Smt. Sukrita Bajaj vs Sh. [email protected] Sehgal
2022 Latest Caselaw 238 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 24th January, 2022

+                        EX.P. 57/2018

       SMT. SUKRITA BAJAJ                         ..... Decree Holder
                    Through:          Ms. Sonali Malhotra, Advocate.

                         Versus

       SH. [email protected] SEHGAL ..... Judgment Debtor
                    Through: Mr. Neeraj Yadav, Advocate.

CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL

                                JUDGMENT

AMIT BANSAL, J. (Oral) EX.(OS) 1315/2021(u/O.XXI R-58 CPC)

1. The present application has been filed on behalf of the judgment debtor seeking to place on record objections under Order XXI Rule 58 of the Code of Civil Procedure, (CPC), 1908, against the attachment/sale of basement, ground floor and third floor with terrace rights of property bearing No. S-87, Greater Kailash, Part-II, New Delhi.

2. The facts leading to the filing of the present application by the judgment debtor are: (i) The suit bearing no. CS (OS) 172/2017 filed by the petitioner herein was decreed in the sum of Rs. 2,81,25,000/- along with interest @ 10 % by this Court on 13th April, 2018: (ii) the present execution petition was filed by the decree holder on 22th May, 2018 for execution of the decree dated 13th April, 2018: (iii) notice was issued in the present

petition and an order of attachment of properties bearing no. S-87, Greater Kailash-II, New Delhi and E-107, Ground Floor, Greater Kailash-II, New Delhi, was passed by this Court on 16th July, 2018. Further, the judgment debtor was directed to file an affidavit of assets in terms of Order XXI Rule 41(2) of the CPC; (iv) objections were filed by the builders with whom the father of the judgment debtor had entered into a collaboration agreement for reconstruction of property bearing no. S-87, Greater Kailash-II, claiming to be the owner of the first and second floor of the said property ; (v) the said objection were allowed by this Court vide order dated 15th March, 2021 and the warrants of attachment issued in terms of first and second floor of the aforesaid property were withdrawn; (vi) objections were also filed by Ms. Suneeta Sehgal, sister of the judgment debtor, claiming to be 50% owner of the remaining share in the said property: (vii) subsequently an affidavit was filed by Ms. Suneeta Sehgal stating that she has no objection if this Court dispose of the share of the judgment debtor in the property subject to safe custody of her share in the property; (viii) an application was filed by the decree holder seeking proclamation of sale with respect to the share of the judgment debtor in the property bearing no. S-87, Greater Kailash-II, New Delhi; (ix) This Court vide order dated 29th October, 2021 allowed the application filed on behalf of the decree holder and fixed the schedule for proclamation and sale through auction of the half undivided share of the decree holder in the subject property to be conducted on 28th January 2022.

3. This application has been filed on 29th October, 2021 and by way of the said application, the judgment debtor seeks to place on record his objections premised on Section 60(1)(ccc) of the CPC. It is averred that the said property is the sole residential property of the judgment debtor and

therefore, the same cannot be attached in terms of Section 60(1)(ccc). In this regard reliance is placed on the affidavit of assets filed on behalf of the judgment debtor on 19th November, 2018 wherein the residential address of the judgment debtor is shown as E-107, Greater Kailash, Part-II and in the list of assets only one residential property, being No. S-87, Greater Kailash, Part-II, New Delhi, is shown.

4. Counsel for the judgment debtor submits that this property was subject matter of the Collaboration Agreement between the builder M/s. JPMG Enterprises (hereinafter 'builder') and the father of the judgment debtor in terms of which first floor and second floor of the aforesaid property went to the share of the builder whereas the basement, ground floor and third floor along with terrace rights came to the share of the judgment debtor. It is stated that the sister of the judgment debtor, claiming to be 50% owner of the aforesaid portions of the property, has filed a suit against the judgment debtor which is pending before this Court. It is submitted that this is the only residential property owned by the judgment debtor and the judgment debtor was living in the property being E-107, Greater Kailash-II, New Delhi on rental basis while the aforesaid property was re-developed.

5. Based on the aforesaid facts, the counsel for the judgment debtor makes three-fold submissions that (i) in terms of proviso (a) to Order XXI Rule 58 (1) of the CPC, he can validly raise the objections at this stage, as the property in question has not been sold yet; (ii) there is no question of delay in filing the objections and the delay as provided in proviso (b) to Order XXI Rule 58 (1) has to be considered in the context of proviso (a) i.e. when the property has not been sold, it cannot be said that there is delay in filing objections; and, (iii) that in any case there is a limitation of three years

provided under the residuary clause 137 of the Schedule 1 of the Limitation Act, 1963, in terms of which the limitation of three years is provided. Reliance is also placed on the various orders passed by the Supreme Court in Suo Moto Writ Petition (Civil) No. 3/2020 extending the period of limitation.

6. It was further contended that once an affidavit has been filed on behalf of the judgment debtor disclosing assets and stating therein that the aforesaid property is the only residential house, the filing of objections by the judgment debtor were not required and it was for the Court to see if the judgment debtor is entitled to exemption under Section 60(1)(ccc) of the CPC. Reliance is placed on the order dated 21st January, 2019 to contend that this aspect was being considered by the Court and that is why the parties were directed to file note of submissions along with judgments.

7. Counsel appearing on behalf of the decree holder disputes the fact that this is the issue which came up before the Court on 21st January, 2019. She submits that she was present in the Court on the said date whereas the counsel now appearing on behalf of the judgment debtor was not.

