Dr J K Jain & Anr vs.scindia Potteries & Services Ltd - Court Judgment

SooperKanoon Citationsooperkanoon.com/1220000
CourtDelhi High Court
Decided OnDec-14-2018
AppellantDr J K Jain & Anr
RespondentScindia Potteries & Services Ltd
Excerpt:
* in the high court of delhi at new delhi % judgment delivered on:14. h december, 2018 + cm appl.47168/2018 in rfa8572017 dr j k jain & anr ..... appellants through: mr. sanjay jain, senior advocate with mr. saurabh d. karan singh, ms. kanika jain and mr. asif ahmed, advocates. ms. tasneem ahmadi, ms.mahima rathi, advocates for 1a to 1c. versus scindia potteries & services ltd ..... respondent through: mr. ajay kapur, senior advocate with ms. mahima dang and ms.latika malhotra, advocates. coram: hon'ble mr. justice i.s.mehta judgment1 vide this order, i shall dispose of the application moved on behalf of the appellant nos. 1 a to c seeking modification of order dated 18.07.2018 passed by this court.2. the facts giving rise to filing of the present application is that an application being c.m.no.36586/2017 was filed by the appellants before this court seeking stay of final judgment and decree dated 17.07.2017 passed by cm appl.47168/2018 in rfa8572017 page 1 of 5 the learned additional district judge - 01, patiala house courts in c.s. no.58159/2016. vide order dated 23.11.2017, the application being c.m.no.36586/2017 was disposed of by this court with the following directions: “c.m.no.36586/2017 1. subject to the appellant’s depositing 50% of the decreetal amount with up-to-date interest with the registry of the court within 8 weeks, there shall be stay of the execution of the impugned judgment and decree dated 17.07.2017. this is subject to further condition that the appellant shall deposit monthly use and occupation charges at the rate of rs.7.5 lacs per month till the final disposal of the appeal. it is further directed that appellant shall not create any third party interest in the property in question during the pendency of the appeal.2. the application stands disposed of.” 3. an application being cm no.4177/2018 was filed on behalf of the appellants, inter alia, seeking pardon for non-compliance of order dated 23.11.2017 passed by this court and for extension of time to comply with the order. the said application was disposed of by this court vide order dated 18.07.2018. the relevant portion of order dated 18.07.2018 is reproduced: “25. the counsel for the legal heirs of appellant/defendant no.1 states that mr.ankur jain, son of the deceased appellant / defendant no.1, is personally present in the court and undertakes to this court to, within two weeks, deposit 25% of the decretal amount with up to date interest thereon and within cm appl.47168/2018 in rfa8572017 page 2 of 5 four weeks, deposit another 25% of the decretal amount with up to date interest thereon.26. mr.ankur jain identified by the advocate has been cautioned of consequences of breach of undertaking given to the court.27. if the undertaking is not complied with, the respondent / plaintiff besides being entitled to execute the decree shall also be entitled to initiate proceedings against mr. ankur jain for contempt of court for breach of the undertaking given to the court.28. i have enquired from the counsel for the appellants / defendants with respect to the security for balance 50% of the decretal amount.29. the appellants / defendants to, within six weeks, furnish security for payment thereof to the satisfaction of the registrar general of this court along with affidavits of undertaking of the appellants for payment of the balance 50% of the decretal amount in the event of the appeal being dismissed.29. with the aforesaid, cm no.4177/2018 is disposed of.” 4. thereafter, another application being cm no.30665/2018 was moved on behalf of appellant no.1 seeking extension of time for compliance of order dated 18.07.2018. vide order dated 01.08.2018, the application being cm no.30665/2018 was disposed of with directions to deposit 25% of the cm appl.47168/2018 in rfa8572017 page 3 of 5 decretal amount within three months and the balance 25% of the decretal amount within four months. it was made clear that no further extension shall be granted and if the appellant is found to be in breach of the undertaking, consequences shall follow. it was also clarified that the time for furnishing security for the balance 50% decretal amount remains the same as permitted vide order dated 18.07.2018.5. mr. sanjay jain, learned senior counsel for the appellant nos. 1 a to c has submitted that the applicants-appellants have complied with order of this court and have filed an affidavit to furnish security for an amount equivalent to 50% of the decretal amount on 31.08.2018. he has further submitted that the applicants-appellants are trying their level best to comply with the order dated 01.08.2018, however, due to events beyond the control of applicants- appellants, a further short extension of time is required to make the said deposits. he has further submitted that besides that the appellants have already furnished security towards 90% of the decretal amount and the appellants are willing to deposit the security for remaining 10% of the decretal amount. learned senior counsel further submits that since the appeal is pending, either the appeal be disposed of or his application be allowed or the execution pending before the trial court be stayed till further orders.6. reply to the application not filed by the respondent. mr. ajay kapur, learned senior counsel appearing on behalf of respondent has submitted that the matter had come up before the executing court where a submission was made by judgment debtor that they were unable to deposit the said amount on account of festivities and that they had moved the present application cm appl.47168/2018 in rfa8572017 page 4 of 5 before this hon’ble court on 31.10.2018, which was listed before this hon’ble court on 13.11.2018. he has further submitted that the learned executing court observed that since the application regarding non-deposit as was directed by the hon’ble high court was pending in november, hence, the matter was listed for further proceedings on 07.12.2018. he has further submitted that the applicants-appellants are merely misusing the process of the court and have been evading compliance of orders of this court on frivolous pretexts and the application is liable to be dismissed.7. this court is not satisfied with the reasons assigned by the applicants- appellants for non compliance of order dated 01.08.2018. accordingly, this court is not inclined to extend time for deposit of the decretal amount. however, the consequences of not depositing the decretal amount in terms of order dated 01.08.2018 would be seen at the stage of final arguments when the parties are heard on merits.8. the application is disposed of accordingly. i.s.mehta, j december14 2018 cm appl.47168/2018 in rfa8572017 page 5 of 5
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on:

