Delhi High Court
Smt Babita Sharma & Anr. vs The Shankar Coop. Urban T/C ... on 26 May, 2022
$~50(Appellate Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 500/2022 & CM APPL. 25426/2022, CM APPL.
25427/2022
SMT BABITA SHARMA & ANR. ..... Petitioners
Through: Mr. O.N. Sharma, Adv.
versus
THE SHANKAR COOP. URBAN T/C SOCIETY
..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 26.05.2022
1. The impugned order dated 24th March, 2022, passed by the
learned District Judge (Commercial Court) ("the learned Commercial
Court") in Ex. 56/2021 (The Shankar Coop. Urban T/C Society v.
Smt. Babita Sharma), reads as under:
"EX No. 56/2021
The Shankar Co-op Urban T&C Society Ltd.
Vs.
Babita Sharma & Ors.
24.03.2022
Present: Ms. Deeksha Mishra, Advocate, Ld. Counsel for
the DH.
JD No.1 & 3 are in person. (JD No.3 is an advocate by
profession and JD No.1 is wife of JD No.3)
JD No.2 is yet to be served.
.
Notices qua JD Nos..l & 3 returned duly served. As per
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
12:53:24
report, notices have been accepted by Sh. Chaman Kumar
Sharma, JD No.3/ husband of the JD No.1 on 15.01.2022.
Notice qua JD No.2 returned unserved with the report
of 'left the premises after selling the same to one Sh. Satish
Kumar, Advocate. Regd. Post and Speed post qua JD No.2
also returned unse1ved with the report 'left without
instructions'.
Notice qua JD No.2 is awaited.
On being asked, JD No.l & 3 submits that JD No.2 was
their guarantor and they do not know about his present
whereabout.
Ld. Counsel for the DH needs time to trace out the
fresh address of JD No.2. Let it be filed within a period of
three weeks, if any.
IA U/o 21 Rule 26 r/w Section 151 for stay of
execution filed by JDs :-
Copy of the application is supplied to Ld. Counsel for
the DH. Reply, if any, be filed within three weeks."
In the meantime, both the JDs are directed to furnish
the detail of their properties including bank accounts on
affidavit.
Renotify the matter for disposal of above IA on
20.05.2022."
2. Ex. 56/2021, in which the present petitioners were Judgment
Debtors 1 and 3 (hereinafter, "JD 1 & 3") sought execution of an
award, dated 31st July, 2020, passed by the learned arbitrator in
Arbitration Case No. 2878/AR/ARB/2017-18 (The Shankar Coop.
Urban T/C Society v. Smt. Babita Sharma & Ors.), whereby the
petitioners were directed to pay, to the respondent, ₹ 15,24,168/- along
with interest and penal interest @ 18.6 % p.a. with effect from 18th
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
12:53:24
July, 2020 till realisation of the principal amount.
3. The respondent, as the successful claimant in the arbitral
proceedings, sought execution of the aforesaid award by way of Ex.
56/2021. The present petitioners moved an application, in the said
execution proceedings, under Order XXI Rule 26 read with Section
151 of the Code of Civil Procedure, 1908 (CPC) seeking stay of the
execution proceedings.
4. A reading of the impugned order dated 24th March, 2022 reveals
that the learned Commercial Court has called upon the respondent/DH
to file a reply to the said application within three weeks and has, in the
interregnum, required the petitioners to file details of their assets.
5. I am, frankly, completely befuddled as to how the petitioners
have at all chosen to challenge this order under Article 227 of the
Constitution of India.
6. The order is, ex-facie, innocuous and does not result in any
prejudice to the petitioners at all.
7. Notice has effectively been issued on the petitioners'
application seeking stay of the execution proceedings, and the
respondent has been called upon to file its reply thereto. The only
other direction, in the impugned order dated 24th March, 2022, is for
the petitioners to place on record the details of their assets.
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
12:53:24
8. It is not the contention of the learned Counsel for the petitioners
that the learned Commercial Court did not possess the jurisdiction or
authority to call upon the petitioners to file details of their assets.
9. Indeed, Order XXI Rule 26 of the CPC specifically empowers
the court to issue such a direction.
10. This position also stands recognised by the Supreme Court in its
decision in Rahul S. Shah v. Jinendra Kumar Gandhi 1
11. The sole contention of Mr. Sharma, learned Counsel for the
petitioners, is that the learned Commercial Court ought to have
allowed the said application filed by the petitioners, seeking stay of
the execution proceedings.
12. There is no mandate, in law, or otherwise, requiring the
executing court to decide the application under Order XXI Rule 26 on
the very first day. It is entitled to call upon the Decree Holder to file a
reply to the application before taking a decision thereon.
13. That is all that the learned Commercial Court has done in the
present case. There is, clearly, no erroneous exercise of jurisdiction,
by the learned Commercial Court, as would call for supervisory
correction by this Court, in exercise of its powers under Article 227 of
the Constitution of India.
(2021) 6 SCC 418
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
12:53:24
14. This petition is accordingly completely misconceived and is
dismissed in limine, with no order as to costs.
C. HARI SHANKAR, J
MAY 26, 2022
dsn
Signature Not Verified
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
12:53:24
