Full Judgment Text
$~68(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 16/2022 & CM APPL. 41701/2022, CM APPL.
41702/2022, CM APPL. 41703/2022
SUNNY BANSAL ..... Appellant
Through: Mr. Ravi Gupta, Sr. Adv. with
Mr. Rishabh Gupta, Mr. Sachin Jain, Mr.
Alok Jha and Mr. Himanshu Yadav, Advs.
versus
SAROJ DEVI SHEHRAWAT ..... Respondent
Through: Mr. Vikas Dudeja and Mr. S.K.
Kaushik, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 21.09.2022
1. The appellant assails, in this Execution First Appeal, order
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dated 17 September 2022, passed by the learned Additional District
Judge (―the learned ADJ‖) as the executing court, whereby the
objections of the appellant – judgment debtor, preferred under Order
XXI Rule 58 of the Code of Civil Procedure, 1908 (CPC), have been
rejected.
2. The aforesaid execution proceedings emanate out of a judgment
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and decree dated 4 December 2012, passed by the learned ADJ in
CS(OS) (Comm) 19/2019.
EX.F.A. 16/2022 Page 1 of 16
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
3. The said judgment and decree was carried in appeal to this
Court by way of RFA 1087/2019, which was disposed of, by a
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coordinate Single Bench of this Court, vide order dated 24 March
2022.
4. Inasmuch as the said order constitutes the judgment and decree
which forms subject matter of the execution proceedings in which the
impugned order has come to be passed, the order merits reproduction,
in extenso , thus:
―1. Pursuant to the last order, learned counsel for the
appellant has obtained instructions. Today, he submits that
instead of pressing the present ' appeal on merits, the appellant
is willing to handover vacant possession of the premises to the
respondent on' or before 30.09.2022 and pay the outstanding
amount in two equal installments by 15.05.2022 by
calculating the amount in terms of the lease agreement
between the parties. The first installment will be paid on or
before 15.04.2022, and the remaining 50% ,amount will be
paid on or before 15.05.2022. He further submits that, till
vacant possession of the premises is handed over to the
respondent, the appellant will, alongwith electricity and water
charges, continue to pay the ' monthly mesne profits, which
for the present, would be paid as per the terms of the lease
agreement.
2. Learned senior counsel for the. respondent submits, on
instructions, that the said proposal is acceptable to the
respondent.
3. The appeal is, accordingly, disposed of, with consent
of the parties, by directing the appellant to file within three
days an affidavit of undertaking before this Court in the
following terms.
(i) The appellant will handover vacant and peaceful
possession of the premises to the respondent on or
before 15.05.2022.
(ii) The appellant will not create any third-party
EX.F.A. 16/2022 Page 2 of 16
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
rights in the property.
(iii) The appellant will pay 50% of the arrears by
calculating the means profits, on or before 15.04.2022,
and the balance 50% on or before 15.05.2022. The said
amount will be calculated on the basis of the lease
agreement, which for the purpose of clarity, is being
noted hereinbelow:
Period Amount
Till 31.12.2018 Rs.1,47,500/-
Till 31.12.2021 Rs. 1,69,000/-
Till 31.03.2022 Rs. 1,85,150/-
(iv) The appellant will, W.e.f. 01.04.2022, pay
―mesne profits @ Rs. l,85,150 per month, till vacant
possession of the property is handed over to the
respondent. The said payment will be made on or
before the 7‗" day of every calendar month.
(v) The payment of the aforesaid amount will be
subject to orders passed in the pending suit before the
learned Trial Court for determination of mesne profits.
5. Learned senior counsel for the respondents, on
instructions, submits that the respondent will render the
necessary compensation to the appellant in pursuing its claim
for compensation from the Delhi Police, for the period during
which the premises were occupied by the Delhi Police, on
account of the COVID l9 Pandemic.
6. In the light of the aforesaid agreement arrived at
between the parties, no further orders are called for in the
appeal, which is disposed of on the basis of the undertaking
given on. behalf of the appellant, as noted hereinabove, and an
affidavit as already directed, will be filed within three days.
