D.K. Jain, J.
1. EA No. 343/97 has been filed by one M/s. United Towers India (P) Limited for impleadment as well as for recall, set aside and variation of the warrants of attachment issued by this Court on 4 May 1994, in respect of property No. 22, Barakhamba lane, New Delhi (subsequently corrected as 20, Barakhamba Road, New Delhi). EA No. 344/97 has been filed by Raj Kumar Gupta - Judgment debtor No. 1, for recall of the said warrants of attachment. These arise under the following circumstances:
On the basis of judgment dated 29 March 1988, obtained under the Foreign Judgments (Reciprocal Enforcement) Act 1933, Part-1, from the High Court of Justice, Queens Bench Division, Commercial Court, England, in suit bearing No. 1988 Folio No. 1090, M/s. Barnes Investment Limited and two others against Raj Kumar Gupta (judgment debtor No. 1) and seven others, styled as defendants, the plaintiffs, (hereinafter referred to as the decree holders) filed execution No. 135/92 against Raj Kumar Gupta-judgment debtor No. 1 and six others for recovery of Rs. 3,60,09,821.01 by attachment and sale of property bearing No. 22, Barakhamba Lane, New Delhi(got corrected as 20, Barakhamba Road, New Delhi vide order dated 20 December 1994) and also share holdings of judgment debtor No. 1 in the companies of defendants No. 2 to 8.
2. Notice in the execution petition was issued only to judgment debtor No. 1 as it was stated before the Court that other defendants were only proforma parties. It appears that after service on judgment debtor No. 1, the Court issued warrants of attachment of the afore noted immovable property, returnable on 31 August 1994 and later on 3 January 1995. Meanwhile, on 23 September 1994, Raj Kumar Gupta filed two applications, being EA No. 278/94 (under Order 21 Rule 58 CPC) and a supplementary application, EA No. 279/94 (under Section 151 CPC) assailing the validity of the foreign decree sought to be executed on the pleas that: the foreign decree was made without service on him; was ex parte and not on merits; the foreign court had no jurisdiction; the decree was fraudulent and the execution was not maintainable. It was prayed that the warrants issued be recalled/stayed, till the objections in EA No. 278/94 were finally decided.
3. On 16 January 1995, Raj Kumar Gupta filed a Suit, No. 138/95, for declaration and permanent injunction on the self same pleas against the judgment and decree under execution, of its being a nullity, void ab initio and not conclusive. On is No. 419/95, moved therein, the execution proceedings, i.e. the present proceedings, were stayed. The said order is still in force.
4. On 30 October 1997, EA No. 343/97 and shortly thereafter EA No. 344/97, were filed seeking impleadment and recall of the warrants of attachment issued. In application No. 343/97, filed by United Towers India (P) Limited, the company claims to have acquired interests in the property, namely, 20 Barakhamba Road, New Delhi byvirtue of the agreement to sell dated 1 July 1977, supplementary agreement to sell dated 21 August 1979 and building agreement dated 21 August 1979, with its owners Lala Dev Raj and his family members. In the second application, No. 344/97, filed by Raj Kumar Gupta - J.D No. 1, it was pleaded that he was not the owner of the said property, which initially belonged to Lala Hans Raj, Lala Dev Raj and their families and had been transferred to United Towers.
5. Both the applications are opposed by the decree holders in the reply filed. Rejoinder to decree holders' reply to EA No. 343/97 has also been filed.
6. I have heard learned counsel for the parties, who have taken me through the various documents placed on record by them.
