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2012 DIGILAW 67 (DEL)

Bhawani Pictures v. Navrang Films

2012-01-05

S.MURALIDHAR

body2012
JUDGMENT 1. The present Execution Petition No. 138 of 2006 has been filed by a proprietary concern, M/s. Bhawani Pictures, for enforcement of an Award dated 27th February, 1995, which was made Rule of Court on 12th November, 1997. EA No. 327 of 2006 was filed along with Ex. P. No. 138 of 2006 seeking attachment of the movable properties of the Judgment Debtors (JDs) as listed in Annexure ‘A’ to the Execution Petition. 2. The Award was passed against the JD No. 1, M/s. Navrang Films, a proprietary concern, of which JD No. 2, Mr. Trilochan Singh was the sole proprietor. In the present Execution Petition, pursuant to an order dated 17th September, 2010, Mr. Devinder Singh, brother of Mr. Trilochan Singh (JD No. 2) has been arrayed as JD No. 3. However, JD No. 3 was not a party in the arbitral proceedings. 3. Although, the notice was issued on 3rd July, 2006, in both Ex. P. 138 of 2006 and E.A. No. 327 of 2006, appearance was entered on behalf of JD No. 2 only on 6th January, 2009. No objections were filed till 28th May, 2009. Also the appearance on behalf of JD No. 2 was infrequent. Accordingly, on 28th May, 2009 costs of Rs. 3000/-were imposed on JD No. 2. Thereafter, a statement was made before the Joint Registrar on 27th October, 2009 by the Counsel appearing for JD No. 2 that he was appearing only for JD No. 2 and not on behalf of JD No. 1. The case was, thereafter, placed before the Court. Warrants of attachment of the properties described in Annexure ‘A’ to the Execution Petition were directed to be issued on 15th February, 2010. However, these were received back unexecuted with the remarks ‘office locked since last two years’. 4. Meanwhile, EA No. 151 of 2010 was filed by the Decree Holder (‘DH’) under Order 21 Rule 5 read with Sections 39 and 40 of the CPC for transfer of the decree to the Court at Kanpur. JD No. 2 filed EA No. 221 of 2010 objecting the enforcement of the Award by contending that he was not a party to the arbitral proceedings and that he was not the proprietor of JD No. 1. JD No. 2 filed EA No. 221 of 2010 objecting the enforcement of the Award by contending that he was not a party to the arbitral proceedings and that he was not the proprietor of JD No. 1. The DH then filed Criminal Application No. 8774 of 2010 under Section 340 of Cr.P.C. for initiating proceedings against the JD No. 2 for making a false claim that he was not the sole proprietor of JD No. 1. Notice was issued in the said application on 16th July, 2010. This Court also directed Mr. Harish Malhotra, learned Senior Advocate and Ms. Deepali Chandiok, Advocate to remain present in the Court on the next date as they were stated to have represented JD No. 1 before the learned Arbitrator. 5. On 17th September, 2010, the following order was passed by this Court: “Mr. Harish Malhotra, learned Senior Counsel has appeared on the request of the Court. He identifies judgment debtor No. 2, who is present in Court. Mr. Malhotra states that judgment debtor No. 2 along with his brother Devender Singh had approached him and he had been engaged by judgment debtor No. 2 and his brother to appear on their behalf before the arbitrator Mr. S.N. Sapra (Retd.), and thereafter also to file objections to the award. Mr. Malhotra states that he had filed the objections to the award on the instructions of judgment debtor No. 2 and his brother Devender Singh. Learned Counsel for the decree holder has tendered in Court the original certificate from Motion Pictures Association, according to which, Navrang Films has been registered with it as a proprietary firm of Sh. Trilochan Singh, i.e. JD No. 2. The said document is taken on record. A copy of the same is furnished to the learned Counsel for judgment debtor No. 2, who wishes to take instruction in this regard. Both parties are permitted to approach the Motion Pictures Association to obtain from it certified copies of the registration/membership documents, which may have been submitted in the name of M/s. Navrang Films, Delhi. If such an application is made, Motion Pictures Association shall provide the certified copies of the relevant documents as it is in dispute whether Sh. Trilochan Singh has signed the application for membership and other related documents. Learned Counsel for the decree holder seeks liberty to implead Sh. Devender Singh as a party. If such an application is made, Motion Pictures Association shall provide the certified copies of the relevant documents as it is in dispute whether Sh. Trilochan Singh has signed the application for membership and other related documents. Learned Counsel for the decree holder seeks liberty to implead Sh. Devender Singh as a party. In view of the nature of dispute raised by judgment debtor No. 2, the decree holder is permitted to do so. Let an amended memo of parties be filed within one week and upon the same being filed along with process fee, let issue notice to Sh. Devender Singh returnable on 22.11.2010. The judgment debtor No. 2 shall provide the address of Sh. Devender Singh to the learned Counsel for the decree holder during the course of the day. Dasti.” 6. Thereafter JD No. 3 entered appearance and filed EA No. 402 of 2011, in which notice was directed to be issued on 13th July, 2011. 7. It is contended on behalf of JD No. 2 that his signatures in the objections filed by him to the Award dated 27th February, 1995 by way of I.A. No. 10012 of 1995 in Suit No. 1055A of 1995 have been forged. However, a perusal of the said objection in IA No. 10012 of 1995 shows that the said plea is not tenable. In the said opposition, JD No. 2 has objected to the Award on merits but has raised no contention that he is not the proprietor of JD No. 1. Even after receipt of the notice in Crl. A. No. 8774 of 2010, JD No. 2 has not cared to institute any proceedings consistent with his contention that his signatures were forged in the arbitral proceedings or in the proceedings before this Court. 