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Judgment
This is an application for execution of an Award dated 15th September, 2015. The present position is that the award-debtor nos.3 and 4 filed their
affidavits of assets sometime in 2018 prior to judgment of a co-ordinate
Bench of 7th April, 2021 by which certain matters including the present execution case was transferred to the Commercial Division. The first question
is whether the existing affidavits of the award-debtor nos.3 and 4 can be taken on board if they were filed when the matter was before a regular
Bench. This Court is of the view that since both the affidavits were already before the Court before the judgment dated 7th April, 2021, the affidavits
of assets can be taken on board before this Court and made part of the present proceedings.
The second question is whether the petitioner being the award-holder can be entitled to interim orders pending all four judgment-debtors being heard in
a trial. The judgment-debtor nos.1 and 2 have not filed their affidavits of assets despite an order of a learned single Judge dated 7th September, 2018.
By the said order, the judgment-debtor no.4 was directed to file its affidavit of assets by the returnable date on behalf of the judgment-debtor nos.1
and 2. The judgment-debtor no.4 has not complied with the direction of the aforesaid order till date. The interim order prayed for is for an order of
attachment of the property of the respondent nos.1, 2 and 3 on the basis of two documents shown by learned counsel to the Court. According to
counsel, the affidavit of assets of the respondent/award-debtor no.3 suppresses material facts since these two documents would show that the
respondent no.3 is a director of one Siddharth Construction and Trading Private Limited and also holds substantial number of shares in Siddharth
Construction and Trading Private Limited which is a solvent company. The contention therefore is that the respondent no.3 despite having substantial
assets has failed to disclose the same in his affidavit.
Learned counsel appearing for the respondent nos.3 and 4 resists the interim prayer on the ground that the relevant paragraph in the application does
not support the prayer. Counsel seeks time to bring the respondent no. 3 for the purpose of trial.
Upon hearing learned counsel, this Court is of the view that the documents shown in support of prayer for attachment of the properties of the
respondent nos.1, 2 and 3 are not sufficient. The documents only show that the respondent no.3 is a director and a share holder of a company which
may or may not be a prosperous company - that question has to be decided at the time of cross-examination of the respondent no.3. The relevant
paragraph also gives the particulars of the residential apartment of the respondent no.3 which makes it arguable whether a residential property of an
individual can form part of an order of attachment of the assets of the judgment-debtor. A very strong case must be made out for passing an order of
attachment of a residential property of a judgment-debtor. The other property mentioned in paragraph 69 of the application does not show the value of
such property or any other details which would convince the Court that the property would satisfy part of the claim of the petitioner. This Court is
therefore not inclined to pass any interim orders pending cross-examination of the judgment â€"debtors. The respondent no.3 (mentioned as judgment-
debtor no.4 in the order dated 7th September, 2018) is however directed to comply with the order passed by a learned single Judge on 7th September,
2018 within a period of three weeks from date.
The respondent no. 3 shall appear for cross-examination before this Court on 10th September, 2021 at 2.00 p.m.