7. It has been made clear to the appellant that, in case he
violates any of these conditions, the respondent will not only
be entitled to seek immediate execution of the decree, but will
also be entitled to initiate contempt proceedings against the
appellant.
EX.F.A. 16/2022 Page 3 of 16
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
8. All pending applications stand disposed of. ‖
5. Two execution petitions were filed by the respondent towards
execution of the aforesaid decree and judgment passed by this Court.
6. The first execution petition was for recovery of possession of
the suit property. A bailiff was appointed and possession of the suit
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property was recovered by the respondent on 26 May 2022. To that
extent, therefore, the aforesaid judgment and decree stood executed.
7. A second execution petition, namely, Ex. 255/2022 was
instituted by the respondent for recovery of the amounts awarded by
this Court in the aforesaid judgment and decree towards mesne profits.
8. There is no dispute about the fact that the appellant was indeed
in default of payment of the mesne profits as directed by the aforesaid
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judgment and decree dated 24 March 2022.
9. The appellant, as the judgment debtor in the execution petition,
moved an application under Order XXI Rule 58 of the CPC, which
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stands rejected by the learned ADJ vide the impugned order dated 17
September 2022.
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10. The said order dated 17 September 2022 has been carried in
appeal to this Court by means of the present Execution First Appeal.
EX.F.A. 16/2022 Page 4 of 16
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
11. I have heard Mr. Ravi Gupta, learned Senior Counsel for the
appellant, at considerable length and also perused the material on
record.
12. The submission of Mr. Ravi Gupta is essentially that the
appellant was entitled to four adjustments against the amounts payable
by way of mesne profits.
13. The first adjustment is of security deposit, deposited by the
appellant with the respondent in terms of Clauses 9 and 10 of the lease
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deed dated 19 August 2014, whereunder the suit property was taken
on lease by the appellant from the respondent. The said clauses read as
under:
―9. That the Lessee has deposited with the Lessor a sum of
Rs. 7,50,000/- (Rupees Seven Lacs fifty Thousand Only) as
interest free refundable security deposit for the Demised
Premises vide Demand Draft No. 837460 Dated 08.07.2014
drawn on YES BANK LIMITED, Rohini, New Delhi the
receipt of which is admitted and acknowledged by the Lessor.
This deposit shall be refunded by the Lessor to the Lessee
upon determination of the Lease and upon handing over
vacant peaceful possession of the Demised Premises to the
Lessor.
10. That the Demised Premises shall be used by the Lessee
for Guest-House/Restaurant/Bar purposes and/or for such
other activity as may be permissible under law. The Lessee
while using the Demised Premises shall abide by all lawful
orders or directions issued to the Lessee by the MCD, DDA or
other statutory or local bodies.‖
14. Secondly, Mr. Gupta submits that security deposit of ₹
1,35,000/- was also paid by the appellant towards provision of
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
electricity, as is reflected in the Electricity Bill, raised in respect of the
suit property which has also been placed on record. This payment,
submits Mr. Gupta, was also adjustable against the decretal amount.
15. The third adjustment that Mr. Gupta seeks from the mesne
profits payable as per the impugned judgment and decree passed by
this Court, is with respect to goods which, according to Mr. Gupta,
belong to the appellant and are lying in the premises of the respondent,
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of which possession was recovered by the respondent on 26 May
2022. Mr. Gupta submits that, the value of these goods is in the range
of ₹ 70 lakhs and would more than suffice to meet the amounts
payable by the appellant to the respondent by way of mesne profits.
16. The fourth amount of which Mr. Gupta submits that the
appellant would be entitled to adjustment is conversion charge of ₹
5,90,116/-, stated to have been deposited by the appellant with the
Municipal Corporation of Delhi (MCD), on behalf of the respondent,
towards the suit property.
17. Seeking adjustment of the aforesaid four amounts, the appellant,
as already noted, moved an application before the learned ADJ under
Order XXI Rule 58 of the CPC.
18. The prayer clause in this application reads thus:
―It is, therefore, most respectfully prayed that this Hon‘ble
Court may graciously be pleased to;
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
(i) Stay 'the Execution proceedings against the Applicant /
Objector till the Applicant/ objector is allowed to take back
all his goods from the property of the decree holder and
satisfy the decree after selling all the movable assets (as
presently goods amounting to Rs. 75 lacs are already
attached by the Decree Holder).
