Seema Swami vs Ihhr Hospitality Pvt. Ltd
2015 Latest Caselaw 755 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment Reserved on: 21st January, 2015
                            Judgment Delivered on: 28th January, 2015

+                         FAO(OS) 34/2015

SEEMA SWAMI                                                ....Appellant

                                versus

IHHR HOSPITALITY PVT. LTD                                ....Respondent

Advocates who appeared in this case:
For the Appellants:       Mr Anupam Srivastava with Mr Tarun Bansal and
                          Ms Sharmishtha Ghosh, Advocates.
For the Respondent:       Mr Vineet Jhanji and Mr Imran Moulaey,
                          Advocates.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                             JUDGMENT

SANJEEV SACHDEVA, J.

1. The Appellant (Defendant No. 1 in the Suit) has impugned the

order dated 24.11.2014 passed by the learned Single Judge in IA

No.9467/2012 under Order XXXVIII read with Section 151 of the

Code of Civil Procedure, 1908, filed by the Respondent (Plaintiff in

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the Suit) whereby the Appellant has been restrained from

recovering/receiving the monthly rent and the maintenance charges

from the tenant with respect to the premises bearing Flat No.402,

situated at Block-B2, 4th Floor, Uniworld City West, Sector 30 & 41,

Gurgaon, Haryana (hereinafter referred to as the said property) and

has been further directed to deposit the said rent received from the

tenant with the Registrar General of this Court till the decision of the

Suit.

2. The Respondent (Plaintiff) has filed the Suit, which is pending

before the learned Single Judge, wherein the Defendant has sought

amongst others, a decree for recovery of Rs.35,53,52,077.10 and a

declaration that the assets and investments in cash deposits etc., the

subject matter of the Suit, are the properties of the Plaintiff.

3. The Suit of the Respondent (Plaintiff) is based on the premise

that the husband of the Appellant (Defendant No.1) namely late

Manoj Kumar Swami acting in collusion and in conspiracy with the

Defendants in the Suit defrauded the Plaintiff by forging and

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fabricating documents and by using the forged documents made

unauthorized and fraudulent debits to the Plaintiff's bank accounts

maintained with the Defendant Nos. 32 & 33 and utilized the fund so

withdrawn to acquire the assets that are the subject matter of the Suit.

One of the assets, that is subject matter of the Suit, is the above said

property at Uniworld City.

4. It is an admitted position that by order dated 15.07.2011, a

Division Bench of this Court restrained the Defendant Nos. 1 to 8

from alienating, dealing with the assets which were the subject matter

of the Suit including the said property.

5. The Respondent (Plaintiff) filed the application (I.A. 9467/2012)

under Order XXXVIII read with Section 151 CPC contending that the

said property has been acquired by the Appellant/Defendant No. 1

jointly with her husband from the funds illegally withdrawn from the

bank account of the Respondent (Plaintiff) for a total consideration of

Rs. 69,15,350/-. It is contended in the application that the said

property has been rented out by the Appellant (Respondent No.1) and

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the Appellant was receiving a monthly rent of Rs.50,000/- per month

besides maintenance and furnishing charges of Rs.20,000/- per month.

The monthly rent was increased to Rs.55,000/- per month w.e.f.

20.10.2011. The Respondent had prayed for restraining the

Defendants from receiving the monthly rent and maintenance charges

and for a direction to the tenant to deposit the same in Court. The

Respondent had further prayed for deposit of the total rental and

maintenance charges received by the Appellant w.e.f. 20.10.2010 till

date with the Court.

6. The learned Single Judge by the impugned order has restrained

the Defendants from recovering/receiving the monthly rent and the

maintenance charges from the tenant with respect to the said premises

and has further directed the Appellant to deposit the said rent received

from the tenant with the Registrar General of this Court till the

decision of the Suit. As regards the rent already received by the

Appellant since 2010, the learned Single Judge has directed that the

same will be decided at the final stage of the Suit.

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7. Aggrieved by the said impugned order, the Appellant has filed

the present appeal contending that the application filed under Order 38

CPC does not satisfy the requirements of the said provision in as

much as the Appellant was neither trying to dispose of the said

property nor trying to remove the same from the local jurisdiction of

the court and further it is denied that there was any fraudulent

transaction on the part of the Appellant or her husband or that the

property had been acquired from the monies of the Respondent.

8. The learned counsel for the Appellant has relied on the decision

of the Supreme Court of India in the case of Raman Tech. and

Process Engg. Co. & Anr. v. Solanki Traders, 2008 (2) SCC 302 to

contend that for an order under Order 38 rule 5 to be passed, the court

has to be satisfied that there should be a prima facie case and that the

Defendant is attempting to remove or dispose the assets with the

intention of defeating the decree that may be passed.

9. After hearing the learned counsel for the parties, we are of the

opinion that the impugned order does not call for any interference.

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The learned single judge in the exercise of his discretion has passed a

protective order in respect of the rental received from a property in

respect of which there is already a protective order. If a corpus is

required to be protected then any income generated from the said

corpus can also be protected.

10. The Learned Single Judge has noticed in the impugned order

that the Respondent has provided details of the illegal payments

withdrawn from the account of the Respondent at the relevant time

whereas the Appellant has not been able to give the details of the

amount paid for the consideration to the tune of Rs. 69,15,350/- and

has noted the contention of the counsel for the Respondent that the

documents referred to by Appellant have been declared as false and

fabricated as per the report of the handwriting expert.

11. The reliance placed by the learned counsel for the Appellant on

the judgment in the case of Raman Tech (supra) is misplaced as the

said judgment is clearly not applicable to the facts of the present case.

The fact that an injunction has already been granted by the Division

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Bench in respect of the Suit properties, establishes that the

Respondent (Plaintiff) has been able to show a prima facie case.

Further, the impugned order has been passed for preserving the rental

income generated from a Suit property in respect of which there is

already a protective order. The payment to be received by the

Appellant from the tenant is money and in case at the time of the

passing of the Decree, the money is no longer available in the account

of the Appellant, the decree would be defeated. Since the rental

income has been directed to be deposited with the Registrar General

of this court, the same shall follow the result of the Suit. If the

Appellant succeeds, the same shall enure to the benefit of the

Appellant.

12. The Learned Single Judge has exercised his discretion for

preservation of the income generated from the property that is a

subject matter of the Suit.

13. It is a settled proposition of law that an appellate court will not

ordinarily substitute its discretion in the place of the discretion

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exercised by the trial court unless it is shown to have been exercised

under a mistake of law or fact or in disregard of a settled principle or

by taking into consideration irrelevant material. A "discretion", when

applied to a court of justice means discretion guided by law. It must

not be arbitrary, vague and fanciful but legal and regular.1 We do not

think that any such circumstance exists in the facts of the present case

or that the discretion exercised by the Learned Single Judge calls for

any interference.

14. In view of the above, we find no merit in the appeal, the same is

dismissed leaving the parties to bear their own costs.

SANJEEV SACHDEVA, J.

JANUARY 28, 2015                                    BADAR DURREZ AHMED, J.
st

Ashwin S. Mehta versus Union of India 2012 (1) SCC 83

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