8. Counsel appearing on behalf of the decree holder submits that (i) decree in question was passed in the presence of the judgment debtor on 13th April, 2018 and therefore, judgment debtor was fully aware of the said decree. The decree has not been challenged by the judgment debtor; (ii) an attachment order was passed by this Court as far back as on 16th July, 2018, in respect of this property, however, even the said order has not been questioned or challenged till now; (iii) objections were filed by the builder on 13th December, 2019 in respect of the builder's share of the property and ultimately the said objections were allowed by this Court on 15th March,

2021. All this while also the judgment debtor just waited for the builders objections to be decided without filing any objections of his own; (iv) there is a contradiction between two affidavits of assets filed on behalf of judgment debtor, in the earlier affidavit, it is stated that the judgment debtor does not own any residential property whereas in the later affidavit the property bearing no. No.S-87, Greater Kailash, Part-II, New Delhi is shown to be owned by the judgment debtor; (v) proclamation of sale is only in respect of the half undivided share of the judgment debtor, therefore it does not prejudice the interest of his sister in any manner.

9. Attention is drawn to the order dated 27th September, 2021 passed by the Joint Registrar where the judgment debtor was present in person along with his counsel and took various objections with regard to the valuation of the property but never took the objections which is now sought to be taken under Section 60(1)(ccc) of the CPC. She further submits that the schedule for auction has been set out in the order dated 29th October, 2021 passed by the Joint Registrar in terms of which public auction of the property is to be conducted on 28th January, 2022 and the attempt of the judgment debtor is to somehow stall the same.

10. I have heard the counsels for the parties.

11. At the outset, it may be relevant to reproduce the provisions of Order XXI Rule 58(1) of the CPC:

"58. Adjudication of claims to or objections to attachment of property.--

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment,

the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained : Provided that no such, claim or objection shall be entertained--

(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or ,

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

12. Proviso (a) and (b) to Order XXI Rule 58(1) of the CPC are separated with the word 'or', therefore, both the conditions are disjunctive. Therefore, the Courts shall not entertain the objections, if either of the two situations/conditions as stipulated in Proviso (a) and (b) exists. Accordingly, if the objections were 'designedly or unnecessarily delayed' in terms of proviso (b), the objections shall not be entertained even if the attached property has not been sold.

13. In light of the above, there is no merit in the submissions made on behalf of the judgment debtor that proviso (b) to Order XXI Rule 58 (1) of the CPC has to be read along with proviso (a) and the delay has to be seen only in the context of whether the property has already been sold or not. Such reading of proviso (b) makes it otiose and meaningless.

14. The submission made on behalf of the judgment debtor that the residuary period of limitation of three years as prescribed under Article 137 of Schedule 1 of the Limitation Act, 1963, has to be invoked to determine delay under proviso (b) to Order XXI Rule 58 (1) of the CPC, does not have any merit. Under proviso (b) to Order XXI Rule 58 (1) CPC, delay has to be seen in the context of when the execution proceedings were filed and whether objections have been filed with regard to the same without

unnecessary delay. In the present case, the record shows that the judgment debtor and his counsel have throughout been appearing in the execution proceedings. The attachment order in respect of the very same property was passed on 16th July, 2018 in the presence of the judgment debtor and yet no objections were filed till the filing of the present application on 29th October, 2021.

15. Even though, the builder had filed objections in respect of the builder's share of the property but the judgment debtor chose not to file any objections. Rather he waited for the builder's objections to be decided and watched from the side lines. Ultimately, the objections filed by the builder were allowed on 15th March, 2021. Even at this stage, the objections were not filed on behalf of the judgment debtor. It is only when the judgment debtor saw the writing on the wall that the property in question were to be auctioned, the objections have been filed belatedly on 29th October, 2021.

16. I do not find any merit in the argument raised on behalf of the judgment debtor that once affidavit has been filed in which aforesaid property has been disclosed to be the only residential house, he need not have filed any objections. In this regard, counsel for the decree holder has correctly pointed out that the judgment debtor has been taking contradictory stands, as in the first affidavit of assets filed by the judgment debtor, it was stated that the residential property of the judgment debtor is E-107, Greater Kailash-II, New Delhi, and that he does not own any property of his own. However, in the second affidavit of assets filed by the judgment debtor, E- 107, Greater Kailash-II, New Delhi, has been shown as the residential property and S-87, Greater Kailash-II, New Delhi has been shown as the property owned by the judgment debtor. From a reading of the aforesaid

affidavits, it cannot be said that S-87, Greater Kailash-II, New Delhi was the sole residential property of the judgment debtor as in the said affidavit, the judgment debtor has also mentioned E-107, Greater Kailash-II New Delhi as the residential property. If it was the case of the judgment debtor that S-87, Greater Kailash-II, New Delhi was the sole residential property of the judgment debtor, he should have raised objections in this regard at a much earlier stage. Reliance placed by the judgment debtor on the order dated 21st January, 2019 to contend that that this very issue was flagged by this Court, is completely misconceived. Nothing from the reading of the aforesaid order shows that the issue considered by the Court on the said date of hearing was with regard to the objection of the judgment debtor under Section 60 (1) (ccc) of the CPC.

17. The counsel for the decree holder has correctly stated that the proclamation of sale is only in respect of the half undivided share of the judgment debtor, therefore it does not prejudice the interest of his sister in any manner.

18. In view of the above, there is no doubt in the mind of this Court that the present application/objections have been filed belatedly by the judgment debtor on 29th October, 2021 just to stall the auction process which is scheduled on 28th January, 2022.

19. There is no merit in the application, the same is dismissed.

AMIT BANSAL, J JANUARY 24, 2022 ak/Sakshi R.