(ii) That the actual outstanding rental dues amounts to
Rs.19,68,415/- (without adjusting the security deposit and
conversion charges) instead of Rs.22,10,900/- and the same
is liable to be paid without GST.
(iii) Allow the present application / objections and adjust
the security deposit amounting to Rs.7,50,000/- and
conversion charges amounting to Rs. 5,90,116/- paid by the
Judgement Debtor from the Decretal amount (unilaterally
decided by the Decree Holder);
(iv) Allow the Applicant] objector to disconnect the electric
meter and seek refund of Rs. 60,610/- after adjusting the
outstanding electricity bill or Rs. 74,390/- from security of
Rs. 1,35,000/-
Or/in alternate,
An amount of Rs. 60,610/- be adjusted against the
outstanding dues liable to be paid to the Decree Holder and
the Judgement Debtor shall transfer the Electricity manner in
the name of the Decree Holder ‖
19. Side by side, the appellant moved an application before the
learned ADJ under Section 47 read with Section 151 of the CPC,
whereby the appellant sought stay of the execution proceedings, or, in
the alternative, for permission to take back the goods from the suit
property and satisfy the decree after selling all immovable goods lying
in the suit property.
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20. The learned ADJ has, vide the impugned order dated 17
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Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
September 2022, rejected the appellant‘s objections and directed
issuance of warrants of attachments against the appellant.
21. Mr. Gupta has placed reliance, to support his submissions, on
Order 21 Rule 2 and Section 47 of the CPC. He has also cited the
decision of the Supreme Court in Sultana Begum v. Prem Chand
1
Jain .
Analysis
22. Having heard learned Counsel for the parties and perused the
materials on record, I am of the opinion that neither of the provisions,
on which Mr. Gupta placed reliance, can support the stand that he
seeks to canvass.
23. Sub-rules (1) and (2) of Order XXI Rule 2 read thus:
― 2. Payment out of Court to decree-holder.—
(1) Where any money payable under a decree of any kind
is paid out of Court, [or decree of any kind is otherwise
adjusted] in whole or in part to the satisfaction of the decree-
holder, the decree-holder shall certify such payment or
adjustment to the Court whose duty it is to execute the decree,
and the Court shall record the same accordingly.
(2) The judgment-debtor [or any person who has become
surety for the judgment-debtor] also may inform the Court of
such payment or adjustment, and apply to the Court to issue a
notice to the decreeholder to show cause, on a day to be fixed
by the Court, why such payment or adjustment should not be
recorded as certified; and if, after service of such notice, the
1
(1997) 1 SCC 373
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Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
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decree-holder fails to show cause why the payment or
adjustment should not be recorded as certified, the Court shall
record the same accordingly.‖
24. The import and implication of Order XXI Rule 2(1) and (2) are
obvious. Order XXI Rule 2(1) refers to money payable under a decree
of any kind. It envisages two situations, viz. where (i) any money
payable under a decree of any kind is paid out of court or (ii) a decree
of any kind is otherwise adjusted in whole or in part to the satisfaction
of the decree holder. Both these contingencies envisage satisfaction of
the decree . The first contingency envisages payment of money
payable under a decree. The second contingency envisages adjustment
of the decree in whole or in part to the satisfaction of the decree
holder. In either of these two situations, where the decree is satisfied
by payment or adjustment, Order XXI Rule 2(1) provides that the
decree holder shall certify such payment or adjustment to the
executing court which would record the same.
25. The meaning of the clause is plain. In the case of money decree,
if the money payable under a decree is paid without intervention of the
court, or by agreement between the parties, or the money is otherwise
adjusted in whole or in part, the executing court has naturally to be
informed of such adjustment and to record the same. The clause says
nothing more. It does not give a license to a judgment debtor to suo
motu make adjustments out of amounts payable under a decree, of any
amounts which, according to him, may be owed by the decree holder
to him. No such authority is even obliquely conferred by Order XXI
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
Rule 2(1).