7. As regards EA Nos. 278/94 and 279/94, being the objections filed by Raj Kumar Gupta judgment debtor No. 1, assailing the foreign judgment and the maintainability of the execution petition, these are well covered by Suit No. 138/95, filed by him, which is a substantive and exhaustive action and the issue raised will be decided therein. However, the case of the applicants in the present applications is that the subject property, never belonged/does not belong to Raj Kumar Gupta/judgment debtor No. 1, but the two brothers, namely, late Lala Hans Raj Gupta and Lala Dev Raj Gupta. Lala Dev Raj Gupta and his family transferred their share in the said property to the applicant- M/s. United Towers India (P) Limited under the afore noted two agreements to sell purporting to show how United Towers have acquired the property/rights, in the property, which claim is affirmed in FAO (OS) No. 203/96, arising out of suit filed by a descendant of one of the transferors'. Raj Kumar Gupta's name does not appear there as one of the owner/transferor nor is he shown to be a son of any transferor. Rather, he is shown as a Managing Director of the claimant company. The decree holders deny it and seek its attachment as property of Raj Kumar Gupta-judgment debtor No. 1. They assert that Raj Kumar Gupta is the son of Lala Dev Raj Gupta and in any event he has acquired interest in the property under some documents executed between the year 1977 and 1979. Raj Kumar Gupta denies it and says that he is son not of Dev Raj Gupta but of Dev Raj Aggarwal and in support has filed photocopies of his passport issued in 1993 and the death certificate of his 'father', Dev Raj Aggarwal. Lala Dev Raj Gupta is stated to be still alive.
8. As noticed above, the decree holders resist the objection applications and seek to justify attachment, mainly on the plea that Raj Kumar Gupta is in fact one of the sons of Lala Dev Raj Gupta and is thus one of the owners of the subject property and to support it Mr. Devinder Singh, learned counsel for them, has relied upon certain averments by Raj Kumar Gupta/judgment debtor No. 1 in his suit No. 138/95, wherein in paragraphs 1 and 10 of the plaint, he has referred to the property in question as 'plaintiffs property'. However, in their reply to the applications filed on behalf of decree holders, there is no specific denial to the reflection to the contrary in the documents placed on record by the claimants/applicants.
9. Thus the issue, whether attachment of the subject property is justified or not, cannot be decided till the question whether Raj Kumar Gupta has any right, interest or title in the property 20 Barakhamba Road, New Delhi or the plea that he is son of Dev Raj 'Aggarwal' and not of Dev Raj 'Gupta' is resolved. Having given mythoughtful consideration to the conflicting stands of the parties and the bare casual averments and pleas as to it, I feel, that this controversy cannot effectively be resolved in a summary manner without trial, particularly when valuable rights of both the parties are involved. In this view of the matter, for the present, no conclusive finding regarding the ownership of the subject property can be recorded and in the absence of such a finding in this regard, it cannot be said that the order of attachment is, per se, bad, as contended by learned counsel for the applicants, warranting its recall.
10. However, keeping in view the fact that the property in question is situated in a prime location in the heart of the city, its value would be many times more than the decretal amount, it may not be necessary to keep the entire property under attachment and the equity demands modification of the order dated 4 May 1994, directing attachment of the entire property. In EA No. 343/97, the applicant company has ordered to secure the interest of the decree holders by undertaking not to sell 2000 Sq.ft. of the multistory building, which it proposes to construct on the said land as the price of the built up property at Barakhamba Road is stated to be approximately Rs. 20,000/.- per Sq.Ft, which, to me, appears to be slightly on the higher side. Having regard to the facts and circumstances of the case, I am inclined to accept the alternative suggestion of the applicant in EA No. 343/97 and would accordingly direct the Principal Officer of the applicant company to file an affidavit in this Court, undertaking not to sell 3000 Sq.Ft. of the covered area in the multistory building, proposed to be constructed on the property in question. The affidavit shall be accompanied by a resolution by the Board of Directors, authorising the Principal Officer to furnish the stated undertaking. On the filing of the said affidavit, attachment order dated 4 May 1994 shall stand modified to the extent that 3000 Sq.Ft of the covered area in the superstructure proposed to be constructed on the land in question shall remain attached till the disposal of the main execution petition. The requisite affidavit shall be filed within six weeks.
11. In support and rebuttal of claim in EA 343/97 and objections in EA 344/97, the parties will abuse evidence by affidavits, with or without documents, to be filed within eight weeks, with liberty to each party to cross-examine the affiants.
12. To come up on 6 May 1998 for further directions.