Chandigarh

StateCommission

AEA/5/2024

GAGAN CHOPRA - Complainant(s)

Versus

NISHA THAKUR - Opp.Party(s)

ANURAG SINGH TAGRA

05 Dec 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

==================

Appeal Execution No.	:	AEA/5/2024
Date  of  Institution	:	13/09/2024
Date   of   Decision	:	05/12/2024

 

 

 

 

 

 

Gagan Chopra son of Late Sh. Krishan Lal Chopra, Resident of House No. 317, Sector 21-A, Chandigarh.

 

…. Appellant – Objector

 

 

VERSUS

 

 

1.     Nisha Thakur wife Sh. Narotam Kumar Ghezta, Resident of Charan Niwas, Food House, Cementary, Sanjauli, Shimla, Himachal Pradesh.

 

…. Respondent – Decree Holder

 

2.     M/s Siswan Paradise Pvt. Ltd., through M/s Emerging India Real Estate, SCO 46-47, First Floor, Sector 9-D, Chandigarh, through its Managing Director.

 

3.     M/s Emerging India Real Assets, SCO 46-47, First Floor, Sector 9-D, Near Matka Chownk, Madhya Marg, Chandigarh, through its Managing Director.

 

…. Respondents – Judgment Debtors

 

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI    PRESIDENT

MRS. PADMA PANDEY                   MEMBER

RAJESH K. ARYA                           MEMBER

 

ARGUED BY

:

Sh. Anurag Singh Tagra, Advocate for the Appellant – Objectors. Sh. Raman K. Sharma, Advocate for the Respondent No.1/DH.

 

PER PADMA PANDEY, MEMBER

 

 

 

1.         The Appellant-Objector – Sh. Gagan Chopra has moved misc. application bearing no. MA/821/2024 for condoning the delay of 57 days as per CPA 2019 and 72 days as per CPA 1986 (as per office 37 days) in filing the instant Appeal Execution. The cause shown is sufficient. The delay is condoned and the appeal shall be treated to be within time. Accordingly, misc. application bearing no. MA/821/2024 stands disposed of.

 

2.         The present Appeal Execution has been filed by the Appellant/Objector challenging the impugned order dated 30.05.2024 vide which the Learned District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), disposed off the Objection Petition filed by the Objector in Execution Application bearing No. EA/86/2022 titled as “Nisha Thakur Vs. M/s Siswan Paradise Pvt. Ltd. & Anr.”, arising from order dated 11.01.2017 passed by the Ld. District Commission in Consumer Complaint No. 486 of 2016, in the following terms: -

 

“6]    In the light of the aforesaid discussion, the objection petition filed by the Objector, in the present execution application, being not maintainable, deserves dismissal and accordingly, the same is hereby dismissed, with costs of ₹5,000/-.”

 

3.         The backdrop of the case is that the decree dated 11.01.2017 was passed by the Ld. District Commission and following relief was granted:-

“7.    In the light of above discussion, the present Complaint succeeds against Opposite Parties No.1 & 2. The same is allowed qua them. We direct the Opposite Parties No.1 & 2 as under: -

 

i.      To refund the amount of Rs.8,55,000/- to the Complainant with interest @9% per annum from the date of deposit(s) till realization.

 

ii.     To pay Rs.50,000/- as compensation to the Complainants for the unfair trade practice and harassment caused to them.

 

iii.     To also pay a sum of Rs.11,000/- to the Complainants as litigation expenses.

 

8.     This order be complied with by OPs No.1 & 2 jointly and severally, within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr. No. (i) & (ii) above, with interest @12% per annum from date of filing of the present complaint, till realization, apart from compliance of direction at Sr. No. (iii) above.” 

 

4.         To comply with this decree, the Decree Holder/ Complainant (Respondent No.1 herein) moved an execution application and in that execution application the order dated 30.05.2024, which is impugned before us, as mentioned above in Para No.1, was passed.

 

5.         We have heard the Learned Counsel for the Parties and also carefully perused the record with their able assistance.

