the decree arising out of the Award in question should fail. It is only to help the JD avoid meeting the liability thereunder.

25. There can be no manner of doubt that YECPL has suppressed several material facts in its application, the most significant of which is that Mr. Vijay Kumar Sharma, who holds 99.3% of YECPL is, in fact, husband of the JD. YECPL's application is supported by the affidavit of Mr. Ravinder Kumar Mishra who holds only 0.70% of the shares of YECPL while being fully in the know of who owns the remaining shares and yet not revealing that fact. This brazen conduct of YECPL deserves the severest condemnation. It has resulted in the abuse of the process of the Court and delayed the confirmation of the auction sale in favour of the auction purchaser. It is an attempt to overreach the Court and frustrate the execution of the Award in question.

26. For the aforementioned reasons, E.A. Nos. 668 and 669 of 2011 are dismissed with costs of Rs.1 lakh which will be paid by YECPL to the Delhi High Court Bar Association Social Security Welfare Fund within two weeks.

27. Consequently, E.A. No.5 of 2012 is allowed and the auction sale

in favour of the auction purchaser Mr. Manish Katyal is confirmed. A sale certificate in accordance with law is directed to be issued in his favour forthwith. Mr. Rohit Puri, Advocate, the Court Commissioner appointed by the order dated 2nd June 2011 is directed to take possession of the property in question i.e. A-24, Okhla Industrial Area Phase-I, New Delhi from YECPL or whichever person or entity it is presently in possession of and deliver it to the auction purchaser within a period of two weeks from today. The fee of the Court Commissioner is fixed at Rs. 30,000 which will be paid to him by the auction purchaser within the same period. It will be open to the Court Commissioner to break open the locks if any and also seek the assistance of the local Police in carrying out the above directions.

EX.P. 135/2010

28. List on 21st May 2012.

29. The Registry is directed to continue to keep the amount deposited by the auction purchaser in a fixed deposit till further orders by this Court.

S. MURALIDHAR, J.

March 2, 2012 s.pal