26. Order XXI Rule 2(2) is merely a sequitur to Order XXI Rule
2(1). It states that the judgment debtor may also informed the court of
such payments or adjustment, and apply to the court to issue a notice
to the decree holder to show cause as to why such payments and
adjustment be not recorded as certified. The use of the word ―such‖
makes the intent of Order XXI Rule 2(2) apparent. The payment or
adjustment to which Order XXI Rule 2(2) refers has to relate back to
the payments and adjustment envisaged by Order XXI Rule 2(1) . In
other words, both the sub-rules of Order XXI Rule 2 refer to payment
of money payable under a decree or adjustment of the decree in whole
or in part to the satisfaction of the decree holder.
27. Neither of these provisions, therefore, contemplate a situation in
which the judgment debtor can claim suo motu adjustment of amounts
which, according to him, are payable by the decree holder to him and
which form no part of the judgment and decree under execution,
towards the amounts payable under such judgment or decree.
1
28. Sultana Begum , on which Mr. Gupta relies, while being
distinguishable on facts, fortifies the above interpretation. In that
case, the decree under execution was a compromise decree,
whereunder Prem Chand Jain (hereinafter referred to as ―Jain‖), the
respondent before the Supreme Court, was to vacate the premises
owned by Sultana Begum and hand over possession thereof to her,
with an additional liability to pay rent @ ₹ 3,100/- per month from the
EX.F.A. 16/2022 Page 10 of 16
Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
date of the suit till the date of delivery of possession. Jain did not
vacate the premises or hand over possession to Sultana Begum as
required by the compromise decree. Sultana Begum, thereupon,
moved an application for execution, which Jain resisted.
29. Jain contended that, he had handed over possession of the
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premises to the attorney of Sultana Begum on 31 October 1991, who
allowed Jain to remain in possession of as a licensee, on payment of
licence fee of ₹ 5,000/- per month. Said licence fee, contended Jain,
had already been paid by him to the attorney of Sultana Begum, who
had issued a receipt in that regard.
30. It was in these circumstances that, the Supreme Court held that
the amount of ₹ 3,100/- per month, which was payable by Jain to
Sultana Begum under the compromise decree was subsumed in the
licence fee of ₹ 5,000/- payable every month by Jain to the attorney of
Sultana Begum.
31. Clearly, the facts of that case cannot even be remotely
analogised to those of the present.
32. The decree required Jain to pay, to Sultana Begum, ₹ 3,100/-
per month. Instead, Jain paid, to Sultana Begum, ₹ 5,000/- per month
albeit as a licencee, consequent to the decree. As against that, in the
present case, Mr. Gupta would seek, suo motu , to claim adjustment,
against the decretal amount payable by the petitioner to the
respondent, of other amounts payable by the respondent to the
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
petitioner, having no relation to the decree at all and which could not
be regarded as even been remotely in the contemplation of the
judgment and decree under execution.
33. Coming, next, to Section 47 of the CPC, the provision, in my
opinion, has no application at all. It reads as under:
― 47. Questions to be determined by the Court executing
decree .—(1) All questions arising between the parties to the
suit in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree
and not by a separate suit.
(3) Where a question arises as to whether any person is or
is not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.
Explanation 1— For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom
a suit has been dismissed are parties to the suit.
Explanation II—(a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall
be deemed to be a party to the suit in which the decree is
passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be
deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section. ‖
34. Section 47 merely states that all questions arising between the
parties to a suit in which the decree was passed, relating to the
execution, discharge or satisfaction of the decree shall be determined
by the court executing the decree.
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
35. Mr. Gupta‘s submission, as specifically vocalised by him, is
that the plea of the appellant, regarding the satisfaction of the
judgment and decree passed by this Court to the extent of the security
deposit and other amounts payable by the respondent to the appellant,
was required to be considered by the executing court separately under
Section 47 of the CPC.
36. That exercise, he submits, has not taken place till date.
37. To my mind, the argument is misconceived.
38. Section 47 (1) refers to questions arising between the parties
relating to the execution, discharge or satisfaction of the decree. In
other words, if the decree were to envisaged adjustment of any amount
payable by the judgment debtor to the decree holder against the
amounts payable under the decree, and if the said amount was paid,
then, to that extent, the discharge or satisfaction of the decree would
be considered by the executing court.
