Delhi High Court
Alimenta S.A. vs N.A.Cm.F.Of India on 14 September, 2017
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14.09.2017
+ EX.P. 204/2002
ALIMENTA S.A. ..... Decree Holder
versus
N.A.CM.F.OF INDIA ..... Judgement Debtor
Advocates who appeared in this case:
For the Petitioner : Mr. Arvind K. Nigam, SR. Adv. with Mr.
Shailendra Swarup and Ms. Aparajita Swarup,
Advs.
For the Respondents : Mr. Sandeep Sethi, Sr. Adv. with Mr. Aditya Vijay
Kumar, Ms. Liza M. Baruah, Ms. Akshita,
Mr.Anurag Tiwari, Mr. L.K. Batra and Mr.
Dhanjeet, Advs.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
I.A. 357/2017 (Exemption)
Allowed, subject to all just exceptions.
EX. P. 204/2002 & I.A. 356/2017 (under Order XXI Rule 26 of
the CPC) & I.A. 358/2017 (under Section 151 of the CPC seeking
recall/modification of the order dated 24.08.2017)
1. The Judgment Debtor by I.A. 356/2017 seeks a stay of the
execution proceedings and by I.A. 358/2017 seeks modification of
order dated 24.08.2017 whereby this Court had directed that till the
next date i.e. 31.10.2017 the Judgment Debtor shall not alienate,
transfer, encumber or create any third party right in respect of
immoveable properties mentioned in Annexure-B to the affidavit
dated 21.08.2017 (under Order XXI Rule 41 of the CPC), except with
the leave of the Court.
2. Learned Senior Counsel for the Judgment Debtor submits that
the Judgment Debtor has approached Government of India for
salvaging with the Judgment Debtor. It is contended that there is a
proposal to settle the debts of the lending bank by way of a One Time
Settlement (OTS) at a substantially reduced amount.
3. It is contended that for the purposes of entering in the said OTS,
the assets in respect of which order dated 24.08.2017 has been passed
are sought to be placed as security with the Government so that
money could be paid by the Government which could be utilized for
payment to the lending bank under the OTS.
4. It is contended that this order is preventing the Judgment
Debtor from placing the said assets as security with the Government.
5. Learned Senior Counsel appearing for the Decree Holder
submits that the Judgment Debtor has filed an Special Leave Petition
against judgment dated 06.09.2010 of the full bench of this Court in
FAO(OS) 205/2000 whereby, by a majority decision, the appeal filed
by the Judgment Debtor against the order of Single Judge affirming
the foreign award was held to be not maintainable.
6. It is contended that by order dated 25.10.2010 the Supreme
Court had directed stay of the impugned judgment subject to the
Judgment Debtor depositing the entire awarded amount along with
interest within eight weeks with this Court.
7. It is contended that thereafter the Judgment Debtor filed an
application seeking modification of order dated 25.10.2010 and the
Supreme Court by order dated 24.01.2011 directed Judgment Debtor
to deposit 50% of the awarded amount with interest and also submit
an unconditional bank guarantee for the balance 50% of the amount.
8. It is submitted that a further modification of the orders was
sought which was also allowed vide order dated 07.04.2011 whereby
the Judgment Debtor was directed to furnish a bank guarantee for the
entire amount along with interest.
9. It is contended that even this order was not complied with by
the Judgment Debtor and accordingly by order dated 17.01.2012, the
prayer for interim protection was rejected by the Supreme Court and
the Supreme Court granted a liberty to the Decree Holder to enforce
the decree and it is, in these circumstances, that the Decree Holder is
pressing the present execution.
10. It is contended that the unencumbered assets were disclosed by
the Judgment Debtor by the affidavit dated 21.08.2017 and
accordingly this Court vide order dated 24.08.2017 has restrained the
Judgment Debtor from alienating, transferring, encumbering or
creating any third party right in respect of the properties mentioned in
Annexure-B to the affidavit dated 21.08.2017.
11. Further it is contended that the grounds raised by the Judgment
Debtor in the said application are based on facts of the year 2015 and
in 2016 an application was even moved before the Supreme Court
seeking stay of the present application. However, these facts were not
disclosed in the application. It is contended that the Supreme Court
declined to entertain the application and accordingly the application
was withdrawn.
12. Perusal of Order XXI Rule 26 of the CPC under which Ex.
Appl. (OS) 356/2017 has been filed shows that under the said
provision a stay of the execution could be sought in case the Judgment
Debtor is seeking to approach the Appellate Court.
13. In the present case, the said provisions is clearly not applicable
as the Judgment Debtor has already filed an appeal in the Appellate
Forum and the Supreme Court has specifically permitted the Decree
Holder to seek execution of the said award and in terms of Order XXI
Rule 28 of the CPC these proceedings are proceedings.
14. Further the contention of the Judgment Debtor is that the
Judgment Debtor seeks to place these assets as security with the
Government for release of funds so that the said funds could be
utilized to pay the lending bank as a One Time Settlement.
15. The affidavit dated 21.08.2017 of the Judgment Debtor
discloses that the said assets are the only unencumbered assets and in
case any third party interest is created in the said assets and they are
given as security then the authorities/banks with whom the assets are
secured would have a first charge and Decree Holder would not be left
with no assets to recover the decretal amount.
16. The submission of the Judgment Debtor is that assets are to be
utilized for the purpose of securing funds to make payment to lending
banks and not to the Decree Holder in this case.
17. In view of the above, the judgment debtor is not entitled to the
reliefs as prayed for. The applications are accordingly dismissed.
18. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
SEPTEMBER 14, 2017
'rs'
