Delhi High Court

Sh.Vijay Kumar Jain (Deceased) ... vs M/S Jainsons Jewal Exports on 13 October, 2014

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
                             Ex.F.A.No.14/2013

%                                                      13th October, 2014

SH.VIJAY KUMAR JAIN (DECEASED) THR LRS         ......Appellants
                  Through: Ms.Neha Gupta, Advocate.

                          VERSUS

M/S JAINSONS JEWAL EXPORTS                                      ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This execution first appeal impugns the order of the executing court

dated 02.2.2013 which has dismissed the execution petition filed under

Order XXI Rule 32 of the Code of Civil Procedure, 1908 (CPC) by the

appellants herein, and who are/were the legal heirs of the defendant/counter-

claimants.

2. The suit was filed by the respondent herein for recovery of Rs.2 lacs

against Sh.Vijay Kumar Jain, and whose legal heirs are the

appellants/counter-claimants.

3. In the suit, issues were framed with respect to recovery of money

claimed by the respondent/plaintiff and also with respect to entitlement of

the counter-claimant Sh.Vijay Kumar Jain and his legal heirs to the title

deeds of the property bearing no.22/5, Shakti Nagar, Delhi, and which title

deeds were submitted by Sh.Vijay Kumar Jain as security with MMTC on

the request of the present respondent/plaintiff.

4. Paras 8, 9 & 10 of the impugned order dated 02.2.2013 show the

issues which were framed, how they were disposed of by the judgment in the

suit, and the operative para of the judgment and decree dated 31.8.2009, and

which paras read as under:-

" 8 In the suit issues No.2, 5 and 6 were framed to the following effect:

"ii. Whether on return of the said amount along with interest the plaintiff would arrange the return of the title deeds of the property bearing no.22/5, Shakti Nagar, Delhi submitted by late Sh.Vijay Kumar Jain as surety with the MMTC on the request of the plaintiff in the year 1992-1993? (OPP) v. Whether the plaintiff firm gave Rs.2 Lakhs as security amount to late Sh.Vijay Kumar Jain as has been claimed by the defendant in this case? (OPD) vi. Whether the counter claim filed by the defendant in this case is liable to be decreed in their favour? OPD"

9. These three issues were taken up and decided together. The court specifically observed in para 22 o the judgment as follows: "22. From the said evidence both the defendants have categorically admitted that the property was kept as security for the plaintiff with the MMTC by the deceased in the year 1990 or 1991. The defendants failed to assail the NOC proved on the record on behalf of the plaintiff which is Ex.PW2/1 nor the defendants requested for impleading the MMTC as the party to the suit or to establish their counter claim. Moreover, the cheque of the loan amount was received by the deceased on 7.8.1994, much later than the transaction of keeping his property as security with the MMTC. The time gap between the said two transactions goes to establish that the taking of Rs.2 lacs by the deceased in the year 1994 had nothing to do with the keeping of his property as security with the MMTC on behalf of the plaintiff. The defendants have miserably failed to summon the MMTC to prove the documents or nature of transaction of the security given by the deceased to the MMTC so as to claim the said amount of Rs.2 lacs taken by the deceased as security for the transaction carried out by the deceased with the MMTC. The onus to prove the issue no.2 was on the plaintiff whereas onus to prove the issues no.5 and 6 was on the defendants. In fact, it was the onus on the defendants which was to be discharged by them in order to claim the documents back from the plaintiff after release from the MMTC and thereafter to pay the said Rs.2 lacs and I am of the considered opinion that the defendants have completely failed to discharge their onus in this regard. Accordingly, issues no.5 and 6 are decided against the defendants and in favour of the plaintiff and accordingly the counter claim of the defendants is hereby dismissed and subject to the finding on the other issues no.1, 3 and 4, the issue no.2 is decided in favour of the plaintiff and against the defendants and the plaintiff is held liable to return the documents of the property of the deceased to the defendants, kept as security with the MMTC after getting the

same released from the MMTC, after receiving back the said loan amount from the defendants."

10. The judgment also gives reliefs as follows:

" RELIEF

20. In view of my finding on issues no.1 and 3 above, the plaintiff is held entitled to a decree of a sum of Rs.2 lacs along with an interest @ 60% p.a w.e.f. 7.8.1994 to 1.7.1997 and @ 9% p.a. w.e.f. 2.7.1997 till realization along with the cost of the suit and in view of my finding on issues no.2, 5 and 6, the defendants are held entitled to receive back the document of the property after release and valid discharge by the MMTC from the plaintiff after the defendants making payment of the said decreed amount to the plaintiff. Let the decree-sheet be prepared accordingly. File be consigned to Record Room."

5. In spite of the categorical operative para of the judgment dated

31.8.2009, and which directed the return of the title deeds by the

respondent/plaintiff deposited with the MMTC, on the appellants paying

back the entire decretal amount claimed in the suit, the executing court has

dismissed the execution petition by observing that the decree cannot be

executed allegedly because the title documents are not in possession of

Sh.Lalit Kumar Jain, partner of the respondent/plaintiff, but the same are

with MMTC, by making the following observations in para 15 of the

impugned judgment dated 2.2.2013:-

" When Mr.Lalit Kumar Jain is not in possession of the documents of the property which are kept as security with MMTC Mr.Lalit Jain cannot be put in Civil Imprisonment. The documents were deposited in some litigation with MMTC and Mr.Lait Jain cannot be expected to return the documents of the property. The decree to this extent is accordingly held to be un-executable."

6. In my opinion, the executing court has committed a fundamental error

because the operative part of the judgment which has been reproduced above

shows that when the suit of the respondent/plaintiff for recovery was

decreed, simultaneously a judgment and decree was also passed by the civil

court that the appellants herein, and who are the legal heirs of Sh.Vijay

Kumar Jain, will be entitled to receive back the title documents of the

property on the payment being made to the respondent/plaintiff and as

decreed by the same operative para of the judgment dated 31.8.2009. Once

the appellants have made the payment of the decreed amount in terms of the

operative para of the judgment and decree dated 31.8.2009, the

respondent/plaintiff was liable to return back the title deeds.

7. In view of the above, the impugned order dated 02.2.2013 is set aside