39. The provision does not contemplate a plea being raised by the
judgment debtor that, against the amounts payable by the judgment
debtor to the decree holder under the decree, amounts which are owed
by the decree holder to the judgment debtor should be adjusted, or
require that question to be adjudicated by the executing court. This is
for the simple reason that the decree does not envisage or contemplate
any such adjustment.
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
40. The adjustments that Mr. Gupta seeks to effect, from the
amounts payable by his client to the respondent under the decree, are
adjustments to which the appellant suo motu believes himself to be
entitled. The decree passed by this Court does not say so. The decree
has not been defied or amended in any manner. The amounts payable
by the appellant to the respondent have, therefore, to be paid upfront.
Non-payment has necessarily to invite the consequence which Order
XXI of the CPC envisages, which includes warrants of attachment and
their inevitable sequelae.
41. Though the aforesaid findings answer all the submissions
advanced by Mr. Gupta, I may also state that, with respect to the
goods which are stated to be lying in the respondent‘s premises, Mr.
Vikas Dudeja, learned Counsel for the respondent, has submitted that,
according to his client, the goods belonged to the respondent and not
to the appellant.
42. Mr. Gupta has drawn my attention to Clauses 5 and 21 of the
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Lease Deed dated 19 August 2014, executed in respect of the suit
property. The clauses read thus:
―5. That since the Lessee is taking the Demised Premises
for running a Guest House/Restaurant Bar and for the purpose
would making huge expenditure for making the Demised
Premises suitable for the purpose and also for the purpose
would be incurring huge expenses for doing the interior work
and for putting in expensive and ultra modern furniture and
fittings and fixtures, it is understood between the parties that
if the lessee keeping on paying the agreed rent as per the
terms of this Lease, the Lessor shall not be entitled to
determine this Lease during the period for it is granted.‖
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01
*
21. That the Lessee shall, on the expiry of the Lease
period, hand over the vacant possession of the Demised
Premises to the Lessor in goods condition subject to normal
wear and tear arising from the day to day use or from such
force majeure causes, which are beyond the control of the
Lessee viz. fire, earthquake, floods, acts of terrorism etc.‖
43. Neither of these clauses indicate that the furniture, fixture and
fittings which the appellant got installed in the suit property belonged
to the appellant or that the appellant is entitled either to dismantle or
take away the said furniture and fittings and sell them towards
satisfaction of the decree. The said plea, therefore, is also, prima
facie , bereft of merit.
44. The learned ADJ has dealt with the submission of the appellant
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thus, in this impugned order dated 17 September 2022:
―As per record, the Hon'ble High Court of Delhi has not
passed any orders thereby giving benefit of adjustment of
security amount or any other outstanding amount to the JD.
As per law, the set off or counter claim is required to be
mentioned in the decree itself. This court being the court of
execution cannot go behind the decree and has to consider
only the amount which has been paid by the JD to the DH
through this court. Considering the record, facts and
circumstances of the case and law, I found no grounds to stay
the warrant of attachment as the decreetal amount has not
been paid by the ID to the DH so far. The objections
accordingly are dismissed.‖
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45. I see no reason to interfere with the impugned order dated 17
September 2022.
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By:KAMLA RAWAT
Signing Date:23.09.2022
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46. Accordingly, the present appeal, being bereft of merits, is
dismissed. However, it is clarified that the observations entered
hereinabove with respect to the rights or otherwise of the appellant
with respect to the goods lying in the suit property have only been
made while examining the correctness of the impugned order dated
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17 September 2022. In case the appellant seeks to assert any rights
with respect to the said goods or any other amounts, which according
to him, the respondents are liable to pay to the appellant, this order
shall not preclude the appellant from prosecuting such rights by
separate proceedings in accordance with law.
47. Needless to say, the respondent would also be entitled to contest
any such claims as and when made by the appellant.
48. No costs.
C. HARI SHANKAR, J.
SEPTEMBER 21, 2022
dsn
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Signature Not Verified
Digitally Signed
By:KAMLA RAWAT
Signing Date:23.09.2022
16:26:01