Delhi High Court
Trans Asian Industries ... vs G.S. Berar And Co. Pvt. Ltd & Anr. on 22 September, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd September, 2021.
+ CM(M) 641/2021
TRANS ASIAN INDUSTRIES EXPOSITIONS
PVT. LTD. ... Petitioner
Through: Mr. Lakshay Dhamija, Advocate.
Versus
G.S. BERAR AND CO. PVT. LTD. & ANR. ..... Respondents
Through: Mr. Saurabh Anand Prakash,
Advocate.
+ CM(M) 642/2021
TRANS ASIAN INDUSTRIES EXPOSITIONS
PVT. LTD. ..... Petitioner
Through: Mr. Lakshay Dhamija, Advocate.
Versus
SONI DAVE ..... Respondent
Through: Mr. Saurabh Anand Prakash,
Advocate.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J. (Oral)
CM No. 33164/2021 in CM(M) 641/2021(for exemption)
CM No. 33166/2021 in CM(M) 642/2021(for exemption)
1. Allowed, subject to all just exceptions.
2. The applications are disposed of.
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
CM(M) 641/2021 & CM No. 33163/2021(for stay)
CM(M) 642/2021 & CM No. 33165/2021(for stay), CM No.
33167/2021(for condonation of delay of 752 days in filing petition)
3. The present petitions under Article 227 of the Constitution of India
impugn the orders dated 1st August, 2019 passed by Additional District
Judge (ADJ)-04, South District, Saket Courts, New Delhi in Execution
Petition No.3081/2016 titled M/s. G.S. Berar and Co. Pvt. Ltd and Anr Vs.
Trans Asian Industries Exposition Pvt. Ltd and Execution Petition
No.3082/2016 titled Soni Dave Vs. Trans Asian Industries Exposition Pvt.
Ltd whereby the petitioner/judgment debtor (JD) was directed to pay a sum
of Rs.5,60,000/- in CM(M) 641/2021 and Rs.1,80,000/- in CM(M) 642/2021
to the respondents/decree holders within 15 days failing which the petitioner
was directed to pay a penalty of Rs.10,000/- per week till the time the
payment is made to the respondents/decree holders.
4. The counsel for the petitioner contends that (i) the penalty imposed in
terms of the said orders was exorbitant; (ii) there was a dispute between the
petitioner and the Income Tax Department because of which the Income Tax
Department wrongly recovered the amount from the petitioner by attaching
its bank accounts and made wrongful adjustments of the amount deposited
by the petitioner towards Tax Deducted at Source (TDS) recovered from
various parties including the respondents and therefore, the petitioner could
not issue the TDS certificates to the respondents; and (iii) the petitioner has
filed a writ petition against the arbitrary action of the Income Tax
Department which is pending adjudication before the Jammu and Kashmir
High Court.
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
5. The counsel appearing on behalf of the respondents on advance notice
vehemently opposes the present petitions. He contends that the proceedings
against the Income Tax Department were filed before the Jammu and
Kashmir High Court in 2015. Therefore, there was no occasion for the
petitioner to deduct tax from the payments made to the respondents in 2017.
In any event, the counsel submits that the respondents have nothing to do
with the dispute between the petitioner and the Income Tax Department and
therefore, either the amount of tax deducted should have been paid to the
respondents or the necessary certificate evidencing deposit of tax with
Income Tax Department should have been furnished to the respondents.
6. Before I proceed to decide the matter on merits, it may be relevant to
refer to the conduct of the petitioner and the timing of the present petitions.
The impugned orders were passed as far back as on 1st August, 2019,
however, the petitioner has chosen to challenge the same only now i.e. 21st
September, 2021. The reason that the said orders have been impugned only
now appears to be in view of the order passed by this court on 1st September,
2021 in CM(M) 576/2021 and CM(M)577/2021 preferred by the petitioner.
While disposing of the said petitions on 1st September, 2021, following
directions were made:
"13. Accordingly, both petitions are disposed of with the
following directions:
(i) The principal amount of TDS due in both the petitions i.e.
Rs.5,60,000/- and Rs.l,80,000/- respectively would be paid by the
petitioner to the respondents on or before 4th September, 2021.
