Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Judgment pronounced on: 9 December, 2015
+ E.A. No.455/2012, E.A. No.62/2013 &Crl. M.A.
No.13557/2013 in EX.P. 72/2010
M/S TRG INDUSTRIES P LTD ..... Decree Holder
Through Mr.Vivekanand, Adv.
versus
M/S MACHINERY PARTS CORPORATION & ANR
..... Judgment Debtors
Through Mr.Hitender Kapur, Adv. with
Mr.Sagar Chawla, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present execution petition has been filed by the decree
holder against the judgment-debtors for execution of judgment and
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decree dated 28 September, 2007 for principle amount of
Rs.42,08,469/- along with interest on the principle amount @ 15% per
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annum w.e.f. 2 March, 2002 till the date of payment.
2. After passing the judgment and decree, the judgment debtor
challenged the same before the Division Bench by filing of an appeal
being RFA (OS) No.1/2008.
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3. While issuing notice in the appeal vide order dated 23 January,
2008 the Division Bench directed the judgment debtor No.1 to deposit
50% of decreetal amount within four weeks from the date of the said
order and stayed the operation of the judgment and decree till the
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next date i.e. 23 April, 2008.
Ex.P. No.72/2010 Page 1 of 17
4. The judgment-debtor No. 1 did not deposit the 50% decreetal
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amount and on the next date i.e. 23 April, 2008, the order dated 23
January, 2008 was modified at the request of the judgment-debtor No.
1 that he be given possession of the machinery as Receiver of the
Court and against that he would continue paying directly to the decree
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holder a sum of Rs.1,00,000/- per month by 7 day of every month
from 7th July 2008 on wards till further orders. It was also made clear
that if the order is violated by the judgment-debtor No.1, the decree-
holder would be at liberty to seek coercive action against the
judgment-debtor No.1 including the sale of the machinery. The same
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order was reaffirmed in orders dated 12 August, 2008 and 16
March, 2009.
5. The judgment-debtor No.1 stopped making payments after May,
2009 and did not make per month payment of Rs.1,00,000/- as per
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order dated 23 April, 2008 and rather filed application for
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modification of the order dated 23 April, 2008.
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6. The Division Bench by order dated 18 November, 2009
disposed of all applications of the judgment debtor No. 1 stating that
the orders passed by the Court have not been complied with and as
such the order staying operation of decree was recalled and the decree
holder was given liberty to initiate appropriate proceedings for
execution of the decree. Hence, execution application is filed as per
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orders dated 23 April, 2008 and 18 November, 2009 of the Division
Bench.
7. It is an undisputed fact that part payment of Rs.11,00,000/- @
Rs.1,00,000/- per month from July, 2008 to May, 2009 has been
received towards satisfaction of the decree/ order.
Ex.P. No.72/2010 Page 2 of 17
8. On the date of execution, as per calculation of the decree-holder
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on 5 March, 2010 after deducting Rs.11,00,000/- the balance was
due for sum of Rs.82,02,142.55/-.
9. The decree-holder has sought the prayer to attach and direct the
judgment-debtor No. 1 to give back possession of and to appoint Local
Commissioner to take possession of the Russian Make Motor Grader
DZ 180 with all accessories and parts thereof, which is the subject
matter of the suit and decree, the possession of which was taken by
the judgment-debtor No.1 from the decree-holder as Receiver of the
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Court in terms of order dated 23 April, 2008 of the Division Bench
and the Local Commissioner be also directed to sell the said Motor
Grader in the open Market with help and in consultation with the
decree-holder for realization of the decreetal amount and for
realization of balance amount and attach the funds of the Judgment-
Debtor No.1 in Bank Account Number 0045-101-000-3868 with
Syndicate Bank Branch, 3478-34-79 Nicholson Road, Mori Gate, Delhi
to the extent of Rs.82,03,143/-.
The balance decreetal amount after adjustment of sale proceeds
of the Grader in question be ordered to be released in favour of the
decree-holder by directing the Manager of the Bank to prepare the pay
order in the name of the decree-holder of the aforesaid amount as
stated above and send to this Court for payment to the decree holder.
The attachment was also sought of all office building/business of
judgment-debtor No.1 situated at 2778/16, Rajasthan Motor Market,
Hamilton Road, Mori Gate, Delhi-06 and also the articles, furniture,
fixtures, and machineries lying therein and order for sale for the
purpose of realization and payment of the decreetal amount along with
costs to the decree-holder through the process of the Court. The
Ex.P. No.72/2010 Page 3 of 17
objections under Section 47(1) and (3) of CPC on behalf of judgement-
debtor No.1 against the execution petition has been filed being E.A.
No.455/2012.
10. In the objection, it was stated that the present execution is
liable to be dismissed as the same has been wrongly filed by M/s TRG
Industries (P) Ltd. In fact, the decree was passed in favour of M/s
BRA-TRG-BHARAT Joint Venture Partnership Company through one of
its constituent partner M/s TRG Industries (P) Ltd. The present decree-
holder has no locus standi to file the present execution petition in its
own name. The same is barred under Section 69 of The Partnership
Act, 1932 as the decree-holder joint venture partnership company M/s
BRA-TRG-BHARAT is an unregistered partnership Company and thus
cannot file any proceedings against the third party.
11. In order to establish his objection, judgment-debtor No.1 has
submitted that during cross examination of PW-1 in the suit, it has
been categorically stated by the witness that ''JV is a partnership firm
of three companies viz, B R Arora & Associates (P) Ltd., M/s Bharat
Infrastructure & Engineering Pvt Ltd and the plaintiff company''. It is
further stated by PW-1 that "There is no document of registration of
the firm issued by the Registrar of firms since it was for a specific
purpose".
12. PW-1 in his cross examination has also admitted that the invoice
for sale of machinery was raised by judgement-debtor No. 1 herein, in
favour of joint venture company. It is further admitted by the said
witness that payment for the machinery was also made by the joint
venture company.
Ex.P. No.72/2010 Page 4 of 17
13. After filing the response to the objections, decree-holder filed an
application being E.A.No.62/2013 under Section 151 read with Order
21 CPC on behalf of the decree holder for passing certain directions.
14. It is stated in the application that the judgment-debtor No.1
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appeared on service of warrants in the Court on 7 February, 2012,
after about one year of the order of the Supreme Court and himself
offered to hand over the machine in question to the decree holder for
sale towards realization of the decreetal amount. The possession of
the machine was delivered by this Court through and in presence of
the Local Commissioner in dilapidated condition as shown in the
photographs, which have been annexed as Annexure DH-5 collectively
filed along with EA No.773/2012. The machine was also got checked
from mechanic and his report about the condition of the machine has
been annexed as Annexure DH-6 filed along with EA No.773/2012.
Since the date of taking over the possession of the Grader/machine in
question, it is stored in godown and compelling the decree holder to
incur the expenses on godown rent and watch and ward of the
machine.
