Judgment:
ORDER
SHEET GA470of 2016 With EC124of 2015 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE SMT.
ALKA GUPTA Versus M/S.GRASIM INDUSTRIES LIMITED & OTHERS BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 17th February, 2016.
Appearance: Mr.Amlan Guha, Adv.Mr.Amitabha Das, Adv.Mr.Soumabho Ghose, Adv.Mr.S.Kumar Roy, Adv.The Court : The technicalities cannot overweigh the substantial justice.
The procedure is a handmade of justice and not circumscribed by the technicalities thereof.
An extreme argument is advanced before this Court on the right of a third party before the executing Court if the decree relates to movable property.
It is vehemently submitted by the decree holder that the third party, who seeks intervention in the execution proceeding for adjudication of his right does not deserve any favourable order as neither Rule 58 nor Rule 101 of Order XXI of the Code of Civil Procedure can be made applicable.
Admittedly, a decree is passed in respect of the movable properties, which are the equity shares without impleading the present applicant therein.
The present applicant had already instituted a suit before this Court wherein an application for temporary injunction was taken out and it is not in dispute that an order of status quo in regard to the shares held in the demat account was passed and made confirmed subsequently.
Taking advantage of the decree, the decree holder proceeded with the execution case and could successfully get the Receiver appointed.
The Receiver went to the company, the equity shares of which are subject matter of the decree and recorded the steps to be taken by the parties therein.
From the report it is amply clear that the decree holder was supposed to deliver the equity shares held by her in physical form for the purpose of dematerialisation which is the mandatory requirement before any transfer, alienation and/or encumbrances is intended.
Mr.Das, in his usual eloquence, successfully avoided the Court to answer whether there is any contemplation on the part of the decree holder to act in terms of the suggestions recorded by the Receiver.
Mr.Das harps upon the maintainability of the instant application before the executing Court and any interim order to be passed in the manner as prayed for therein.
According to him, after the order of status quo being confirmed, the applicant could not succeed in securing any order against either dematerialisation of those equity shares or their transfer and/or alienation and, therefore, no order should be passed in an execution proceeding.
He seeks for direction to file affidavits.
The attention of this Court is drawn to an order passed on 1st July, 2014 in a suit instituted by the applicant wherein an allegation was made that despite an order of status quo the decree holders have dealt with the shares held in the demat account and if an order of attachment is not passed, the applicant shall be left without any security.
An argument was advanced at the behest of the decree holder that once the decree is passed in a suit instituted by her, no fetter should be put to reap the benefit therefrom.
It appears that the Court refused to pass an order of attachment or injunction solely on the ground of delay.
However, the Court did not put the applicant without any remedy as the decree holder was directed to explain the manner in which those shares have been dealt in violation of the said status quo order.
It is submitted by the applicant that despite such directions, no disclosure has been made as yet by the decree holder.
The present application has been taken out for an adjudication of the right, title and interest as well as an interim direction against 2150 shares of Grasim Industries Limited and 1230 shares of Ultratech Cement Limited which the decree holder intended to convert it from physical form with an evil object to alienate, transfer and/or deal with the same.
A third party who felt aggrieved by a decree cannot be rendered remediless once the executing Court is in seisin of the matter.
This Court does not find any difficulty in having such person approaching to the executing Court and ventilate his grievance.
There cannot be a restrictive interpretation to the provisions under Order XXI Rule 101 of the Code as suggested by Mr.Das that it has its applicability only in case of a decree passed for immovable property.
There is no expression as suggested by Mr.Das ‘immovable property’ included in the aforesaid provision so as to make it operate restrictively.
The recouRs.under Order XXI Rule 58 of the Code can only be made when an order of attachment is passed in an execution proceeding and a person affected by such order approaches the executing Court and invited the adjudication of its right, title and interest.
This Court does not find any restriction being imposed upon the executing Court in making an adjudication to a claim put forth by a third party even in case a decree is passed in respect of a movable property.
Admittedly, the applicant was enjoying an order of status quo in her suit and it is undisputed that the said order is still operating in the field.
The decree holder is one of the defendants in the said suit and, therefore, is bound by the said order.
The Court shall not allow a party to act in violation of its own order.
Anything done on the teeth of an order of injunction, be it in the form of a status quo, is illegal and should not be permitted to be violated.
The applicant has made out a prima facie case and, therefore, this Court does not find any impediment in protecting the right pending the instant application.
The decree holder is, therefore, restrained from converting the aforesaid shares into demat form from physical form and/or dealing with, selling and/or encumbering those shares to a third party till the disposal of the instant application.
The decree holder is directed to file affidavit-in-opposition within four weeks from date; reply, if any, shall be filed within two weeks therefrom.
The application is made returnable after six weeks as ‘Chamber Application For Final Disposal’.
(HARISH TANDON, J.) sp2.