Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 460 (HP)

Vinod Gupta v. Navkar Poly Plast Co.

2016-04-08

RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, J. This petition is instituted against the order dated 25.7.2015, rendered by the learned Civil Judge (Sr. Divn.), Sirmaur District at Nahan, H.P. in CMA No. 54-CM/6 of 2014 in CMA No. 21/6 of 2014. 2. Key facts, necessary for the adjudication of this petition are that the respondent No.1 (hereinafter referred to as decree holder) instituted Civil Suit No. 13-CS/1 of 2009 against respondent No. 2 (JD) as well as the petitioner (JD), namely, Siri Ram Straw Products Ltd and Vinod Gupta, respectively, for recovery of Rs.10,80,000/-. The Civil Suit was decreed by the learned District Judge, Sirmaur District at Nahan on 16.7.2010. The defendants-judgment debtors were proceeded ex parte. The decree holder instituted Execution Petition titled as M/S Navkar Poly Plast Company versus Siri Ram Straw Products Ltd. It was sent to the learned District Judge, Gurgaon for execution. 3. The petitioner (JD) moved an application for staying the execution petition in the Court of learned Addl. District Judge, Gurgaon on 3.7.2015, wherein he has undertaken to give bank guarantee/FDR of the decreetal amount. The petitioner (JD) also moved an application under Order 9 Rule 13 CPC seeking setting aside of the judgment and decree dated 16.7.2010 before the learned District Judge, Sirmaur District at Nahan. The learned District Judge, Sirmaur District at Nahan vide order dated 26.2.2014 returned the petition to the petitioner (JD) to present the same in the Court of competent jurisdiction. It is, in these circumstances, the application under Order 9 Rule 13 CPC came before the learned Civil Judge (Sr. Divn.), Sirmaur at Nahan. The petitioner filed an application under Order 21 read with Section 151 CPC for staying the operation of ex-parte judgment and decree dated 16.7.2010 rendered in Civil Suit No. 13-CS/1 of 2009. 4. According to the averments made in the application filed by the petitioner (JD) under Order 9 Rule 13 CPC, he had already resigned as Director of the Company i.e. Siri Ram Straw Products Ltd. He had no concern with the Company w.e.f. 12.3.2008. He was wrongly impleaded as Managing Director whereas the liability was that of the Company. The personal immoveable property of the petitioner (JD) was attached and tried to be sold in auction by the decree holder. The application was contested by the decree holder. He was wrongly impleaded as Managing Director whereas the liability was that of the Company. The personal immoveable property of the petitioner (JD) was attached and tried to be sold in auction by the decree holder. The application was contested by the decree holder. The petitioner (JD) has filed an application for staying the execution petition in the Court of learned Addl. District Judge, Gurgaon on 3.7.2015, wherein he has undertaken to give bank guarantee/FDR of the decreetal amount. The learned Advocate appearing on behalf of the decree holder has submitted at the bar that the undertaking given in the Court of learned Addl. District Judge, Gurgaon on 3.7.2015 has not been honoured. 5. I have heard learned counsel for the parties and have also gone through the impugned order dated 25.7.2015, carefully. 6. The judgment and decree in question is dated 16.7.2010. In the Civil Suit, one person on behalf of Vinod Gupta and Siri Ram Straw Products Ltd. appeared in the Court of learned District Judge on 24.6.2010, as per the record and took time for filing written statement. However, no written statement was filed. The petitioner (JD) and respondent No. 2 were proceeded as ex-parte and ex-parte judgment and decree for sum of Rs. 6,27,914/- plus interest at the rate of 24% per annum w.e.f. 4.10.2006 till its realization was passed. The petitioner (JD) himself has admitted that he has received summons from the Court in the Civil Suit on 24.6.2010. Thus, it is evident that despite the receipt of summons, the petitioner (JD) has not chosen to contest the suit and has suffered ex-parte judgment and decree. The judgment and decree was sent for execution to the learned Addl. District Judge, Gurgaon. The learned Addl. District Judge, Gurgaon restrained the petitioner (JD) from transferring or changing the nature of the property by way of sale, gift or otherwise and prohibited any person from receiving the same by way of sale, purchase, gift or otherwise. The warrant of sale under Order 21 Rule 66 CPC was also issued by the learned Addl. District Judge, Gurgaon on 13.5.2015. The house was put up for sale on 4.7.2015. 7. Surprisingly enough, the petitioner (JD) has also filed the Civil Suit in the Court of Civil Judge (Sr. The warrant of sale under Order 21 Rule 66 CPC was also issued by the learned Addl. District Judge, Gurgaon on 13.5.2015. The house was put up for sale on 4.7.2015. 7. Surprisingly enough, the petitioner (JD) has also filed the Civil Suit in the Court of Civil Judge (Sr. Divn.), Gurgaon titled as Vinod Gupta Versus Navkar Poly Plast, challenging the judgment and decree passed in Civil Suit No. 13-CS/1 of 2009 decided on 16.7.2010 on the ground of fraud and mis-representation. The application under Order 9 Rule 13 CPC ought to have been filed within 30 days from the date of decree i.e. 16.7.2010, however, the petition under Order 9 Rule 13 CPC has been filed on 16.1.2014. The petitioner (JD) has not placed any tangible material on record even to establish prima-facie that he ceased to be Director of the Company on 12.3.2008. The petitioner (JD) has also not placed any documents on record regarding the change of the name of the Company. Thus, there is no illegality or perversity in the impugned order. 8. Accordingly, there is no merit in this petition. The same is dismissed, so also the pending application (s), if any.