15. Despite repeated advertisements given in the Newspapers such
as Times of India, Economics Times, Amar Ujala and also email to the
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agency named by the judgment debtor No.2 in Court on 7 February,
2012, which has been annexed as DH-6 with EA No.773/2012, in
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compliance of order dated 7 February, 2012 of this Court, the decree
holder had received only few bids/quotations from a few persons for a
sum of Rs. 1,25,000/- to Rs. 1,45,000/-.
16. The decree-holder had moved an application being EA.
No.773/12 for appointment of Local Commissioner for sale of the
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machine but the same was declined by this Court by order dated 19
Ex.P. No.72/2010 Page 5 of 17
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October, 2012 in view of order dated 7 February, 2012 giving liberty
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to the decree holder to try to sell the machine in the market. On 20
November, 2012 the judgment-debtor No.1 was also directed to fix
the date and time with the decree-holder for seeing the machine in
question and cooperate with the decree-holder in finding the best price
for the machine. The judgment-debtor No.1 did not approach the
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decree-holder at all till date despite the direction dated 20
November, 2012, despite the fact that the decree-holder had reminded
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the judgment-debtor No.1 vide its letter dated 13 December, 2012
sent to the judgment debtor and his counsel by registered post and
duly received by them which have been annexed as Annexure EA2/2.
17. The decree-holder is incurring monthly expenses of about
Rs.20,000/- on the storage and watch and ward of the machine and
further delay would result into further loss to the decree holder
without any hope of getting reimbursed any of the amount spent on
keeping the machine let alone any recovery towards the decreetal
amount. The prayer in this application was to allow the decree holder
to sell/dispose of the machine in question.
18. In reply, it is stated that after the judgment-debtor No.1 got the
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machine repaired as per the order dated 23 April,2008, the machine
thereafter started working in perfect condition and was also hired by
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M/s RG Builders from 17 January, 2011 to 20 March, 2011. It was
denied that the machine in question was in a dilapidated condition at
the time when it was handed over to decree-holder.
The Local Commissioner has placed on record a video recording.
The same is perused by this Court. The report filed by the decree-
holder is incorrect. The machine in question was being used by the
decree-holder after taking possession and thereafter the machine has
Ex.P. No.72/2010 Page 6 of 17
been badly damaged due to rough use and no maintenance. The said
machine has been kept in open space with no covers therefore due to
rains and dust the machine has got rusted and the value has
diminished due to the above said damages caused by the decree
holder.
19. The judgment-debtor No. 1 has also filed application under
Section 340 CrPC, read with Section 191/199 of IPC against Sh.T.R.
Gupta being Crl. MA No. 13557/2013 on the grounds that Sh. T.R.
Gupta deliberately, knowingly and malafidely made false statement on
oath in his reply accompanied by affidavit wherein it is stated that the
suit was not filed and decree was not passed in favour of joint venture
or a partnership firm. It was further submitted that the suit was filed
by M/s TRG Industries P. Ltd. and decree was passed in favour of M/s
TRG Industries P. Ltd. as it is apparent from the plaint filed and
registered as suit No. 2041/2002, that suit was filed by M/s TRG
Industries P. Ltd. as one of the constituent partner of M/s BRA TRG
BHARAT and not in its individual capacity.
20. Counsel appearing on behalf of judgment debtor No.1 submitted
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and relied upon Ex.PW-1/10 whereby the purchase order dated 23
February, 2002 was issued in favour of judgment-debtor No.1. It is
apparent from Ex. PW-1/10 that the order for supply of machine was
placed by M/s BRA TRG BHARAT JV and the machine was delivered to
M/s BRA TRG BHARAT JV, but Sh. T.R. Gupta in order to obtain
favorable order gave false evidence in reply to the objections filed by
the judgment-debtor No.1 and is thus liable to be prosecuted under
Section 340 CrPC.
21. I have heard the submissions of the parties and have also gone
through the record. The main allegation made in the objection are
Ex.P. No.72/2010 Page 7 of 17
even contrary to the contents the plaint and the judgment and decree
in question as well as the defense of the judgment debtor, M/s
Machinery Parts Corportion, who was defendant No.3 in the suit. The
suit decree was not passed in favour of a joint venture or a
partnership firm as alleged
22. The suit was filed by the decree-holder M/s TRG Industries P.
Ltd. The decree has been passed in favour of decree-holder and a copy
of the same has been filed with the execution petition. The judgment
and decree are to be read as a whole and the decree holder craves
leave to refer to the judgment and decree under execution, which
would demolish the allegation made and objections raised by the
judgment-debtor No.1
23. The relevant extract of the plaint particularly paras 1, 2, 8, 23
and 24 are reproduced herein below -
“1. That the plaintiff is a company incorporated under
the provisions of Indian Companies Act and has been doing
the construction work for the last so many years. Sh. T.R.
Gupta is the Chairman-cum-Managing Director of the
plaintiff and power of attorney holder of plaintiff company,
and by virtue of power of attorney Sh. T.R. Gupta is
authorized and competent to sign and verify the pleadings,
to file and institute the suit, to engage the counsel and to do
all other acts and deeds that may be necessary for due
prosecution of the case.
2. That a joint venture named and styled as BRA-TRG
BHARAT(JV) was formed amongst (i) M/s BR Arora
Associates (P) Ltd. now known as M/s B&R INFRA Techno(P)
Ltd. A-11 G.K. Enclave-II New Delhi-48, the plaintiff and (ii)
M/s TRG Industries (P) Ltd. E-461 Greater Kailash-II, New
Delhi -48 and (iii) M/s Bharat Infrastructure & Engineering
(P) Ltd. 601, Shree Amba Shanti Chamber, Off Church
Road, Opp. Hotel Leela Andheri East,Mumbai-400059, for
execution of the work of construction of 44 to 59.5 Km
Lucknow-Kanpur Road, near Unnao, UP awarded to the joint
Ex.P. No.72/2010 Page 8 of 17
venture by National Highway Authority of India. The
awarded value of the work is about Rs.43 crores and the
period for completion is 20 months. The plaintiff through its
chairman cum Managing Director have been authorised by
the other two constituents of the Joint Venture to incur
expenses, execute the work and do all the other acts and
deeds including the legal proceedings relating to and
connecting with execution of the work exclusively for and on
behalf of the Joint Venture vide Power of Attorney dated
7.02.2002.
8. The plaintiff states that the balance price of the
Grader was paid by the plaintiff vide pay order dated
2.3.2002 for Rs.27,08,469/-. Thus the plaintiff paid a total
sum of Rs.42,08,469/- to the defendants, through the
defendant No.3 towards the total price and services as per
purchase order dated 23.2.2002. The Grader was not
supplied on the due date and a penalty of Rs.60,000/- was
imposed or this lapse with however as a special case at the
request of the defendants the penalty was reduced
to only for Rs.30,000/- in view of the position
explained by the defendant No.3 in its letter dated
13.3.2002.
23. That the defendant No.1 being the manufacturer and
principal, the defendant No.2 being supply agent of the
defendant No.1 in India, and the defendant No.3 being the
supply, sale and service agent of the defendants 1 and 2, all
the defendants are jointly and severally liable to pay the
suit/claim amount to the plaintiff.
