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IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
M/s. Mehala Carona Textiles Private Limited and Others – Appellants
Versus
M/s. RRB Energy Private Limited – Respondent
Ex. Pet. No. 34 of 2019, Ex. Appeal (OS) Nos. 195 of 2019, 210, 211 of 2021
Decided On : 03-06-2021
Code of Civil Procedure, 1908 - Section 151, Order XXI Rule 11 - Suit for recovery of amount - Execution of Judgment/Decree/Transfer of Decree- Erection and commissioning of wind mills - work orders - shortfall in the wind energy generation - Shortfall in the generation during the warranty period would be compensated at Tamil Nadu Electricity Board.
Finding of the Court:
Decree-holders should not be penalized on grounds of mere irregularity and the maxim Actus curies minimum gravabit which means the act of court cannot prejudice parties, must be given utmost significance -no requirement for issuance of notice for an application preferred under Section 40 read with Order XXI Rule 5 of CPC. Moreover, the respondent/judgment-debtor is not deprived of any of its rights to raise its objection before the transferee court during the execution of the decree.
Result: Application dismissed.
JUDGMENT :
V. KAMESWAR RAO, J.
Ex. Appeal (OS) No. 211/2021
This is an application filed under Section 151 of the Code of Civil Procedure, 1908 (‘CPC’ for short) for condonation of 29 days delay in re-filing Ex. Appeal (OS) No. 210/2021. For the reasons stated in the application the delay of 29 days in re-filing is condoned.
The application is disposed of.
Ex. Pet. No. 34/2019
1. The present petition has been filed under Order XXI Rule 11 of the CPC for execution of Judgment/Decree dated June 04, 2014 passed by the Court of IInd Additional District and Sessions Judge at Tirupur, Tamil Nadu in O.S. No. 131/2011. The prayers as noted from the petition are as follows:
(b) Order for enforcement/execution of the same.
(c) Direct the Respondent/Judgment Debtor to furnish security to the extent of the decreed amount along with interest pending execution and enforcement proceedings.
(d) Direct attachment and sale of assets mentioned in the Schedule of properties of the petition, issue proclamation for sale and auction the property, and the assets mentioned in the Schedule of the properties may be ordered to be attached, taken custody of and sold by auction or any other suitable mode and the notice of the said attachment may be served and affixed on the premises of the Respondent/Judgment Debtor company:
(i) Award cost of these proceedings and pass such other or further order in favour of the Petitioner/Decree Holder as may deem fit and proper in the facts of the case.”
2. The petitioners/decree-holders herein viz. (a) M/s Mehala Carona Textiles (P) Ltd. a Private Ltd Company under the Companies Act, 1956, having its registered office at 36, Harvey Road, Tirupur-641602, Tamil Nadu; (b) M/s Mehala and Company, a Sole Proprietor concern, having its registered office at 34, Harvey Road, Tirupur-641602, Tamil Nadu; (c) M/s Sunrise Knitting Mills, a Partnership firm, a Government recognized Export House, having its office at Kulivayal Thottam, Kullegoundenpudur, Andipalayam Post, Tirupur-641687; (d) M/s Dharani Wind Energy Pvt. Ltd. a Private Limited Company within the meaning of the Companies Act, 1956 (since name having been changed to Dharani Textiles Private Limited, as on 02.04.2008) having its registered office at No. 36, Harvey Road, Tirupur-641602, Tamil Nadu are sister concerns with a common promoter who is the Director of the petitioner Nos. 1 and 4, Power Agent of petitioner No. 3 and Sole proprietor of petitioner No. 2.
3. The respondent/judgment-debtor is RRB Energy Limited, a Limited Company within the meaning of the Companies Act, 1956 having its registered office at GA-l/B-1 Extension, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044.
4. The brief facts leading up to the filing of the present execution petition, as noted from the petition are as follows. The petitioners/decree-holders were looking for erection of Wind Energy Generators (‘WEGs’ for short) and eventually the respondent/judgment-debtor got in touch with the petitioners/decree-holders and represented to them that they possessed the necessary expertise in identifying suitable locations, setting up erection and commissioning of wind mills. Thereafter, the petitioner No. 1 herein placed a purchase order dated November 21, 2003 for purchase of 4 WEGs with minimum guarantee generation. Simultaneously, in respect of erection and commissioning works connected with the wind mills, petitioner No. 1 placed separate work orders dated November 27, 2003 and December 8, 2003 with the respondent company. Purchase orders for another 4 WEGs were placed by petitioner No. 3 on September 09, 2003 and the respective erection and commission work order was placed on September 16, 2003. The purchase orders stipulated that the respondent company/judgment-debtor would provide 2 years warranty from the
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Amendments to execution petitions may correct defects; simultaneous execution against debtor's person and property allowed under judicial discretion per CPC.
A court cannot independently impose asset disclosure requirements during execution proceedings without a request from decree holders, ensuring compliance with jurisdictional provisions and protecting....
The Trial Court's decision in favor of the plaintiffs/respondent Nos. 1 and 2 and against the appellant without ensuring notice to the appellant and/or his counsel had been effected was in violation ....
Order XXI Rule 29 of Code is stay of execution pending suit between decree-holder and judgment-debtor.
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
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