Himachal Pradesh High Court
M/S Garg Sons Estate Promoters Limited vs Executive Engineer on 9 January, 2025
M/s Garg Sons Estate Promoters Limited versus
Executive Engineer.
Execution Petition No. 9 of 2023
09.01.2025 Present: Mr. Suneet Goel, Senior Advocate with Mr. Vishwas
Kaushal, Advocate, for the applicant/DH.
Mr. Vishav Deep Sharma, Additional Advocate
General, for the non-applicant/JD.
OMP No. 292 of 2024
Instant application [OMP No.292 of 2024] has
been filed under Section 151 CPC, seeking modification
of orders dated 12.01.2024, passed by this Court, in
[OMP No. 607 of 2023].
FACTUAL MATRIX IN EXECUTION
PROCEEDINGS:
Decree Holder/Applicant M/s Garg Sons
Estate Promoter Pvt. Ltd. has filed the Execution
Petition under Order 21 Rule 11 of the CPC for
execution of the award dated 28.09.2022. During the
pendency of Execution Petition, Judgement
Debtor/Respondent herein deposited the awarded
amount of Rs.8.34,00,532/-[Rupees Eight Crore Thirty
Four Lakh Five Hundred Thirty Two] in Registry of this
Court on 28.11.2023.
2. During the pendency of Execution Petition,
Decree Holder/Applicant i.e. M/s Garg Sons Estate
Promoter Pvt. Ltd, has filed an application [OMP No.607
of 2023], seeking release of the deposited amount of Rs.
8,34,00,532/- [Rupees Eight Crore Thirty Four Lakh
Five Hundred Thirty Two]. For seeking release of
amount, the Decree Holder/Applicant undertook to
furnish Security/Bank Guarantee before this Court.
Based on above averments of Decree-Holder, this Court
passed an order on 12.01.2024, directing the Registry to
release the amount subject to furnishing of a Bank
Guarantee and verification thereof as per norms.
The orders passed by this Court in OMP No. 607 of
2023 of 12.01.2024 reads as under:
OMP No.607 of 2023
The Decree-Holder/Applicant is seeking the
release of the deposited amount of
Rs.8,34,00,532/- [Rupees Eight Crore Thirty-
Four Thousand Five Hundred Thirty-Two],
which was deposited in the Registry of this
Court on 28.11.2023. In Para 2 of the
application, it is stated that the applicant is
in need of money for his business purposes
and is ready to furnish any security/bank
guarantee for the release of the aforesaid
amount or on such terms as may be ordered
by this Court.
2. In Para 3 of the application, the
DecreeHolder/Applicant has furnished the
bank account details where he is seeking the
remission of the amount, on release.
3. Mr. Suneet Goel, learned counsel, draws
the attention of this Court, a similar matter
before the Hon’ble Supreme Court of India, in
Special Leave to Appeal (C) No(s).11760-
11761/2018, titled as Manish versus
Godawari Marathawada Irrigation
Development Corporation, wherein the
Hon’ble Apex Court, vide order dated
26.09.2018 had passed the following orders:-
“This Court, on 16.07.2018, passed the
following order: “No one appears for the
respondent, even though served. The
Bombay High Court has ordered 60%
deposit, pending the Section 37 appeal.
We have passed orders stating that
since these are money decrees there
should be 100% deposit, with the
respondent being entitled to withdraw
the amount deposited and furnish
solvent security to the satisfaction of
the High Court. Accordingly, we set
aside the impugned orders dated
19.03.2018 and mandate a 100%
deposit be made within a period of eight
weeks from today. The Special Leave
petitions are disposed of accordingly.”
Upon being mentioned by learned
counsel for the petitioner, the following
sentence is incorporated in the
aforesaid order before the last line:
“The deposit so made may be allowed to
be withdrawn on furnishing solvent
security to the satisfaction of the
Registrar of the High Court.”
