Delhi High Court
Binod Kumar Bawri & Ors vs Dalmia Cement (Bharat) Limited on 24 September, 2015
Author: Badar Durrez Ahmed
$~32 & 33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24.09.2015
+ FAO (OS) 389/2015
+ FAO (OS) 544/2015
BINOD KUMAR BAWRI & ORS .... Appellants
versus
DALMIA CEMENT (BHARAT) LIMITED ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr A.S. Chandiok, Sr Advocate with Mr Shaunak
Kashyap, Mr Ravjyot Singh, Mr Rahul Mukherjee and
Ms Abhaya Kashyap, Advocates.
For the Respondent : Mr Akil Sibal, Mr Ankur Mahindra, Mr Pradeep
Chandra, Mr Harshal Tholia and Mr S. Choudhary,
Advocates.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.21121/2015 (exemption) in FAO(OS) 544/2015
Exemption is allowed subject to all just exceptions.
CM No.21117/2015 in FAO(OS) 389/2015
Although this appeal was to be taken up on 01.10.2015, on account of
the fact that the learned Single Judge has passed another order on 22.09.2015
and an appeal [FAO(OS) 544/2015] has been preferred therefrom and that
appeal is listed before us today, we are allowing this application and taking up
the consideration of FAO(OS) 389/2015 also.
The next date fixed in the matter i.e. 01.10.2015 stands cancelled.
FAO(OS) 389/2015
FAO(OS) 544/2015 & CM No.21122/2015 (stay)
1. FAO(OS) 389/2015 has been preferred against the order dated
15.07.2015. That order was passed in OMP(I) 341/2015. The order dated
15.07.2015 reads as under:-
"CAVEAT 710/2015
1. Learned counsel for the Caveator is present and has
received paper book.
2. Caveat is disposed of.
IA No.13873/2015
3. Exemption allowed subject to just all exceptions.
4. IA stands disposed of.
O.M.P.(I) 341/2015
5. Issue notice.
6. Learned counsel for the respondents/caveator accepts
notice.
7. The respondents are directed to file affidavits of their
assets in the Form 16A, Appendix E under Order 21
Rule 41(2) of the Code of Civil Procedure within a
period of one week with advance copy to the learned
counsel for the petitioner.
8. List for further hearing on 10th August, 2015.
9. Respondents shall not transfer or create any third
party interest in respect of their assets till the next date
of hearing.
10. Learned counsel for the respondents submits
that this order would obstruct in their business activities.
If any such contingency arises, the respondents are
given liberty to approach this Court for appropriate
orders.
11. Learned counsel for the respondents further
submits that day to day operation of the bank accounts
should not be stopped. It is clarified that the respondents
can operate their bank accounts for day to day activities.
However, the particulars of such operations be filed
along with affidavit.
12. Copy of the order be given dasti to the learned
counsel for the parties under the signatures of Court
Master."
2. On 10.08.2015, the said FAO(OS) 389/2015 came up for hearing and
this Court passed the following order:-
"Renotify on 18.08.2015.
In the meanwhile, the affidavit, which has been filed by
the appellant with regard to the furnishing of an
appropriate security, be also placed before the learned
Single Judge before whom the matter is listed today. The
learned Single Judge shall examine the same and may vary
the order, which is impugned herein, without being
influenced by any observations made in the earlier order
or any observations made by us in any of the orders passed
in this appeal. A copy of the affidavit, which has been
filed in this appeal, shall be placed before the learned
Single Judge today itself. A copy of the reply to the
affidavit may also be placed before the learned Single
Judge.
Dasti under the signature of the Court Master."
3. From the order passed on 10.08.2015, it is clear that while the appeal
was kept pending before this Court, we had directed that the affidavit which
was filed by the appellants with regard to the furnishing of an appropriate
security be also placed before the learned Single Judge, who was required to
examine the same and, upon such examination, he could vary the order which
was impugned herein. In other words, he could vary the order dated
15.07.2015. But, we find from the order dated 22.09.2015, which was passed
by the learned Single Judge that the said affidavit was not examined at all and
instead, a direction was passed even beyond the original directions of
15.07.2015. The order dated 22.09.2015 reads as under:-
1. The respondent has placed on record
the copy of affidavit dated 05th August, 2015
filed before the Division Bench in FAO (OS)
No.389/2015.