24. That the defendants are jointly and severally liable to
pay to the plaintiff following amounts to the
plaintiff:
a) Refund of the Price of the Grader paid Rs.42,08,469/-
b) Interest on Rs.42,08,469/- @ 18% w.e.f 2.03.2002 till
the date of payment which till the date of filling the
suit on 10.11.2002came to Rs.5,32,332/-
c) Loss on account of the hire charges of Grader arranged
for the work @ Rs.2.25 lakhs per month from May 2002
to the date of refund of the amount of the price paid
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which till 10 November, 2003 comes to
Rs.12,58,065/-
Ex.P. No.72/2010 Page 9 of 17
Total Rs.59,98,866/-
Prayer Clause:
It is, therefore, most respectfully prayed that the Hon’ble
Court be pleased to pass a decree for recovery of
Rs.59,98,866/- with pendente lite and future interest @18%
p.a. on the suit amount from the date of suit till date of
payment and costs of the suit in favour of the plaintiff and
against the defendant, jointly and severally.“
24. The defendant No. 3 in the suit/ the judgment-debtor No.1 has
never challenged either the locus or competency of the decree holder
namely M/s TRG Industries P. Ltd. to file the suit nor any such
objection as alleged now was ever made and raised by the defendant
No.3/objector/ judgment debtor in the suit. Rather in its written
statement, with reply to EA No.455/2012, the judgment-debtor No.1
had admitted the fact that performa invoice was sent by it to the
plaintiff and the plaintiff had made payment of the motor grader to
him. Thus, the issue raised now in execution petition is beyond the
pleadings.
25. It is also a matter of fact that even in appeal being RFA (OS)
No.1/2008 against the judgment and decree this issue was not
pressed/argued by the appellant/judgment debtor though taken for
the first time in grounds of appeal by the judgment debtor as an after
thought and as such stands rejected. Thus, this issue as raised now is
an after-thought as per the law laid down by the Supreme Court in the
case of Saraswati Devi Gupta v. Sudha Rani, 2005 (10) SCALE
282.
26. It is admitted position from the grounds (f) of the appeal, the
judgement debtor No.1 has raised the objection which reads as
under:-
Ex.P. No.72/2010 Page 10 of 17
“(f) Because the appellant submits the suit has not been
signed, verified and filed by a duly authorized person. The
order for purchase of Grader was placed by one M/s BRA-
TRG-Bharat (JV) a joint venture of three companies. The
invoice for sum of Rs.42,12,000/- was raised by the
appellant upon the joint venture. However, the Power of
Attorney dated 07.02.02 (Ex.PW1/4) has been executed
only two partners of JV and not by third partner i.e. M/s
TRG Industries (P) Ltd. in favour of Mr. T.R.Gupta in his
individual capacity. Mr. T.R. Gupta is claiming that M/s TRG
Industries (P) had also executed another power of attorney
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(PW1/1) dated 8 December, 2001 prior to the date of
execution of power of attorney dated 7.7.02 by only two JV
Partner. The common seal of the M/s TRG Industries (P)
Ltd. is alleged to have been affixed on 08.12.01 on Ex.
PW1/1 whereas its photocopy has been notarized on
21.12.2001 by the Notary Public but when was its original
notorized, if at all same was done, is not disclosed. Thus, it
does not satisfy twin condition of Section 85 of Evidence Act
so as to draw a presumption of due execution of power of
attorney. The witness of the respondent No.1 failed to
produce the minute book of meeting of two joint venture
partner. Hence, Mr.T.R. Gupta had no authority to sign,
verify and file the suit on behalf of M/s. TRG Industries (P)
Ltd. As had been held by two Division Bench judgement of
this Hon’ble Court in the case of Electric Construction and
Equipment Co. Ltd. v. En. Jagjit Electric Work, 1986 (30)
DLT 525 and also Birla DLW Ltd. v. Prem Engg. Work, 1999
(I) AD (Delhi) 729.
It is further submitted that the purported power of
attorney dated 07.02.07 (Ex.PW1/4) executed by two
partners of JV and not by third JV partner authorized only
Mr. T.R. Gupta in his individual capacity, but the suit was
filed by M/s TRG Industries (P) Ltd. who has not been
authorized by the joint venture to file the suit. Moreover,
the respondent No.1’ witness admitted in his cross
examination that the suit has been filed by Mr.T.R. Gupta on
behalf of M/s. TRG Industries (P) Ltd. All subsequent
correspondence had been made by M/s BRA-TRG-Bharat
(JV) as a legal entity and not by M/s. TRG Industries (P) Ltd.
i.e. respondent No.1 herein. It is further submitted that one
of the entity of the joint venture has no independent right to
Ex.P. No.72/2010 Page 11 of 17
sue on behalf of JV. More so, when the respondent No.1
company could not prove issuance of alleged power of
attorney by joint venture as no minute book has been
produced at the time of cross examination.
Moreover, all the correspondences in respect of
purchase of Grader and subsequent alleged defect were
exchanged between the JV and not the respondent No.1
company. It is further submitted that Sh. Harsh Mahajan,
witness of the respondent No.1 company during his cross
examination admitted that I have not brought the minute
book of M/s Bharat Infrastructure and Pvt. and M/s B.R.
Arora and Associates Pvt. Ltd. containing resolution
authorizing Mr.T.R. Gupta to act in accordance with POA
dated 02.02.02 Ex.PW1/4 and that I have been given
special power of attorney dated 02.08.06 by respondent
No.1 company and common seal of the respondent No.1
company has not been affixed on POA Ex. PW1/3. He
stated that he did not have the letter at that time which
authorized him to act on behalf of JV.
It is submitted that Order XXIX CPC clearly says that
the person signing the suit on behalf of the Corporation
should be duly authorized.
xxx xxx xxx xxx
It is further submitted that the respondent No.1
company has neither filed any certificate of incorporation of
the respondent No.1 nor partnership deed of JV. It is
further submitted that Sh. Harish Mahajan, witness of the
respondent company during the cross examination admitted
that “I have not brought the certificate of incorporation of
the respondent company. This document is not on record.
Joint venture is a partnership firm of three companies viz.
B.R. Arora and Associates Pvt. Ltd., M/s Bharat
Infrastructure and Engineering (P) Ltd. and the respondent
No.1 company. There is no document of registration of firm
issued by the Registrar of Firm since it was for specific
purpose”.