4. Mr. Suneet Goel, learned counsel,
further refers to an order dated 16.07.2018,
passed by a Coordinate Bench in Arbitration
Case No.16 of 2018, which reads as under:-
“OMP No.248 of 2018
By way of instant application filed
under Section 151 CPC, prayer has
been made on behalf of the applicant-
claimant for release of amount lying
deposited in the Registry of this Court.
Pursuant to order dated 3.4.2018,
nonapplicant-petitioner has deposited a
sum of Rs. 4,97,44,453/- in the
Registry of this Court. Mr. Suneet Goel,
learned counsel representing the non-
applicant/petitioner stats that amount
referred to herein above can be ordered
to be released in favour of the applicant
subject to furnishing of bank
guarantee.
Mr. Aman Sood, learned counsel
representing the applicant/claimants
states that applicant is ready and
willing to furnish bank guarantee.
Accordingly, in view of above, present
application is allowed and Registry is
directed to release the aforesaid
amount in favour of the applicant-
claimant by remitting the same in the
bank account of the applicant-
claimant, details where shall be
furnished separately within one week.
However, release as ordered by this
Court shall be subject to furnishing of
bank guarantee by the applicant, in the
name of Registrar General of this
Court, which shall be further verified
by the Registry of this Court. Needless
to say, bank guarantee shall be
renewed 15 days prior to its expiry.”
5. By following the mandate of the Hon’ble
Supreme Court and similar orders dated
16.07.2018 in Arbitration Case No.16 of
2018, referred to above, this Court is of the
view that the Decree-Holder/Applicant, shall
furnish the Bank Guarantee in name of
Registrar General, High Court of Himachal
Pradesh, within ten days from today. Upon
verification thereof, further action for
releasing the deposited amount be finalized.
6. However, it is mandated that the bank
guarantee, so furnished by the Decree
Holder/Applicant, shall be kept alive from
time to time, in view of the pendency of the
present proceedings including the Objections
under Section 34, which are also stated to be
pending before the High Court.
7. Consequent upon, the furnishing of the
Bank Guarantee and verification thereof, the
deposited amount, shall be released/remitted
in the bank account of the Decree-
Holder/Applicant as per norms. In view of
this, the application stands disposed of.
Execution Petition No.9 of 2023 List the
matter in the month of March, 2024.
3. Admittedly, the Decree Holder/Applicant M/s Garg
Sons Estate Promoter Pvt. Ltd. failed to comply with the
orders dated 12.01.2024 as undertaken by the Decree
Holder, resulting in non-release of the awarded amount.
PRESENT APPLICATION [OMP NO.292 OF 2024]
4. Applicant-Decree Holder filed an OMP No. 292 of
2024, seeking modification of orders dated 12.01.2024
with the prayer to release the amount of Award to the
Decree-Holder.
PROCEEDINGS ON INSTANT APPLICATION:
5. Upon listing of this application, notice was
issued to Judgement Debtor-Respondents on 8.5.2024
with directions to file reply/instructions in the
matter. Orders on record reveal that Respondents
Judgement Debtor were granted further opportunity to
file Reply to this application, for modification of orders
and consequential release. On 4.10.2024 Learned State
Counsel stated that the reply to application seeking
modification of orders has been filed in Registry of this
Court. Since the reply was not on record, the matter was
adjourned for 22.11.2024. Upon listing of matter on
29.11.2024, Learned Vice counsel for Decree Holder
prayed for adjournment on account of non-availability of
Learned Senior Counsel and therefore, the matter was
adjourned on 26.12.2024 when the same was adjourned
by the Co-ordinate Bench, for being listed before the
Appropriate Bench on 03.01.2025. Upon listing of this
application, the matter was taken up for consideration on
03.01.2025 when the matter was heard for some time.