14. h December, 2018 + CM APPL.47168/2018 IN RFA8572017 DR J K JAIN & ANR ..... Appellants Through: Mr. Sanjay Jain, Senior Advocate with Mr. Saurabh D. Karan Singh, Ms. Kanika Jain and Mr. Asif Ahmed, Advocates. Ms. Tasneem Ahmadi, Ms.Mahima Rathi, Advocates for 1A to 1C. versus SCINDIA POTTERIES & SERVICES LTD ..... Respondent Through: Mr. Ajay Kapur, Senior Advocate with Ms. Mahima Dang and Ms.Latika Malhotra, Advocates. CORAM: HON'BLE MR. JUSTICE I.S.MEHTA JUDGMENT1 Vide this order, I shall dispose of the application moved on behalf of the appellant Nos. 1 A to C seeking modification of order dated 18.07.2018 passed by this Court.

2. The facts giving rise to filing of the present application is that an application being C.M.No.36586/2017 was filed by the appellants before this Court seeking stay of final judgment and decree dated 17.07.2017 passed by CM APPL.47168/2018 IN RFA8572017 Page 1 of 5 the learned Additional District Judge - 01, Patiala House Courts in C.S. No.58159/2016. Vide order dated 23.11.2017, the application being C.M.No.36586/2017 was disposed of by this Court with the following directions: “C.M.No.36586/2017 1. Subject to the appellant’s depositing 50% of the decreetal amount with up-to-date interest with the Registry of the Court within 8 weeks, there shall be stay of the execution of the impugned judgment and decree dated 17.07.2017. This is subject to further condition that the appellant shall deposit monthly use and occupation charges at the rate of Rs.7.5 lacs per month till the final disposal of the appeal. It is further directed that appellant shall not create any third party interest in the property in question during the pendency of the appeal.