The entire transaction was between the joint venture
(JV of three companies) and the resplendent. It is only the
JV who was entitled to file the present suit and not the
respondent No.1. The partnership of JV neither proved nor
Ex.P. No.72/2010 Page 12 of 17
registered within the meaning of Section 69 of Indian
Partnership Act, 1932 and therefore, no suit could have
been filed by unregistered partnership firm. The Supreme
Court in the case of M/s. New Horizon Ltd. vs. Union of
India, 1995 (1) SCC 478 (para 27) has held, that the joint
venture of companies is in the nature of partnership.
xxx xxx xxx xxx”
27. The appeal filed by judgment-debtor No.1 being RFA (OS)
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No.1/2008 has been dismissed vide order dated 26 March, 2012 by
the Division Bench. The judgment and decree on the issue now raised
by the judgment-debtor No.1 has already attained finality. The order
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passed by Division Bench on 26 March, 2012 has been reproduced
here as under:-
“1. After some arguments, confronted with Ex. PW-1/7
i.e. the quotation sent by the appellant to the first
respondent i.e. the plaintiff and the respondents’ response
Ex.PW-1/10 coupled with Ex.D-2/1 and Ex.D-2/3 i.e.
documents showing import by Hamelia and subsequent sale
to the appellant, learned counsel for the appellant concedes
that the liability has been rightly fastened against the
appellant in the suit filed by the respondent No.1 and
conceding further that on the quantum of the decree, the
appellant does not dispute the findings returned, learned
counsel states that with respect to the observations of the
learned Single Judge in paragraph 42 of the impugned
decision, which may impact appellant’s claim against
respondent Nos. 2 and 3, the appeal may be disposed of
observing that said observations be not read as absolving
said respondents of their liability qua the appellant, if
appellant sues said respondents.
2. Suffice would it be to state that the undisputed position is
that the appellant purchased the machine in question,
before selling the same to the first respondent, from
Hamelia Enterprises, which in turn had imported the
machine from M/s CHZK Dormesh Services. The machine
admittedly being without the requisite parts, failed to
perform even for a day, the requisite operations which the
machine had to perform and thus it would be open for the
Ex.P. No.72/2010 Page 13 of 17
appellant to sue for damages either Hamelia Enterprises or
CHZK-Dormesh Services and further needless to state, if the
suit is filed, all permissible defences would be available to
the said two juristic entities.
3. As regards the observations in paragraph 42 of the
impugned decision, they have to be read in the context of
respondent No.1, as plaintiff, impleading the appellant, M/s
Hamelia Enterprises and M/s CHZK- Dormesh Services as
defendants in the suit; apparently for the reason respondent
No.1 did not want to take a chance on the anticipated
defences as to which of the three parties was liable to it.
Said observations have therefore to be understood in the
context of the pleadings of the parties.
4. The appeal is accordingly dismissed as not pressed. If
appellant were to file a suit against Hamelia Enterprises or
CHZK- Dormesh Services, all pleas would be available to the
appellant in the plaint and likewise all pleas and defences
would be available to the said to parties in the written
statement which they may file.
5. No costs.”
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28. It appears from the order dated 26 March,2012 that the above
mentioned appeal was withdrawn by the judgment-debtor-1 by
conceding its liability where it was also admitted that the liability was
rightly fastened against the judgment debtor No.1 in the suit filed by
decree-holder without any condition.
29. The joint venture was not the plaintiff and M/s TRG Industries P.
Ltd., one of the constituent of joint venture was the sole and only
plaintiff, thus it is immaterial as whether joint venture consortium
amounts to partnership and if so, if joint venture files any proceedings
is it required to be registered under Partnership Act. There is no law
or precedent that consortium of two or more companies (JV) formed
for a particular business amounts to strictly a partnership firm and is
required to be registered under Section 69 of the Partnership Act.
Ex.P. No.72/2010 Page 14 of 17
30. In EA No.455/2012 objections under reply was filed on or about
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5 July, 2012 and notice of this EA was ordered to be issued only by
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order dated 20 February, 2013, whereas the order of attachment of
machinery in question and sale thereof had been passed and Court
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had proceeded with execution of the decree effectively on 7
February, 2012. In view of the law laid down by the Supreme Court in
the case of Barkat Ali Vs. Badrinarayan, (2008) 4 SCC 615 paras 9
and 10, once execution is set in motion by ordering attachment and
sale under Order 21 Rule 23 CPC and till then no objections are filed,
the objections to the execution by judgment-debtor No.1 subsequent
to order of attachment and sale is not sustainable and is hit by
principle of constructive res judicata. The judgment debtor is seeking
this Executing Court to go beyond the decree, which is not permissible
in law even under Section 47 of CPC. Reference in this regard amongst
others is made to the judgment of Supreme Court in the case of
Haryana Vidhyut Parsaran Nigam Ltd. v. Gulshan Lai, 2009 (7)
Scale 543 para 20 as judgment and decree cannot be re opened and
correctness thereof cannot be put to question.
31. The fact of the matter is that judgment debtor No.1 has not
disputed the fact that the decree was passed against the judgment
debtors. There is a force in the submission of Mr. Vivekanand, learned
counsel appearing on behalf of decree holder that the execution court
cannot beyond the decree. The joint venture company has not filed
any execution as they have no interest even otherwise, it is the
responsibility of the decree holder, if any, dispute raised by the other
joint venture company as alleged by the judgment debtor No.1. As far
as judgment debtor No.1 is concerned, the decree is to be executed as
per judgment and decree. The judgment debtor No.1 cannot absolved
Ex.P. No.72/2010 Page 15 of 17
itself by raising the false plea. It has only to pay the decreetal amount
to the party who has filed the suit for recovery of transaction. Even
otherwise, no plea was taken by judgment debtor No.1 in its written
statement. The appeal was also withdrawn while admitting the
liabilities. Therefore, there is no valid plea that the Joint Venture
Company has not filed the execution. The Court has to see the
contents of the plaint and the prayer. The judgment debtor did not
raise any objections in the written statement. It was raised in appeal,
where it was given up.
32. It is true that always the judgment debtor would try to prolong
the matter so that decree is not executed by raising frivolous
objections even in the genuine cases. All sorts of mischievous
grounds are taken in order to delay the execution and to confuse the
Court in the present case, also the judgment debtor No.1 is trying to
avoid the payment despite of very reasonable order passed by the
Division Bench at the initial stage of the appeal filed by the judgment
debtor No.1.
33. In view of the above, the objection filed by the judgment debtor
No.1 and all other applications filed by the parties are disposed of.
The prayer in the execution petition is allowed. The decree-holder is
allowed to take the possession of the Russian Make Motor Grader DZ
180 with all accessories and parts thereof. The Local Commissioner
who was earlier appointed is allowed to take possession of Russian
Make Motor Grader DZ 180 and is directed to sell the said Motor
Grader in the open market with help and in consultation with the
decree-holder for realization of the decreetal amount. His fee of
Rs.50,000/- shall be paid by the judgment-debtor within four weeks
from today, subject to deduction of the amount from the decreetal
Ex.P. No.72/2010 Page 16 of 17
amount. For realization of balance amount due towards the decreetal
amount, the Bank Account No.0045-101-000-3868 of judgment-debtor
No.1 with Syndicate Bank Branch, 3478-34-79 Nicholson Road, Mori
Gate, Delhi be attached to the extent of Rs.82,03,143/-.
As far as the attachment of office building/business building of
judgment-debtor No.1 situated at 2778/16, Rajasthan Motor Market,
Hamilton Road, Mori Gate, Delhi-1100 06 is concerned, the articles,
furniture, fixtures and machineries lying therein are attached.
EX.P. 72/2010
th
List for directions/compliance on 12 February, 2016.
(MANMOHAN SINGH)
JUDGE
DECEMBER 09, 2015
Ex.P. No.72/2010 Page 17 of 17
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% Judgment pronounced on: 9 December, 2015
+ E.A. No.455/2012, E.A. No.62/2013 &Crl. M.A.