2. Learned senior counsel for the
petitioner submits that the affidavit dated 05th
August, 2015 is not in terms of the order
dated 15th July, 2015 whereby this Court had
directed the respondents to file the affidavit
of their assets in Form 16A, Appendix E,
under Order XXI Rule 41(2) of the Code of
Civil Procedure. It is further submitted that
the respondent was required to disclose the
particulars of their operations in terms of
para 11 of the affidavit which has not been
done.
3. Learned senior counsel for the
respondents submits that without prejudice to
the rights and contentions, the respondents
shall file a fresh affidavit in terms of the
order dated 15th July, 2015.
4. The respondents are directed to file
fresh affidavit of their assets in Form 16A,
Appendix E, under Order XXI Rule 41(2) of
the Code of Civil Procedure along with
statement of all their bank accounts, balance
sheets and income tax returns for the last
three years within five days. The respondents
shall also disclose in the affidavit the status
of their assets as on 15th July, 2015 as well as
on the date of filing of the affidavit.
5. List on 28th September, 2015 at the end
of the Board.
6. Copy of this order be given dasti to
counsels for the parties under signature of
Court Master."
4. We may point out that although the order dated 22.09.2015 purported to
have been passed in OMP(I) 341/2015 and OMP(I) 410/2015, no notice had by
then been issued by the learned Single Judge in OMP(I) 410/2015. Therefore,
we take it that the order was actually passed only in respect of OMP(I)
341/2015. FAO(OS) 544/2015 has been filed in respect of the order dated
22.09.2015 arising out of OMP(I) 341/2015.
5. The order dated 15.07.2015 requires the appellants herein to file
affidavits of their assets in Form 16A, Appendix E under Rule 41(2) of the
Code of Civil Procedure, 1908. It is important to note that the petition filed by
the respondent herein was one under Section 9 of the Arbitration &
Conciliation Act, 1996 for interim measures. It was not an application seeking
execution of any decree. In fact, there is no question of there being any decree
inasmuch as even the Arbitral Tribunal has not yet passed any award.
Therefore, clearly, Order 21 Rule 41(2) CPC is inapplicable in this case. The
heading of Rule 41 of Order 21 itself discloses that it pertains to the
examination of a judgment debtor as to his property. Rule 41(2) is applicable
where a decree for the payment of money has remained unsatisfied for a period
of 30 days. This is not the case here. Therefore, the provisions of Order 21
Rule 41 (2) of the CPC are inapplicable and, consequently, the requirement of
the appellants to furnish affidavits in Form 16 A, Appendix (C) CPC is without
the authority of law.
6. Therefore, it was incumbent upon the learned Single Judge to have
examined the affidavit which was filed pursuant to a direction given by this
Court and to have passed appropriate orders in terms of Section 9 of the said
Act which permits the Court to provide for interim measures in respect of any
of the matters specified in Section 9(ii). Before such an order could be passed
by way of interim measures, the Court has to be satisfied that the petitioner has
made out a prima facie case and that the balance of convenience is also in
favour of making any interim measures. The question of irreparable harm and
injury would also have to be considered. We find that no such conclusions
have been arrived at by the learned Single Judge.
7. Consequently, the impugned orders dated 15.07.2015 and 22.09.2015
are set aside. However, we are leaving the question open to be decided by the
learned Single Judge as to whether the petitioner in the said Section 9
applications has or has not made out a case for interim measures. The affidavit
that has been filed before this Court and which we have directed the parties to
place the same before the learned Single Judge would be examined by the
learned Single Judge from the stand point of any interim measures that may be
contemplated. In the meanwhile, Mr Chandhiok, the learned senior counsel
appearing on behalf of the appellants states that no third party interest would be
created in the assets mentioned in the affidavit. It is further directed that if any
other assets which are not mentioned in the affidavit are transferred or any third
party rights created therein till the matter is taken up by the learned Single
Judge, full account thereof shall be placed before the learned Single Judge.
8. The appeals stand disposed of.
9. Dasti under the signatures of the Court Master.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
SEPTEMBER 24, 2015/st
