Delhi High Court
National Cooperative Consumer ... vs Kidar Nath Babbar on 21 April, 2015
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: April 21, 2015
+ Ex.P.40/2011
NATIONAL COOPERATIVE CONSUMER FEDERATION OF
INDIA LTD
..... Decree Holder
Through: Mr.Elgin Matt John, Adv.
versus
KIDAR NATH BABBAR
..... Judgement Debtor
Through: Mr.Bhagbati Prasad Padhy, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V.KAMESWAR RAO, J. (ORAL)
Ex.P. No. 40/2011, EA (OS) 543/2014 (application on behalf of the
decree holder under Order 21 Rule 64 read alongwith Secion 151 of
CPC) & EA(OS) 303/2015 (application on behalf of the judgement
debtor under Order 21 Rule 55 read with Section 151 of CPC for
removal of attachment)
The present execution petition has been filed seeking execution of the
Award dated September 08, 2010. This Court had vide its order dated
November 08, 2013 issued warrant of attachment vis-a-vis property No. A-
211, Okhla Industrial Area, Phase-I, New Delhi. Thereafter the decree
holder has filed EA(OS) 543/2014 for effecting the sale of aforesaid
property. This Court on September 26, 2014 directed proclamation of sale to
be issued vis-a-vis the said property. The sale of the said property was to be
effected by public auction. The Registrar (Original) has issued the sale
proclamation on March 16, 2015 in terms of the following schedule:-
S.No. Date & Time
1. Date of publication of On or before
proclamation in English 23.04.2015
Newspaper "Statesman" & in
Hindi "Dainik Jagran".
2. Proclamation to be displayed On or before
on the notice board of the 23.04.2015
District Court as well as
Delhi High Court.
3. Proclamation be also made On or before
at the property in question at 23.04.2015
the conspicuous place in the between 10:00
presence of witnesses of AM to 1:00 PM
locality and by beat of drums.
4. Date of Sale (by public 06.05.2015
auction by Court Auctioneer) between 10:00
AM to 1:00 PM
5. The date of return of On or before
proclamation 13.05.2015
6. Filing of report On or before
20.05.2015
2. After the order was passed by the Registrar (Original) issuing sale
proclamation, the judgment debtor has filed an application being EA(OS)
303/2015 under Order 21 Rule 55 read with Section 151 CPC for removal of
attachment on the property No.A-211, Okhla Industrial Area, Phase-I, New
Delhi.
3. The said application is premised on the fact that the entire decree has
been satisfied. The judgment debtor has also averred in the application that it
had paid between May 03, 2013 to January 20, 2015 an amount of
Rs.10,90,017/- and an amount of Rs.30,16,816/- to the judgment debtor
which included a TDS amount of Rs.3,01,681/-.
4. This Court had on April 15, 2015 recorded the factum of receipt in the
following manner:
1. Cheque No. 556405 dated 13.04.2015 issued on Indian Overseas
Bank
2. Cheque No. 500899 dated 13.04.2015 issued on ICICI Bank.
5. Learned counsel appearing for the decree holder has submitted that an
error has crept in the order dated April 15, 2015 inasmuch the payment has
been made through two demand drafts; (1) Rs.27,15,134/- vide draft
No.96556407 dated March 25, 2015 of Indian Overseas Bank, Darya Ganj,
Delhi and (2) D.D. No.500899 dated April 13, 2015 of ICICI Bank, Branch
Code:716 for an amount of Rs.9,81,015 totalling to Rs.36,96,149/-. The
amount is after deduction of 10% as TDS on April 13, 2015 in settlement of
the awarded amount of Rs.41,06,883/-. He states that the aforesaid aspect
has been clarified in the affidavit filed by the decree holder pursuant to the
order of this Court dated April 15, 2015.
6. The affidavit filed on April 15, 2015 vide filing No.191631 is not on
record. The learned counsel for decree holder has handed over to me a
photocopy of the said affidavit. The same has been taken on record. The
Registry to upload the said affidavit on the computer.
7. The Decree Holder has also stated that it has been decided to accept
the demand drafts totalling to Rs.36,96,149/- in full and final satisfaction of
the awarded/decretal amount of Rs.41,06,883/-.
8. In view of this stand of the decree holder, the learned counsel for the
decree holder concedes that execution petition has become infructuous.
9. There is yet another issue which needs to be decided is the claim of
judgment debtor that the amount of Rs.10,90,017/- need to be
adjusted/refunded back to the judgment debtor as the said amount was in
satisfaction of the decree/award dated September 08, 2010. This claim of the
judgment debtor has been contested by the learned counsel for the decree
holder. He states that on earlier occasions also the decree holder had raised
such pleas which have not been accepted by this Court. He would further
state that the amount of Rs.10,90,017/- was paid for the eastern portion of
the property and cannot be adjusted with the western portion of the property
with which the execution is related to.
10. Having heard the learned counsel for the parties, I note that in
EA(OS) 303/2015 the judgment debtor has prayed for the following reliefs:-
"(i) To remove the property bearing bearing A-211, Okhla
Industrial Area, Phase-I from the attachment;
(ii) Direct to withdraw the on going proceeding towards of
auction sale of the said property;
(iii) Close the execution petition as the decree has been
satisfied;
(iv) Pass any other order/direction in the facts and
circumstances of the present case."
11. A perusal of the reliefs would reveal that the judgment debtor has not
even prayed for the adjustment of Rs.10,90,017/- against the decretal
amount. Such a claim cannot be even considered.
12. Further, I note from the documents annexed along with the
application does not show that the payments made by the judgment debtor
were in satisfaction of the award dated September 08, 2010. Suffice to state,
a procedure has been laid down under Order 21 Rule 1 CPC for making
payment in satisfaction of a decree. There is nothing on record to suggest
that the payments so made as referred to by the judgment debtor in this
application were against the decree/award dated September 08, 2010.
Moreover, similar pleas were rejected vide order dated July 01, 2013 and
order dated August 05, 2014. The claim of the judgment debtor for
adjustment/refund is liable to be rejected.
13. As the decree holder has filed an affidavit stating that the
decree/award has been satisfied, the Ex.P. 40/2011 has become infructuous.
Accordingly, the order of attachment dated November 08, 2013 and sale
proclamation issued by the Registrar (Original) on March 16, 2015 are
recalled.
14. EA(OS) 543/2014 & 303/2015 are disposed as being infructuous.
V. KAMESWAR RAO, J
APRIL 21, 2015/km