No.13557/2013 in EX.P. 72/2010
M/S TRG INDUSTRIES P LTD ..... Decree Holder
Through Mr.Vivekanand, Adv.
versus
M/S MACHINERY PARTS CORPORATION & ANR
..... Judgment Debtors
Through Mr.Hitender Kapur, Adv. with
Mr.Sagar Chawla, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present execution petition has been filed by the decree
holder against the judgment-debtors for execution of judgment and
th
decree dated 28 September, 2007 for principle amount of
Rs.42,08,469/- along with interest on the principle amount @ 15% per
nd
annum w.e.f. 2 March, 2002 till the date of payment.
2. After passing the judgment and decree, the judgment debtor
challenged the same before the Division Bench by filing of an appeal
being RFA (OS) No.1/2008.
rd
3. While issuing notice in the appeal vide order dated 23 January,
2008 the Division Bench directed the judgment debtor No.1 to deposit
50% of decreetal amount within four weeks from the date of the said
order and stayed the operation of the judgment and decree till the
rd
next date i.e. 23 April, 2008.
Ex.P. No.72/2010 Page 1 of 17
4. The judgment-debtor No. 1 did not deposit the 50% decreetal
rd rd
amount and on the next date i.e. 23 April, 2008, the order dated 23
January, 2008 was modified at the request of the judgment-debtor No.
1 that he be given possession of the machinery as Receiver of the
Court and against that he would continue paying directly to the decree
th
holder a sum of Rs.1,00,000/- per month by 7 day of every month
from 7th July 2008 on wards till further orders. It was also made clear
that if the order is violated by the judgment-debtor No.1, the decree-
holder would be at liberty to seek coercive action against the
judgment-debtor No.1 including the sale of the machinery. The same
th th
order was reaffirmed in orders dated 12 August, 2008 and 16
March, 2009.
5. The judgment-debtor No.1 stopped making payments after May,
2009 and did not make per month payment of Rs.1,00,000/- as per
rd
order dated 23 April, 2008 and rather filed application for
rd
modification of the order dated 23 April, 2008.
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6. The Division Bench by order dated 18 November, 2009
disposed of all applications of the judgment debtor No. 1 stating that
the orders passed by the Court have not been complied with and as
such the order staying operation of decree was recalled and the decree
holder was given liberty to initiate appropriate proceedings for
execution of the decree. Hence, execution application is filed as per
rd th
orders dated 23 April, 2008 and 18 November, 2009 of the Division
Bench.
7. It is an undisputed fact that part payment of Rs.11,00,000/- @
Rs.1,00,000/- per month from July, 2008 to May, 2009 has been
received towards satisfaction of the decree/ order.
Ex.P. No.72/2010 Page 2 of 17
8. On the date of execution, as per calculation of the decree-holder
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on 5 March, 2010 after deducting Rs.11,00,000/- the balance was
due for sum of Rs.82,02,142.55/-.
9. The decree-holder has sought the prayer to attach and direct the
judgment-debtor No. 1 to give back possession of and to appoint Local
Commissioner to take possession of the Russian Make Motor Grader
DZ 180 with all accessories and parts thereof, which is the subject
matter of the suit and decree, the possession of which was taken by
the judgment-debtor No.1 from the decree-holder as Receiver of the
rd
Court in terms of order dated 23 April, 2008 of the Division Bench
and the Local Commissioner be also directed to sell the said Motor
Grader in the open Market with help and in consultation with the
decree-holder for realization of the decreetal amount and for
realization of balance amount and attach the funds of the Judgment-
Debtor No.1 in Bank Account Number 0045-101-000-3868 with
Syndicate Bank Branch, 3478-34-79 Nicholson Road, Mori Gate, Delhi
to the extent of Rs.82,03,143/-.
The balance decreetal amount after adjustment of sale proceeds
of the Grader in question be ordered to be released in favour of the
decree-holder by directing the Manager of the Bank to prepare the pay
order in the name of the decree-holder of the aforesaid amount as
stated above and send to this Court for payment to the decree holder.
The attachment was also sought of all office building/business of
judgment-debtor No.1 situated at 2778/16, Rajasthan Motor Market,
Hamilton Road, Mori Gate, Delhi-06 and also the articles, furniture,
fixtures, and machineries lying therein and order for sale for the
purpose of realization and payment of the decreetal amount along with
costs to the decree-holder through the process of the Court. The
Ex.P. No.72/2010 Page 3 of 17
objections under Section 47(1) and (3) of CPC on behalf of judgement-
debtor No.1 against the execution petition has been filed being E.A.
No.455/2012.
10. In the objection, it was stated that the present execution is
liable to be dismissed as the same has been wrongly filed by M/s TRG
Industries (P) Ltd. In fact, the decree was passed in favour of M/s
BRA-TRG-BHARAT Joint Venture Partnership Company through one of
its constituent partner M/s TRG Industries (P) Ltd. The present decree-
holder has no locus standi to file the present execution petition in its
own name. The same is barred under Section 69 of The Partnership
Act, 1932 as the decree-holder joint venture partnership company M/s
BRA-TRG-BHARAT is an unregistered partnership Company and thus
cannot file any proceedings against the third party.
11. In order to establish his objection, judgment-debtor No.1 has
submitted that during cross examination of PW-1 in the suit, it has
been categorically stated by the witness that ''JV is a partnership firm
of three companies viz, B R Arora & Associates (P) Ltd., M/s Bharat
Infrastructure & Engineering Pvt Ltd and the plaintiff company''. It is
further stated by PW-1 that "There is no document of registration of
the firm issued by the Registrar of firms since it was for a specific
purpose".
12. PW-1 in his cross examination has also admitted that the invoice
for sale of machinery was raised by judgement-debtor No. 1 herein, in
favour of joint venture company. It is further admitted by the said
witness that payment for the machinery was also made by the joint
venture company.
Ex.P. No.72/2010 Page 4 of 17
13. After filing the response to the objections, decree-holder filed an
application being E.A.No.62/2013 under Section 151 read with Order
21 CPC on behalf of the decree holder for passing certain directions.
14. It is stated in the application that the judgment-debtor No.1
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appeared on service of warrants in the Court on 7 February, 2012,
after about one year of the order of the Supreme Court and himself
offered to hand over the machine in question to the decree holder for
sale towards realization of the decreetal amount. The possession of
the machine was delivered by this Court through and in presence of
the Local Commissioner in dilapidated condition as shown in the
photographs, which have been annexed as Annexure DH-5 collectively
filed along with EA No.773/2012. The machine was also got checked
from mechanic and his report about the condition of the machine has
been annexed as Annexure DH-6 filed along with EA No.773/2012.
Since the date of taking over the possession of the Grader/machine in
question, it is stored in godown and compelling the decree holder to
incur the expenses on godown rent and watch and ward of the
machine.
