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2019 Supreme(Del) 1083
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, J.
S.S. Constructions - Appellant
Vs.
Mbr Aastha Bhagwati Edu Trust - Respondent
Original Miscellaneous Petition (Enf) (Comm) No. 92 of 2017
Decided On : 12-03-2019
Jose P. Verghese, Adv., Dhruv Jose, Adv., C.S. Gupta, Adv., Sanjay Kumar Jain, Adv., Satender Kumar Jain, Adv., Bharat Gupta, Adv.
The main legal point established in the judgment is that trustees can approach the court in an enforcement action to contest the attachment order affecting their personal properties.
Headnote:
Attachment Order - Enforcement Proceedings - Arbitration and Conciliation Act, 1996 - Section 34, SARFAESI Act, 2002 - [Section 34 of the Arbitration and Conciliation Act, 1996, SARFAESI Act, 2002] - The court lifted the attachment order on various properties as the objectors demonstrated that the properties were their personal properties and were purchased prior to the creation of the trust. The court held that the trustees could approach the court in an enforcement action to contest the attachment order affecting their personal properties.
Fact of the Case:
The objectors filed objections against the attachment order on their properties in enforcement proceedings. The court lifted the attachment order on various properties as the objectors demonstrated that the properties were their personal properties and were purchased prior to the creation of the trust. The court held that the trustees could approach the court in an enforcement action to contest the attachment order affecting their personal properties.
Finding of the Court:
The court found that the attachment order on the properties owned by the objectors should be lifted as the properties were their personal properties and were purchased prior to the creation of the trust. The court held that the trustees could approach the court in an enforcement action to contest the attachment order affecting their personal properties.
Issues: The issues involved in the case were the ownership of the properties and the impact of the attachment order on the objectors' personal properties.
Ratio Decidendi: The court's decision was based on the fact that the objectors demonstrated that the properties were their personal properties and were purchased prior to the creation of the trust. The court held that the trustees could approach the court in an enforcement action to contest the attachment order affecting their personal properties.
Final Decision: The court lifted the attachment order on various properties owned by the objectors in the enforcement proceedings.
Rajiv Shakdher, J.
I.A. No.1591/2018 & I.A. No.1590/2018 These objections are filed by, one, Mr. Naresh Kumar Jain and Mr. Anand Prakash Jain. I.A. No.1591/2018 has been filed by Mr. Naresh Kumar Jain while I.A. No.1590/2018 has been filed by Mr. Anand Prakash Jain.
2. Via order dated 21.08.2017, this Court had attached, inter alia, the properties said to be owned by the Objectors.
3. In paragraph 10 of the enforcement petition, the details of the properties have been given. The properties adverted to in paragraph 10 (ii) and 10 (iv) of the enforcement petition are said to be owned by Mr. Anand Prakash Jain while the property described in paragraph 10 (iii) of the enforcement petition is said to be owned by Mr. Naresh Kumar Jain.
4. Along with the captioned interlocutory applications, the objectors have filed registered sale deeds concerning these properties.
5. Insofar as Mr. Anand Prakash Jain is concerned, who incidentally has expired, the following properties have been attached by virtue of order dated 21.08.2017:-
(i) Property bearing No. 3819, Gali Barna, Sadar Bazar, Delhi-110006
(ii) Property bearing No. 3721, Gali Barna, Sadar Bazar, Delhi-110006.
6. Copies of the registered sale deeds with respect to these properties have been produced. These are registered sale deeds dated 25.11.1994 and 12.08.1986.
7. As regards the property owned by Mr. Naresh Kumar Jain is concerned, the same is described as follows:-
"Property bearing No. 1A/255, NIT, Faridabad, Haryana."
8. This property was initially purchased by late Mr. Anand Prakash Jain vide registered sale deed dated 03.11.1989. The said property, however, was transferred via registered sale deed dated 05.11.2014 in favour of Mr. Naresh Kumar Jain.
9. Dr. Jose P. Verghese, who, appears for the decree holder, says that the judgment debtor trust was the owner of the aforementioned properties qua which right, title and interest is claimed by the aforementioned objectors.
10. Furthermore, Dr. Jose P. Verghese says that via the impugned Award, a direction had been issued by the learned Arbitrator vis-a-vis the aforementioned immoveable properties.
11. My attention, in this regard, has been drawn to paragraph 20 and the directions contained in paragraph 21 (c) of the Award dated 23.11.2016.
12. It is the contention of the learned counsel that since the Award was not assailed, the objectors cannot get the attachment order lifted. Learned counsel says that the aforementioned objectors being trustees should have filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (in short "1996 Act''), if they were impacted by the subject Award dated 23.11.2016.
13. I have heard the learned counsel for the parties.
14. I am of the view that the attachment order dated 21.08.2017 vis-a-vis the aforementioned properties will have to be lifted. The reason why I say so is that Dr. Jose P. Verghese has not been able to demonstrate, either from the Award or by reference to any document that the aforementioned immovable properties were trust properties.
14.1 The contention of Dr. Jose P. Verghese that the trustees should have filed a petition under tion 34 of the 1996 Act, in my view, is untenable. The objectors before me take the stand that the aforementioned properties are their personal properties and were purchased at a point in time much prior to the creation of the trust. It is not in dispute that the trust was created on 21.11.2003. In my view, it is permissible in law for the objectors to approach this Court in an enforcement action, which they have, by filing objections and contend that the attachment order affects their personal properties.
15. Thus, for the foregoing reasons, insofar as the aforementioned objectors are concerned, the attachment order dated 21.08.2017 is lifted.
16. The applications are disposed of in the aforementioned terms.
I.A. No.1592/201
17. This application has been filed by, one, Ms. Usha Jain. Ms. Usha Jain is also aggrieved by the attachment order date