2. The application stands disposed of.” 3. An application being CM No.4177/2018 was filed on behalf of the appellants, inter alia, seeking pardon for non-compliance of order dated 23.11.2017 passed by this Court and for extension of time to comply with the order. The said application was disposed of by this Court vide order dated 18.07.2018. The relevant portion of order dated 18.07.2018 is reproduced: “25. The counsel for the legal heirs of appellant/defendant no.1 states that Mr.Ankur Jain, son of the deceased appellant / defendant no.1, is personally present in the Court and undertakes to this Court to, within two weeks, deposit 25% of the decretal amount with up to date interest thereon and within CM APPL.47168/2018 IN RFA8572017 Page 2 of 5 four weeks, deposit another 25% of the decretal amount with up to date interest thereon.

26. Mr.Ankur Jain identified by the advocate has been cautioned of consequences of breach of undertaking given to the Court.

27. If the undertaking is not complied with, the respondent / plaintiff besides being entitled to execute the decree shall also be entitled to initiate proceedings against Mr. Ankur Jain for contempt of Court for breach of the undertaking given to the Court.

28. I have enquired from the counsel for the appellants / defendants with respect to the security for balance 50% of the decretal amount.

29. The appellants / defendants to, within six weeks, furnish security for payment thereof to the satisfaction of the Registrar General of this Court along with affidavits of undertaking of the appellants for payment of the balance 50% of the decretal amount in the event of the appeal being dismissed.

29. With the aforesaid, CM No.4177/2018 is disposed of.” 4. Thereafter, another application being CM No.30665/2018 was moved on behalf of appellant No.1 seeking extension of time for compliance of order dated 18.07.2018. Vide order dated 01.08.2018, the application being CM No.30665/2018 was disposed of with directions to deposit 25% of the CM APPL.47168/2018 IN RFA8572017 Page 3 of 5 decretal amount within three months and the balance 25% of the decretal amount within four months. It was made clear that no further extension shall be granted and if the appellant is found to be in breach of the undertaking, consequences shall follow. It was also clarified that the time for furnishing security for the balance 50% decretal amount remains the same as permitted vide order dated 18.07.2018.

5. Mr. Sanjay Jain, learned senior counsel for the appellant Nos. 1 A to C has submitted that the applicants-appellants have complied with order of this Court and have filed an affidavit to furnish security for an amount equivalent to 50% of the decretal amount on 31.08.2018. He has further submitted that the applicants-appellants are trying their level best to comply with the order dated 01.08.2018, however, due to events beyond the control of applicants- appellants, a further short extension of time is required to make the said deposits. He has further submitted that besides that the appellants have already furnished security towards 90% of the decretal amount and the appellants are willing to deposit the security for remaining 10% of the decretal amount. Learned senior counsel further submits that since the appeal is pending, either the appeal be disposed of or his application be allowed or the execution pending before the Trial Court be stayed till further orders.

6. Reply to the application not filed by the respondent. Mr. Ajay Kapur, learned senior counsel appearing on behalf of respondent has submitted that the matter had come up before the executing Court where a submission was made by judgment debtor that they were unable to deposit the said amount on account of festivities and that they had moved the present application CM APPL.47168/2018 IN RFA8572017 Page 4 of 5 before this Hon’ble Court on 31.10.2018, which was listed before this Hon’ble Court on 13.11.2018. He has further submitted that the learned Executing Court observed that since the application regarding non-deposit as was directed by the Hon’ble High Court was pending in November, hence, the matter was listed for further proceedings on 07.12.2018. He has further submitted that the applicants-appellants are merely misusing the process of the Court and have been evading compliance of orders of this Court on frivolous pretexts and the application is liable to be dismissed.

7. This Court is not satisfied with the reasons assigned by the applicants- appellants for non compliance of order dated 01.08.2018. Accordingly, this Court is not inclined to extend time for deposit of the decretal amount. However, the consequences of not depositing the decretal amount in terms of order dated 01.08.2018 would be seen at the stage of final arguments when the parties are heard on merits.

8. The application is disposed of accordingly. I.S.MEHTA, J DECEMBER14 2018 CM APPL.47168/2018 IN RFA8572017 Page 5 of 5