15. Despite repeated advertisements given in the Newspapers such
as Times of India, Economics Times, Amar Ujala and also email to the
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agency named by the judgment debtor No.2 in Court on 7 February,
2012, which has been annexed as DH-6 with EA No.773/2012, in
th
compliance of order dated 7 February, 2012 of this Court, the decree
holder had received only few bids/quotations from a few persons for a
sum of Rs. 1,25,000/- to Rs. 1,45,000/-.
16. The decree-holder had moved an application being EA.
No.773/12 for appointment of Local Commissioner for sale of the
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machine but the same was declined by this Court by order dated 19
Ex.P. No.72/2010 Page 5 of 17
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October, 2012 in view of order dated 7 February, 2012 giving liberty
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to the decree holder to try to sell the machine in the market. On 20
November, 2012 the judgment-debtor No.1 was also directed to fix
the date and time with the decree-holder for seeing the machine in
question and cooperate with the decree-holder in finding the best price
for the machine. The judgment-debtor No.1 did not approach the
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decree-holder at all till date despite the direction dated 20
November, 2012, despite the fact that the decree-holder had reminded
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the judgment-debtor No.1 vide its letter dated 13 December, 2012
sent to the judgment debtor and his counsel by registered post and
duly received by them which have been annexed as Annexure EA2/2.
17. The decree-holder is incurring monthly expenses of about
Rs.20,000/- on the storage and watch and ward of the machine and
further delay would result into further loss to the decree holder
without any hope of getting reimbursed any of the amount spent on
keeping the machine let alone any recovery towards the decreetal
amount. The prayer in this application was to allow the decree holder
to sell/dispose of the machine in question.
18. In reply, it is stated that after the judgment-debtor No.1 got the
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machine repaired as per the order dated 23 April,2008, the machine
thereafter started working in perfect condition and was also hired by
th th
M/s RG Builders from 17 January, 2011 to 20 March, 2011. It was
denied that the machine in question was in a dilapidated condition at
the time when it was handed over to decree-holder.
The Local Commissioner has placed on record a video recording.
The same is perused by this Court. The report filed by the decree-
holder is incorrect. The machine in question was being used by the
decree-holder after taking possession and thereafter the machine has
Ex.P. No.72/2010 Page 6 of 17
been badly damaged due to rough use and no maintenance. The said
machine has been kept in open space with no covers therefore due to
rains and dust the machine has got rusted and the value has
diminished due to the above said damages caused by the decree
holder.
19. The judgment-debtor No. 1 has also filed application under
Section 340 CrPC, read with Section 191/199 of IPC against Sh.T.R.
Gupta being Crl. MA No. 13557/2013 on the grounds that Sh. T.R.
Gupta deliberately, knowingly and malafidely made false statement on
oath in his reply accompanied by affidavit wherein it is stated that the
suit was not filed and decree was not passed in favour of joint venture
or a partnership firm. It was further submitted that the suit was filed
by M/s TRG Industries P. Ltd. and decree was passed in favour of M/s
TRG Industries P. Ltd. as it is apparent from the plaint filed and
registered as suit No. 2041/2002, that suit was filed by M/s TRG
Industries P. Ltd. as one of the constituent partner of M/s BRA TRG
BHARAT and not in its individual capacity.
20. Counsel appearing on behalf of judgment debtor No.1 submitted
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and relied upon Ex.PW-1/10 whereby the purchase order dated 23
February, 2002 was issued in favour of judgment-debtor No.1. It is
apparent from Ex. PW-1/10 that the order for supply of machine was
placed by M/s BRA TRG BHARAT JV and the machine was delivered to
M/s BRA TRG BHARAT JV, but Sh. T.R. Gupta in order to obtain
favorable order gave false evidence in reply to the objections filed by
the judgment-debtor No.1 and is thus liable to be prosecuted under
Section 340 CrPC.
21. I have heard the submissions of the parties and have also gone
through the record. The main allegation made in the objection are
Ex.P. No.72/2010 Page 7 of 17
even contrary to the contents the plaint and the judgment and decree
in question as well as the defense of the judgment debtor, M/s
Machinery Parts Corportion, who was defendant No.3 in the suit. The
suit decree was not passed in favour of a joint venture or a
partnership firm as alleged
22. The suit was filed by the decree-holder M/s TRG Industries P.
Ltd. The decree has been passed in favour of decree-holder and a copy
of the same has been filed with the execution petition. The judgment
and decree are to be read as a whole and the decree holder craves
leave to refer to the judgment and decree under execution, which
would demolish the allegation made and objections raised by the
judgment-debtor No.1
23. The relevant extract of the plaint particularly paras 1, 2, 8, 23
and 24 are reproduced herein below -
“1. That the plaintiff is a company incorporated under
the provisions of Indian Companies Act and has been doing
the construction work for the last so many years. Sh. T.R.
Gupta is the Chairman-cum-Managing Director of the
plaintiff and power of attorney holder of plaintiff company,
and by virtue of power of attorney Sh. T.R. Gupta is
authorized and competent to sign and verify the pleadings,
to file and institute the suit, to engage the counsel and to do
all other acts and deeds that may be necessary for due
prosecution of the case.
2. That a joint venture named and styled as BRA-TRG
BHARAT(JV) was formed amongst (i) M/s BR Arora
Associates (P) Ltd. now known as M/s B&R INFRA Techno(P)
Ltd. A-11 G.K. Enclave-II New Delhi-48, the plaintiff and (ii)
M/s TRG Industries (P) Ltd. E-461 Greater Kailash-II, New
Delhi -48 and (iii) M/s Bharat Infrastructure & Engineering
(P) Ltd. 601, Shree Amba Shanti Chamber, Off Church
Road, Opp. Hotel Leela Andheri East,Mumbai-400059, for
execution of the work of construction of 44 to 59.5 Km
Lucknow-Kanpur Road, near Unnao, UP awarded to the joint
Ex.P. No.72/2010 Page 8 of 17
venture by National Highway Authority of India. The
awarded value of the work is about Rs.43 crores and the
period for completion is 20 months. The plaintiff through its
chairman cum Managing Director have been authorised by
the other two constituents of the Joint Venture to incur
expenses, execute the work and do all the other acts and
deeds including the legal proceedings relating to and
connecting with execution of the work exclusively for and on
behalf of the Joint Venture vide Power of Attorney dated
7.02.2002.
8. The plaintiff states that the balance price of the
Grader was paid by the plaintiff vide pay order dated
2.3.2002 for Rs.27,08,469/-. Thus the plaintiff paid a total
sum of Rs.42,08,469/- to the defendants, through the
defendant No.3 towards the total price and services as per
purchase order dated 23.2.2002. The Grader was not
supplied on the due date and a penalty of Rs.60,000/- was
imposed or this lapse with however as a special case at the
request of the defendants the penalty was reduced
to only for Rs.30,000/- in view of the position
explained by the defendant No.3 in its letter dated
13.3.2002.
23. That the defendant No.1 being the manufacturer and
principal, the defendant No.2 being supply agent of the
defendant No.1 in India, and the defendant No.3 being the
supply, sale and service agent of the defendants 1 and 2, all
the defendants are jointly and severally liable to pay the
suit/claim amount to the plaintiff.