8. What belies the plea JD No. 2 is also the fact that Mr. Harish Malhotra, learned Senior Advocate appeared before this Court and identified JD No. 2 correctly. Mr. Malhotra informed the Court that JD No. 2 and his brother, Mr. Devinder Singh, JD No. 3, had instructed Mr. Malhotra to appear before the learned Arbitrator. It was further pointed out by Mr. Malhotra in the Court in the presence of JD No. 2 that he had filed objections to the Award in this Court on the instructions of JD No. 2 and his brother, JD No. 3. Devinder Singh, JD No. 3, had instructed Mr. Malhotra to appear before the learned Arbitrator. It was further pointed out by Mr. Malhotra in the Court in the presence of JD No. 2 that he had filed objections to the Award in this Court on the instructions of JD No. 2 and his brother, JD No. 3. It is, therefore, too late in the day for JD No. 2 to contend that he is not the sole proprietor of JD No. 1 or that he was not party to the arbitral proceedings. 9. The documents filed by JD No. 2 himself show that an application was made by M/s. Navrang Films for membership of the Motion Pictures Association, in New Delhi way back in 14th April, 1986. In the said application, the name of the proprietor of M/s. Navrang Films is indicated as ‘S. Trilochan Singh’. Counsel for JD No. 2 sought to contend that the said application form merely indicates the name and does not contain the signature of JD No. 2. There is no requirement of a signature of the proprietor in the said form. The name of the proprietor is clearly indicated as ‘S. Trilochan Singh’. The document forms part of the record of the Motion Pictures Association. Enclosed with the letter dated 6th October, 2010 of the Motion Pictures Association to the Counsel for JD No. 2 is the ‘photocopy of page bearing No. 057 of Membership Registered and Circular No. MPA/457/86-(Acq-260) dated 18th July, 1986’ duly attested. These documents are more than sufficient to demonstrate that JD No. 2 is, in fact, the proprietor of JD No. 1. Consequently, the objections raised by JD No. 2 are rejected as being wholly untenable. EA No. 221 of 2011 is dismissed with costs of Rs. 10,000/-, which will be paid by JD No. 2 to the DH within four weeks. 10. As far as EA No. 402 of 2011 by JD No. 3 is concerned, it is established that JD No. 3 is the brother of JD No. 2. In fact, he acted as the authorized representative of JD No. 2 while signing the agreement with the DH. He also instructed the Counsel on behalf of JD Nos. 1 and 2. However, JD No. 3 is himself not a party to the arbitral Award. In fact, he acted as the authorized representative of JD No. 2 while signing the agreement with the DH. He also instructed the Counsel on behalf of JD Nos. 1 and 2. However, JD No. 3 is himself not a party to the arbitral Award. Consequently, it is not possible to require JD No. 3 to satisfy the decree. To that extent, the objection of JD No. 3 is sustained. It is held that JD No. 3 cannot be made liable to satisfy the decree under execution. Accordingly, EA No. 402 of 2011 is disposed of as such without any order as to costs. 11. EA No. 151 of 2010 seeks transfer of the decree to the Court of the District Judge, Kanpur. It is pointed out by Counsel for the DH that the Award is for recovery for a sum of Rs.1,70,223.57 with interest. JD No. 2 ordinarily resides and works for gain within the jurisdiction of Kanpur. To the best of the knowledge of the DH, JD Nos. 1 and 2 do not have any assets within the jurisdiction of this Court. It is stated that they have movable and immovable assets in Kanpur. 12. In view of the above submissions, this Court is inclined to allow the prayer in EA No. 151 of 2010. The Registry is directed to issue a Transfer Certificate along with the Certificate of Non-Satisfaction of the Decree, in terms of the Award dated 27th February, 1995 along with a copy to the Court of District Judge, Kanpur for the satisfaction of the decree. EA No. 151 of 2010 is allowed in the above terms. 13. As far as Crl Application No. 8774 of 2010 is concerned, after hearing learned Counsel for JD No. 2 and having perused the documents on record, this Court is prima facie satisfied that offence under Section 191, IPC, punishable under Section 196, IPC, has been committed by JD No. 2 in relation to these proceedings. In terms of Section 340, Cr.P.C. read with Section 195(1)(b)(i) thereof, this Court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into the above offence for which a written complaint should be made to the concerned Metropolitan Magistrate against JD No. 2. In terms of Section 340, Cr.P.C. read with Section 195(1)(b)(i) thereof, this Court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into the above offence for which a written complaint should be made to the concerned Metropolitan Magistrate against JD No. 2. Accordingly the Registrar General of this Court is directed to draw up and file a complaint against JD No. 2 in the Court of the Magistrate of competent jurisdiction within four weeks. The said complaint will be accompanied by a certified copy of the entire record, including cases of Crl.M.A. No. 8774 of 2010 and EA No. 327 of 2006. Crl.M.A. No. 8774 of 2010 is disposed of in the above terms. 14. In view of the above order, no further orders are required to be passed in Execution Petition No. 138 of 2006 and the same is disposed of as such. EA No. 327 of 2006 is also disposed of. Petition disposed of.