TMI Blog2016 (9) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. Therefore, the Executing Court has power to regulate the procedure before deciding the claims or objections which are filed by the third parties. Keeping that in mind, the learned Single Judge has made those observations in para 4 of the said order. The application for issuance of precept under section 46 is taken out firstly in cases where the property is situated outside the jurisdiction of the Court and, secondly, if the property which is to be attached is a movable property then order of attachment is passed, so that the execution does not become infructuous. The learned Single Judge therefore, in our view, has correctly followed the procedure laid down under CPC. It is therefore clarified that if such a remedy is available to the Appellant under Order 21 Rule 58, Appellant can also exhaust that remedy and the learned Judge before whom such an application is made shall accordingly decide it in accordance with law. Appeal dismissed. - V.M. KANADE AND REVATI MOHITE DERE, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, Tamil Nadu, a precept under section 46 of CPC had to be filed in this Court for attaching the property lying in these Ports. So far as Navalaki Port is concerned, there was another consignment standing in the name of Sharp Corporation Limited ( Sharp ) and, initially, a precept was filed also for attachment of the said coal at Navalaki Port. 4. The learned Single Judge issued a precept and an order of attachment in respect of the coal which was purportedly standing in the name of Sharp. They challenged the order of issuance of precept and attachment by filing Chamber Summons. The said Chamber Summons was dismissed and against this order, the Sharp filed an appeal in this Court. This Court, after going through the order passed by the learned Single Judge, came to the conclusion that the Single Judge had held that the Bhatia Group was one single entity and this was done by piercing the corporate veil without giving notices to the two Companies viz. BGTL and BIL which were the Companies registered under the Companies Act, 1956. It was also held that before issuing the precept, inquiry had to be made by the Court to find out whether the Company against whom the precept order and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion that BIIL and BIL were, in fact a single economic entity and lifted the corporate veil. The learned Single Judge gave detailed reasons as to why she came to the conclusion that BIIL and BIL were a single entity and observed that the Bhatia Group was, in fact, controlled by Surinder Singh Bhatia who was the main person controlling all the Companies. The learned Single Judge therefore held that though the coal lying at Tuticorin Port, Tamil Nadu was standing in the name of BIIL, it actually belonged to BIL and extended the precept. In an appeal filed by BIIL against the said order, this Court firstly held that even in execution proceedings, the Court was entitled to lift the corporate veil if it came to the conclusion that the judgment-debtor was trying to siphon off the money to other entities for the purpose of defeating the Award passed in favour of the judgment-creditor. Secondly, this Court came to the conclusion that the learned Single Judge was justified in lifting the corporate veil and giving finding that BIIL and BIL were one single entity. The appeal which was filed by BIIL was therefore dismissed. 7. This matter was also heard thereafter and both the learned Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has erred in relying on transfer agreement dated 28/11/2009 for the purpose of coming to the conclusion that by this agreement monies were siphoned off. He then placing reliance on the balance sheet, invited our attention to the column of sundry debtors and sundry creditors in the said balance-sheet and submitted that the figure mentioned in the column of sundry debtors did not reflect the amount which was due and payable to the Vitol S.A. He therefore submitted that this could not have been considered as the material in support of the judgment-creditor's case. He submitted that this was clear from the chart of current liability. He submitted that the figures mentioned therein also did not match with the claim made by Vitol S.A. He submitted that several other aspects have been considered by the learned Single Judge and the learned Single Judge has given finding regarding the maintaining of Minute Books. He submitted that the learned Single Judge without giving any opportunity to the Appellant came to the conclusion that the said Minute Books were fabricated and were not maintained as per the provisions of the Companies Act, 1956. He then submitted that the finding recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an objection to the attachment. The objection would have to be made under Order 21 Rule 58 of the CPC. This is not an application under Order 21 Rule 58 of the CPC. 12. The learned Single Judge was constrained to give the said finding since all these points were urged before her by the Appellant herein and she had therefore to deal with those submissions which were made and give her opinion on the said arguments. It is therefore not open for the Appellant to make a grievance that the learned Single Judge exceeded her jurisdiction while deciding the Chamber Summons filed by the Appellant herein. 13. The learned Counsel appearing on behalf of Respondent No. 2 has taken us through the judgment and order of the learned Single Judge and submitted that the learned Single Judge has considered all the circumstances before coming to the conclusion that the transfer agreement was sham and bogus document which was executed only for the purpose of defeating the claim of Respondent No. 2. He submitted that though the agreement was executed on 28/11/2009, the date for completion of agreement was extended till 30/01/2011 i.e. after the Award was passed in favour of Respondent No. 2 i.e. on 17/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination, - (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prima facie shown that the property to be attached belonged to the award debtor. The application to be made may be correct or incorrect. The Court would consider the application made. The Court would inquire about the entitlement of the award creditor which may be by way of right, title and interest of the award debtor which is sought to be attached. The Court would then issue the precept. 18. The learned Single Judge was therefore conscious of the procedure which is to be followed in such cases. The application for issuance of precept under section 46 is taken out firstly in cases where the property is situated outside the jurisdiction of the Court and, secondly, if the property which is to be attached is a movable property then order of attachment is passed, so that the execution does not become infructuous. The learned Single Judge therefore, in our view, has correctly followed the procedure laid down under CPC. It is therefore clarified that if such a remedy is available to the Appellant under Order 21 Rule 58, Appellant can also exhaust that remedy and the learned Judge before whom such an application is made shall accordingly decide it in accordance with law. With this clar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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