24. That the defendants are jointly and severally liable to
pay to the plaintiff following amounts to the
plaintiff:
a) Refund of the Price of the Grader paid Rs.42,08,469/-
b) Interest on Rs.42,08,469/- @ 18% w.e.f 2.03.2002 till
the date of payment which till the date of filling the
suit on 10.11.2002came to Rs.5,32,332/-
c) Loss on account of the hire charges of Grader arranged
for the work @ Rs.2.25 lakhs per month from May 2002
to the date of refund of the amount of the price paid
th
which till 10 November, 2003 comes to
Rs.12,58,065/-
Ex.P. No.72/2010 Page 9 of 17
Total Rs.59,98,866/-
Prayer Clause:
It is, therefore, most respectfully prayed that the Hon’ble
Court be pleased to pass a decree for recovery of
Rs.59,98,866/- with pendente lite and future interest @18%
p.a. on the suit amount from the date of suit till date of
payment and costs of the suit in favour of the plaintiff and
against the defendant, jointly and severally.“
24. The defendant No. 3 in the suit/ the judgment-debtor No.1 has
never challenged either the locus or competency of the decree holder
namely M/s TRG Industries P. Ltd. to file the suit nor any such
objection as alleged now was ever made and raised by the defendant
No.3/objector/ judgment debtor in the suit. Rather in its written
statement, with reply to EA No.455/2012, the judgment-debtor No.1
had admitted the fact that performa invoice was sent by it to the
plaintiff and the plaintiff had made payment of the motor grader to
him. Thus, the issue raised now in execution petition is beyond the
pleadings.
25. It is also a matter of fact that even in appeal being RFA (OS)
No.1/2008 against the judgment and decree this issue was not
pressed/argued by the appellant/judgment debtor though taken for
the first time in grounds of appeal by the judgment debtor as an after
thought and as such stands rejected. Thus, this issue as raised now is
an after-thought as per the law laid down by the Supreme Court in the
case of Saraswati Devi Gupta v. Sudha Rani, 2005 (10) SCALE
282.
26. It is admitted position from the grounds (f) of the appeal, the
judgement debtor No.1 has raised the objection which reads as
under:-
Ex.P. No.72/2010 Page 10 of 17
“(f) Because the appellant submits the suit has not been
signed, verified and filed by a duly authorized person. The
order for purchase of Grader was placed by one M/s BRA-
TRG-Bharat (JV) a joint venture of three companies. The
invoice for sum of Rs.42,12,000/- was raised by the
appellant upon the joint venture. However, the Power of
Attorney dated 07.02.02 (Ex.PW1/4) has been executed
only two partners of JV and not by third partner i.e. M/s
TRG Industries (P) Ltd. in favour of Mr. T.R.Gupta in his
individual capacity. Mr. T.R. Gupta is claiming that M/s TRG
Industries (P) had also executed another power of attorney
th
(PW1/1) dated 8 December, 2001 prior to the date of
execution of power of attorney dated 7.7.02 by only two JV
Partner. The common seal of the M/s TRG Industries (P)
Ltd. is alleged to have been affixed on 08.12.01 on Ex.
PW1/1 whereas its photocopy has been notarized on
21.12.2001 by the Notary Public but when was its original
notorized, if at all same was done, is not disclosed. Thus, it
does not satisfy twin condition of Section 85 of Evidence Act
so as to draw a presumption of due execution of power of
attorney. The witness of the respondent No.1 failed to
produce the minute book of meeting of two joint venture
partner. Hence, Mr.T.R. Gupta had no authority to sign,
verify and file the suit on behalf of M/s. TRG Industries (P)
Ltd. As had been held by two Division Bench judgement of
this Hon’ble Court in the case of Electric Construction and
Equipment Co. Ltd. v. En. Jagjit Electric Work, 1986 (30)
DLT 525 and also Birla DLW Ltd. v. Prem Engg. Work, 1999
(I) AD (Delhi) 729.
It is further submitted that the purported power of
attorney dated 07.02.07 (Ex.PW1/4) executed by two
partners of JV and not by third JV partner authorized only
Mr. T.R. Gupta in his individual capacity, but the suit was
filed by M/s TRG Industries (P) Ltd. who has not been
authorized by the joint venture to file the suit. Moreover,
the respondent No.1’ witness admitted in his cross
examination that the suit has been filed by Mr.T.R. Gupta on
behalf of M/s. TRG Industries (P) Ltd. All subsequent
correspondence had been made by M/s BRA-TRG-Bharat
(JV) as a legal entity and not by M/s. TRG Industries (P) Ltd.
i.e. respondent No.1 herein. It is further submitted that one
of the entity of the joint venture has no independent right to
Ex.P. No.72/2010 Page 11 of 17
sue on behalf of JV. More so, when the respondent No.1
company could not prove issuance of alleged power of
attorney by joint venture as no minute book has been
produced at the time of cross examination.
Moreover, all the correspondences in respect of
purchase of Grader and subsequent alleged defect were
exchanged between the JV and not the respondent No.1
company. It is further submitted that Sh. Harsh Mahajan,
witness of the respondent No.1 company during his cross
examination admitted that I have not brought the minute
book of M/s Bharat Infrastructure and Pvt. and M/s B.R.
Arora and Associates Pvt. Ltd. containing resolution
authorizing Mr.T.R. Gupta to act in accordance with POA
dated 02.02.02 Ex.PW1/4 and that I have been given
special power of attorney dated 02.08.06 by respondent
No.1 company and common seal of the respondent No.1
company has not been affixed on POA Ex. PW1/3. He
stated that he did not have the letter at that time which
authorized him to act on behalf of JV.
It is submitted that Order XXIX CPC clearly says that
the person signing the suit on behalf of the Corporation
should be duly authorized.
xxx xxx xxx xxx
It is further submitted that the respondent No.1
company has neither filed any certificate of incorporation of
the respondent No.1 nor partnership deed of JV. It is
further submitted that Sh. Harish Mahajan, witness of the
respondent company during the cross examination admitted
that “I have not brought the certificate of incorporation of
the respondent company. This document is not on record.
Joint venture is a partnership firm of three companies viz.
B.R. Arora and Associates Pvt. Ltd., M/s Bharat
Infrastructure and Engineering (P) Ltd. and the respondent
No.1 company. There is no document of registration of firm
issued by the Registrar of Firm since it was for specific
purpose”.
