Delhi High Court
Santosh Goswami vs Nina S Kharade And Ors on 20 December, 2023
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.12.2023
+ CM(M) 2110/2023 & CM APPL. 66191/2023
SANTOSH GOSWAMI ..... Petitioner
Through: Mr Abhimanyu Garg, Advocate
(through VC)
versus
NINA S KHARADE AND ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
CM APPL. 66190/2023 (for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
CM(M) 2110/2023
1. This petition filed under Article 227 of Constitution of India impugns
the order dated 17.11.2023 passed by the National Consumer Disputes
Redressal Commission, New Delhi ('NCDRC') in Appeal Execution No.
AE/251/2023.
2. The learned counsel for the Petitioner states that the Petitioner has
preferred an Appeal Execution bearing No. AE/251/2023 which is pending
for hearing before the NCDRC wherein the Petitioner has challenged the
orders dated 16.08.2023 and 20.10.2023 passed by State Consumer Disputes
Redressal Commission, Delhi in EA/20/2023 ('State Commission') which
has directed issuance of warrants of attachment qua the property bearing no.
Flat No. 2, 60/30 Ramjas Road, Karol Bagh, New Delhi - 110005 ('subject
property')
2.1 He states that NCDRC vide impugned order dated 17.11.2023 has
issued notice in the application seeking stay of execution of warrants of
attachment of the subject property as well as appeal and posted the matter
for 29.01.2024. He states that however, NCRDC has not granted ad-interim
protection until the adjudication of the said stay application and/or appeal.
2.2 He states the State Commission on 30.11.2023 has issued warrants of
attachment of the subject property and has made it returnable on 24.01.2024
that is the date prior to date (29.01.2024) listed before the NCDRC.
2.3 He states that the subject property was the personal asset of late Shri
Vipul Krishna Goswami, who is the husband of the Petitioner. He relies
upon the sale deed dated 18.11.1999. He states that the Petitioner herein
being the Class-I legal heir of late Shri Vipul Krishna Goswami, therefore,
the subject property has devolved upon her. He has also placed on record the
lease deed dated 13.01.2023 executed by the Petitioner in favour of the
Lessor.
2.4 He states that the personal asset of late Shri Vipul Krishna Goswami,
it cannot be made a subject matter of execution which arises from the ex-
parte order dated 06.10.2022 passed by the State Commission in Consumer
Complaint No. 1795/2017 against Respondent No. 2 i.e., Shree Sneh Bihari
Estate Ltd, which is a juristic entity ('Company').
2.5 He states that the State Commission in its orders dated 16.08.2023
and 20.10.2023 has erred in holding that the subject property is the asset of
the Judgment Debtor, Company as it is the registered address of the said
Company. He states that the challenge to the orders dated 16.08.2023 and
20.10.2023 are pending in the appeal filed before NCDRC, however, the
said appeal will be rendered infructuous if the warrants issued on 30.11.2023
by the State Commission are executed.
2.6 He states that if the warrants of attachment are executed it shall cause
immense prejudice to the Petitioner's rights.
3. None appears on behalf of the Respondent No.1 despite advance
service.
4. This Court has considered the submissions of the counsel for the
Petitioner and perused the record.
5. The State Commission vide order dated 20.10.2023 has observed that
since the address of the subject property is recorded in the master data of the
Judgment Debtor, Company as the registered address of the company, the
State Commission has proceeded to presume that the subject property is the
asset of the Judgment Debtor, Company.
6. The State Commission in its order dated 16.08.2023 has observed that
since the Judgment Debtor, Company was carrying on business from the
subject property it cannot be the private property of late Shri Vipul Krishna
Goswami. The said finding has been returned after noting that the sale deed
of the subject property stands in the personal name of late Shri Vipul
Krishna Goswami. In view of the sale deed dated 18.11.1999 filed before
this Court, it ex-facie appears that the subject property is the personal asset
of late Shri Vipul Krishna Goswami. If that is the case, then in view of the
judgments of this Court in (i) G.S. Sandhu & Anr. v. Geeta Aggarwal
decided on 14.01.2022 reported in 2022 SCC Online Del 111 (ii) V.K.
Uppal v. M/s Akshay International Pvt. Ltd., 2010 SCC OnLine Del 538
(iii) Balmer Lawrie & Company Ltd. v. Saraswathi Chemicals
Proprietors Saraswathi Leather Chemicals (P) Ltd, 2017 SCC OnLine
Del 7519 the execution proceedings cannot be maintained against the
personal asset of late Shri Vipul Krishna Goswami, who was the director of
the Judgment Debtor, Company (Respondent no. 2) unless the exceptional
circumstances as noted in these judgments is made out.
7. There is no material on record to show that late Shri Vipul Krishna
Goswami purchased the asset in his name on behalf of the Judgement
Debtor, Company and therefore, the inference drawn by the State
Commission in order dated 16.08.2023 is not borne out from the record.
8. This Court is, therefore, satisfied that until the interim application for
stay filed in Execution Appeal is heard by the NCDRC, the Petitioner herein
is entitled to stay with respect to the operation of the order dated 16.08.2023
and 20.10.2023 passed by the State Commission.
9. Accordingly, prayer sought in this petition is allowed and the
operation of the order dated 16.08.2023 and 20.10.2023 passed by the State
Commission in EA No. 20/2023 is stayed until the application for interim
stay filed in appeal i.e. Appeal Execution No. AE/251/2023 pending before
NCDRC is heard and adjudicated upon.
10. It is made clear that the final disposal of the stay application before
the NCDRC will be uninfluenced by the observations made in this order.
11. With the aforesaid directions, the present petition is disposed of along
with pending application.
12. The digitally signed copy of this order, duly uploaded on the official
website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated
as a certified copy of the order for the purpose of ensuring compliance. No
physical copy of order shall be insisted by any authority/entity or litigant.
MANMEET PRITAM SINGH ARORA, J
DECEMBER 20, 2023/rk/ms
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