(ii) The penalty amount of Rs.10,70,000/- imposed separately in
both the petitions would be paid to the respondents on or before
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
22nd September, 2021.
(iii) Out of the amount of Rs.36,87,264/-, subject matter of
CM(M) 577/2021, a sum of Rs.22,00,000/- as calculated above,
would be paid to the respondents on or before 15th October,
2021.
(iv) The petitioner is given an opportunity of one week to file his
objections only in respect of Rs.36,87,264/- directed to be paid
by the Executing Court and which objections will be considered
by the Executing Court in calculating the amount due from the
petitioner to the respondents.
(v) If any default is made in the payment of any of the amounts as
directed above on the due dates, the respondents would have the
liberty to press for issuance of arrest warrants against the
petitioner in terms of the application filed."
7. It was only because of the timeline of 22nd September, 2021 fixed by
the order aforesaid that the present petitions have been filed and got listed
before the Court on 22nd September, 2021. After the aforesaid order dated 1st
September, 2021 was passed, applications were filed by the petitioner on 6 th
September, 2021 in CM(M) 576/2021 and CM(M) 577/2021 seeking
extension of the time for making payments in terms of paragraph 13(i) of the
aforesaid order. At the hearing of the said applications, it was put to the
counsel for the petitioner that the extension as prayed would be granted
subject to the directors of the petitioner filing an affidavit to the effect that
not only the first instalment but all future payments directed to be made in
terms of the order dated 1st September, 2021 would be made by the
petitioner as per the timeline fixed therein. Upon taking instructions, the
counsel for the petitioner withdrew the said applications. The said
applications were dismissed by the order dated 6 th September, 2021 with
costs of Rs.10,000/-, with the following observations:
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
"4. The Court is surprised with this kind of instruction being
given by the petitioner to its advocate. It creates a doubt whether
petitioner intends to honour its commitments in terms of order
dated 1st September, 2021. Be that as it may, the counsel for the
respondent would have remedies in law, in case the payments in
terms of the order dated 1st September, 2021 are not made."
8. I am informed by the counsel for the respondents that the amount of
TDS directed to be paid by the order dated 1 st September, 2021 was only
paid by the petitioner on 11th September, 2021 and further, the cost imposed
on the petitioner by the order dated 6th September, 2021 has also not been
paid till date.
9. It is clear from the above that the attempt of the petitioner throughout
has been to delay execution proceedings by filing various
petitions/applications on frivolous grounds. It has rightly been contended by
the counsel for the respondents that the respondents are not concerned with
the dispute between the petitioner and the Income Tax Department. If the
TDS had been deducted by the petitioner from the payments made to the
respondents, the petitioner is bound to furnish TDS certificates to the
respondents. In the event the petitioner is unable to furnish TDS certificates,
it would have to pay the said amounts to the petitioner. Nothing has been
furnished by the petitioner to show that the amount deducted by it towards
TDS has been deposited with the Income Tax Department.
10. The petitioner has unjustifiably failed to make the payment of
Rs.5,60,000/- and Rs.1,80,000/- to the respondents respectively, and it was
only after the abovesaid order was passed by this Court on 1st September,
2021 that the said amounts have been paid to the respondents. The petitioner
was well aware of the penalty imposed by the Executing Court by the
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
impugned orders and despite the same, contested the same unsuccessfully
for over two years. If the petitioner felt that the penalty being imposed was
excessive, the petitioner should have challenged the impugned orders
immediately. The reason why the said penalty has magnified into a sum of
Rs.10,70,000/- is only because the petitioner did not pay the amounts of
TDS that were required to be paid. Therefore, at this stage, the petitioner
cannot avoid the payment of the penalty imposed by the impugned orders.
11. Counsel for the respondents fairly submits that in the event the
petitioner furnishes proof of deposit of TDS amounts of Rs.5,60,000/- and
Rs.1,80,000/- to the credit of the respondents, and/or TDS certificates in the
name of the respondents, the aforesaid amounts shall be refunded back by
the respondents to the petitioner.
12. There is no merit in the present petitions.
Dismissed.
AMIT BANSAL, J
SEPTEMBER 22, 2021
Sakshi R.
Signature Not Verified
Digitally Signed
Signing Date:24.09.2021
18:17:59
