M/S. Zillion Infraprojects Pvt. ... vs Mather & Platt Pump Systems Ltd. & ...
2014 Latest Caselaw 4495 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Ex. F.A. No.18/2011

%                                                 16th September, 2014

M/S. ZILLION INFRAPROJECTS PVT. LTD.           ......Appellant
                   Through: Ms. Swati Bhushan Sharma,
                             Advocate.



                          VERSUS


MATHER & PLATT PUMP SYSTEMS LTD. & ANR. ...... Respondents

Through: None.

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 21.3.2011 by which the executing court has upheld the

objections of a company M/s Mather and Platt Pumps Ltd. and held that no

execution can be made of the judgment and decree dated 29.5.2008 against

the objector company which is not the judgment-debtor company.

2. The facts of the case are that the petitioner/decree

holder/plaintiff obtained a decree against M/s Mather and Platt (India) Ltd.

By virtue of a scheme of arrangement sanctioned by the Bombay High Court

on 8.4.2001 in Company Petition No. 382/2000, two separate divisions of

the JD company came to be vested in two separate companies, namely M/s

Veedip Financial Services Pvt. Ltd. and M/s Datum Trading Private Ltd.

The name of Datum Trading Pvt. Ltd. subsequently got changed to M/s

Mather and Platt Pumps Ltd. (objector) and which is clear from the

certificate of the Registrar of Companies, Maharashtra, Pune dated

5.10.2001.

3. Since the judgment and decree dated 29.5.2008 is against the

judgment debtor- M/s Mather and Platt (India) Ltd., the decree can only be

executed against the assets of the JD-company M/s Mather and Platt (India)

Ltd. If the decree holder wants the decree to be executed against a totally

separate entity, namely M/s Mather and Platt Pumps Ltd., then it was upon

the appellant/decree holder company to show that M/s Mather and Platt

(India) Ltd. changed its name to M/s Mather and Platt Pumps Ltd. However,

as per the record, M/s Mather and Platt (India) Ltd. is/was a separate

company from M/s. Datum Trading Pvt. Ltd. and whose name has been

changed to M/s Mather and Platt Pumps Ltd. Merely because some assets

and liabilities of the judgment debtor company may have been transferred to

the company M/s Mather and Platt Pumps Ltd., the same cannot mean that

instead of execution being against the judgment debtor-company M/s Mather

and Platt (India) Ltd, the decree can be executed against M/s Datum Trading

Pvt. Ltd. now called as M/s Mather and Platt Pumps Ltd.

4. In fact, as per the scheme of arrangement sanctioned by the

Bombay High Court in Company Petition no.382/2000 by the order dated

8.4.2001, the Fire and Security Engineering division of the judgment debtor-

company and with whom the decree holder-company had dealing with, was

transferred to the company M/s. Veedip Financial Services Pvt. Ltd. Either

the petitioner/decree holder pleads bindingness of the scheme of

arrangement or it does not. If it accepts the scheme of arrangement, then the

petitioner/decree holder must execute the judgment and decree only against

M/s. Veedip Financial Services Pvt. Ltd. I may note that in para 3 of the

impugned order the executing court records that the petitioner/decree holder

has exercised its option pursuant to the scheme of arrangement, and

therefore the petitioner will be bound by the option being exercised and

which appears to be, to recover the amount due from M/s. Veedip Financial

Services Pvt. Ltd. If the petitioner/decree holder does not accept the

scheme of arrangement; and which of course cannot be in law because a

scheme of arrangement is statutorily binding on all creditors including the

petitioner/decree holder; then, the petitioner/decree holder must execute the

judgment and decree against M/s Mather and Platt (India) Ltd. but

petitioner/decree holder as per its own convenience is not seeking execution

against M/s Mather and Platt (India) Ltd. but is seeking execution against a

totally separate company, namely M/s Mather and Platt Pumps Ltd. and

which company is admittedly not the judgment debtor-company and nor is a

company to which as per the scheme of arrangement by the Bombay High

Court, the assets and liabilities pertaining to the Fire and Security

Engineering division of the judgment debtor-company was transferred to.

5. In law a decree can only be against a judgment debtor and if the

execution is sought against some other entity/company/person other than the

judgment debtor, it was upon the decree holder to show as to how the rights

and liabilities of the judgment debtor-company has been taken over by M/s

Mather and Platt Pumps Ltd., but, nothing has been shown to this Court or

was filed before the executing court as to the taking over of the liability of

the judgment debtor-company -M/s Mather and Platt (India) Ltd. by M/s

Mather and Platt Pumps Ltd. (originally called M/s Datum Trading Pvt.

Ltd).

6. In view of the above, though this appeal is dismissed but decree

holder in accordance with law can execute the impugned judgment and

decree dated 29.5.2008 against the judgment debtor company or any

successor company, in accordance with law.

VALMIKI J. MEHTA, J SEPTEMBER 16, 2014 Ne