The entire transaction was between the joint venture
(JV of three companies) and the resplendent. It is only the
JV who was entitled to file the present suit and not the
respondent No.1. The partnership of JV neither proved nor
Ex.P. No.72/2010 Page 12 of 17
registered within the meaning of Section 69 of Indian
Partnership Act, 1932 and therefore, no suit could have
been filed by unregistered partnership firm. The Supreme
Court in the case of M/s. New Horizon Ltd. vs. Union of
India, 1995 (1) SCC 478 (para 27) has held, that the joint
venture of companies is in the nature of partnership.
xxx xxx xxx xxx”
27. The appeal filed by judgment-debtor No.1 being RFA (OS)
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No.1/2008 has been dismissed vide order dated 26 March, 2012 by
the Division Bench. The judgment and decree on the issue now raised
by the judgment-debtor No.1 has already attained finality. The order
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passed by Division Bench on 26 March, 2012 has been reproduced
here as under:-
“1. After some arguments, confronted with Ex. PW-1/7
i.e. the quotation sent by the appellant to the first
respondent i.e. the plaintiff and the respondents’ response
Ex.PW-1/10 coupled with Ex.D-2/1 and Ex.D-2/3 i.e.
documents showing import by Hamelia and subsequent sale
to the appellant, learned counsel for the appellant concedes
that the liability has been rightly fastened against the
appellant in the suit filed by the respondent No.1 and
conceding further that on the quantum of the decree, the
appellant does not dispute the findings returned, learned
counsel states that with respect to the observations of the
learned Single Judge in paragraph 42 of the impugned
decision, which may impact appellant’s claim against
respondent Nos. 2 and 3, the appeal may be disposed of
observing that said observations be not read as absolving
said respondents of their liability qua the appellant, if
appellant sues said respondents.
2. Suffice would it be to state that the undisputed position is
that the appellant purchased the machine in question,
before selling the same to the first respondent, from
Hamelia Enterprises, which in turn had imported the
machine from M/s CHZK Dormesh Services. The machine
admittedly being without the requisite parts, failed to
perform even for a day, the requisite operations which the
machine had to perform and thus it would be open for the
Ex.P. No.72/2010 Page 13 of 17
appellant to sue for damages either Hamelia Enterprises or
CHZK-Dormesh Services and further needless to state, if the
suit is filed, all permissible defences would be available to
the said two juristic entities.
3. As regards the observations in paragraph 42 of the
impugned decision, they have to be read in the context of
respondent No.1, as plaintiff, impleading the appellant, M/s
Hamelia Enterprises and M/s CHZK- Dormesh Services as
defendants in the suit; apparently for the reason respondent
No.1 did not want to take a chance on the anticipated
defences as to which of the three parties was liable to it.
Said observations have therefore to be understood in the
context of the pleadings of the parties.
4. The appeal is accordingly dismissed as not pressed. If
appellant were to file a suit against Hamelia Enterprises or
CHZK- Dormesh Services, all pleas would be available to the
appellant in the plaint and likewise all pleas and defences
would be available to the said to parties in the written
statement which they may file.
5. No costs.”
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28. It appears from the order dated 26 March,2012 that the above
mentioned appeal was withdrawn by the judgment-debtor-1 by
conceding its liability where it was also admitted that the liability was
rightly fastened against the judgment debtor No.1 in the suit filed by
decree-holder without any condition.
29. The joint venture was not the plaintiff and M/s TRG Industries P.
Ltd., one of the constituent of joint venture was the sole and only
plaintiff, thus it is immaterial as whether joint venture consortium
amounts to partnership and if so, if joint venture files any proceedings
is it required to be registered under Partnership Act. There is no law
or precedent that consortium of two or more companies (JV) formed
for a particular business amounts to strictly a partnership firm and is
required to be registered under Section 69 of the Partnership Act.
Ex.P. No.72/2010 Page 14 of 17
30. In EA No.455/2012 objections under reply was filed on or about
th
5 July, 2012 and notice of this EA was ordered to be issued only by
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order dated 20 February, 2013, whereas the order of attachment of
machinery in question and sale thereof had been passed and Court
th
had proceeded with execution of the decree effectively on 7
February, 2012. In view of the law laid down by the Supreme Court in
the case of Barkat Ali Vs. Badrinarayan, (2008) 4 SCC 615 paras 9
and 10, once execution is set in motion by ordering attachment and
sale under Order 21 Rule 23 CPC and till then no objections are filed,
the objections to the execution by judgment-debtor No.1 subsequent
to order of attachment and sale is not sustainable and is hit by
principle of constructive res judicata. The judgment debtor is seeking
this Executing Court to go beyond the decree, which is not permissible
in law even under Section 47 of CPC. Reference in this regard amongst
others is made to the judgment of Supreme Court in the case of
Haryana Vidhyut Parsaran Nigam Ltd. v. Gulshan Lai, 2009 (7)
Scale 543 para 20 as judgment and decree cannot be re opened and
correctness thereof cannot be put to question.
31. The fact of the matter is that judgment debtor No.1 has not
disputed the fact that the decree was passed against the judgment
debtors. There is a force in the submission of Mr. Vivekanand, learned
counsel appearing on behalf of decree holder that the execution court
cannot beyond the decree. The joint venture company has not filed
any execution as they have no interest even otherwise, it is the
responsibility of the decree holder, if any, dispute raised by the other
joint venture company as alleged by the judgment debtor No.1. As far
as judgment debtor No.1 is concerned, the decree is to be executed as
per judgment and decree. The judgment debtor No.1 cannot absolved
Ex.P. No.72/2010 Page 15 of 17
itself by raising the false plea. It has only to pay the decreetal amount
to the party who has filed the suit for recovery of transaction. Even
otherwise, no plea was taken by judgment debtor No.1 in its written
statement. The appeal was also withdrawn while admitting the
liabilities. Therefore, there is no valid plea that the Joint Venture
Company has not filed the execution. The Court has to see the
contents of the plaint and the prayer. The judgment debtor did not
raise any objections in the written statement. It was raised in appeal,
where it was given up.
32. It is true that always the judgment debtor would try to prolong
the matter so that decree is not executed by raising frivolous
objections even in the genuine cases. All sorts of mischievous
grounds are taken in order to delay the execution and to confuse the
Court in the present case, also the judgment debtor No.1 is trying to
avoid the payment despite of very reasonable order passed by the
Division Bench at the initial stage of the appeal filed by the judgment
debtor No.1.
33. In view of the above, the objection filed by the judgment debtor
No.1 and all other applications filed by the parties are disposed of.
The prayer in the execution petition is allowed. The decree-holder is
allowed to take the possession of the Russian Make Motor Grader DZ
180 with all accessories and parts thereof. The Local Commissioner
who was earlier appointed is allowed to take possession of Russian
Make Motor Grader DZ 180 and is directed to sell the said Motor
Grader in the open market with help and in consultation with the
decree-holder for realization of the decreetal amount. His fee of
Rs.50,000/- shall be paid by the judgment-debtor within four weeks
from today, subject to deduction of the amount from the decreetal
Ex.P. No.72/2010 Page 16 of 17
amount. For realization of balance amount due towards the decreetal
amount, the Bank Account No.0045-101-000-3868 of judgment-debtor
No.1 with Syndicate Bank Branch, 3478-34-79 Nicholson Road, Mori
Gate, Delhi be attached to the extent of Rs.82,03,143/-.
As far as the attachment of office building/business building of
judgment-debtor No.1 situated at 2778/16, Rajasthan Motor Market,
Hamilton Road, Mori Gate, Delhi-1100 06 is concerned, the articles,
furniture, fixtures and machineries lying therein are attached.
EX.P. 72/2010
th
List for directions/compliance on 12 February, 2016.
(MANMOHAN SINGH)
JUDGE
DECEMBER 09, 2015
Ex.P. No.72/2010 Page 17 of 17