6. During the course of hearing, Learned Senior
Counsel pointed out that the order passed by this Court
on 12.01.2024 may be modified and the prayer for
release may be acceded to, in view of the fact
that the Applicant-Decree Holder has placed on record
the revenue records as Annexure P-4, with the
application alongwith valuation of land made by valuer.
Learned Senior Counsel submits that the valuation
report reveals valuation of lands as mentioned in
Jamabandi, which were sought to be mortgaged in favour
of the Judgement Debtor-State Authorities to be more
than Rs.12,90,48,800 [Rupees Twelve Crore Ninety Lakh,
Forty-Eight Thousand and Eight Hundred only], vis-a-vis
the Award amount of Rs.8.34,00,532/-[Rupees Eight
Crore Thirty Four Lakh Five Hundred Thirty Two], which
is sought to be released.
With submissions, the prayer for release has been
made.
7. Learned State Counsel has opposed the prayer for
release on the ground that in case, the Award has
overturned then, the State will face difficulty in
recovering the aforesaid amount or any part thereof.
Learned State Counsel submits that in this eventuality
the interest of the State deserves to be adequately
safeguarded before acceding to payer for release, if any,
by ensuring adequate security (i.e. by way of mortgage
etc.) of land etc; which is free from all encumbrances.
8. Faced with this situation, Learned Senior Counsel
for the Decree Holder-applicant upon listing of the
matter, on 3.1.2025, filed an affidavit in Registry of this
Court on 4.1.2025 to the effect that the land contained in
Annexure P-4, which is sought to be mortgaged as
security for seeking release of awarded amount is free
from all encumbrances. Applicant-Decree Holder has
also furnished an undertaking that he shall not transfer
and alienate the property till the matter is adjudicated
before this Court.
OMP No. 292 of 2024 ANALYSIS THEREOF:
9. Matter was taken up in pre-lunch session
at instance of Learned State Counsel, so as to have
Instructions in the matter.
10. Matter has now been taken up in post lunch
session, when, on 09.01.2025 Learned State Counsel has
filed Fresh Instructions by Executive Engineer, National
Highway Division, HPPWD, Rampur Bushahr stating that
the respondents have objections to the prayer for release
and modification to the orders dated 12.01.2024 on the
ground that respondents could not verify the status of the
properties as mentioned in Para 6 and Annexure A-4 with
the application.
11. In these circumstances, objections for modification
and prayer for release has been reiterated by the Learned
State Counsel.
12. Taking into account the entirety of the facts and
circumstances and the submissions made by Learned
Senior Counsel as well as by Learned Counsel for the
respondent, this Court modifies the orders dated
12.01.2024 passed in OMP No. 607 of 2023 only to the
extent that an amount of Rs.3,00,00,000/-
[Rs. Three Crores only] at this stage, be released to the
applicant/decree-holder against the total awarded
amount, which is subject matter of pending execution.
13. This Court directs, Registrar (Judicial) or Registrar
General of this Court to ensure verification of revenue
records, as mentioned in Para 6 in Annexure A-4, as
detailed in instant application, and to seek-undertake a
Fresh Valuation from a Competent Authority, before giving
effect to this order for release after due verification. It is
mandated that upon satisfaction, in case the Valuation of
properties in Annexure A-4, annexed with present
applications, turns out to be Rs.Three Crores or more,
then only, the consequential action, for release of amount
be taken, in favour of applicant-Decree Holder within two
weeks thereafter.
14. Entire process, as above, be completed in terms of
this order within six weeks from today.
15. In order to adjust the rights, interests and equities
of parties herein, this Court, further clarifies, that before
actual release the decree holder may be mandated to
furnish Surety Bond and Undertaking not to alienate,
transfer or encumber the property [as in Annexure A-4]
during the pendency of Execution Petition Proceedings
sought to be mortgaged.
16. In view of the above discussion, the order dated
12.1.2024, shall stand modified to this extent only, and
the instant application shall stand disposed of,
accordingly.
9th January, 2025 (Ranjan Sharma)
™ Judge
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