 

6.         Learned Counsel for the Appellant/Objector, inter alia, submits that the Appellant/ Objector – Sh.Gagan Chopra is not concerned nor remotely connected with the Decree Holder or the Judgment Debtors, therefore, the Decree Holder is not entitled to any relief against the Appellant/Objector for compliance of order dated 11.01.2017 or the impugned order dated 30.05.2024 as Appellant/Objector is under no obligation to comply with the order dated 11.01.2017 passed by the Ld. District Commission in Consumer Complaint No. 486 of 2016. He has further submitted that the order passed by the Ld. District Commission suffers from jurisdictional error and material irregularity by issuing attachment warrants to the Collector, U.T. Chandigarh for attachment of the personal residential house of the Appellant/Objector i.e. H.No. 317, Sector 21-A, Chandigarh in order to recover the decreetal mount as arrears of land revenue, in as much as, the decree in question could have easily been satisfied in favour of the Decree Holder by attaching the other properties mentioned and bank accounts of the Respondents/Judgment Debtors. It has been also submitted that the Ld. District Commission has erroneously and illegally held that the doctrine of lis pendens is applicable to the subject property i.e. House No. 317, Sector 21-A, Chandigarh which is in actual, valid and legally tenable physical possession and registered ownership of the Appellant/Objector by virtue of registered sale deed dated 30.09.2022. A prayer has therefore been made for setting-aside the impugned order dated 30.05.2024 and for quashing the execution proceedings against the Appellant/ Objector and all the attachment orders and coercive orders issued by the Ld. District Commission in Execution Application No. 86 of 2022 in Consumer Complaint No. 486 of 2016 against his residential house i.e. House No. 317, Sector 21-A, Chandigarh. Conversely, it has been contended on behalf of the Respondent No.1/ Complainant/Decree Holder that the order passed by the Ld. District Commission is quite just & right and does not call for any interference as the Objector is a bonafide purchaser for consideration of the subject house and got the sale deed executed in his favour in respect of subject house just to defeat the rights of the Complainant/Decree Holder. 

 

7.         Having bestowed our anxious consideration to the matter, we are of the opinion that in the light of the material on record the instant Appeal Execution deserves to be dismissed for the reasons to be recorded hereinafter.

 

8.         Admittedly, the Appellant/Objector - Sh.Gagan Chopra has purchased the house in question from Sh. Gurpreet Singh Sidhu/ Judgment Debtor vide sale deed dated 30.09.2022, which is ex-facie after decision of the consumer complaint and during pendency of the execution application aforesaid before the Ld. District Commission. We are of the considered view that the transaction in question vide sale deed no.4415 dated 30.09.2022 is hit by doctrine of lis pendens as contained in Section 52 of the Transfer of Property Act, 1882 (in short the TP Act) as well the same is fraudulent  as contained in Section 53 of TP Act. For ready reference, Section 52 of the TP Act is reproduced hereunder:-

 

“….52. Transfer of property pending suit relating thereto.—During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [* * *] of [any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

 

[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force…”

 

                Notably, the Consumer Complaint out of which the afore-stated execution application has arisen was filed on 05.07.2016 and was decided on 11.01.2017 by the Ld. District Commission and if any property has been transferred by the Respondents/Judgment Debtors after filing of the said Consumer Complaint that shall be hit by the doctrine of lis pendens. In the present case, the property in question was sold on 30.09.2022 i.e. during pendency of the Consumer Complaint and the execution application respectively.  Thus, as per settled principle of law the doctrine of lis pendens will apply from the date of filing of the Consumer Complaint.  Thus, the transaction by way of sale deed dated 30.09.2022 in respect of the house in question is hit by the doctrine of lis pendens.

 

9.         Now coming to fraudulent transaction, in our considered view, the transaction by way of sale deed dated 30.09.2022 has been made between Sh.Gurpreet Singh Sidhu and Gagan Chopra, with intent to defeat and delay the creditors/decree holders, and as such, the transfer shall be voidable qua their rights in view of Section 53 of the TP Act. It also appears that Sh.Gagan Chopra had not acted in good faith. He has already moved various applications before this Commission and was well within the knowledge regarding liability of Sh.Gurpreet Singh Sidhu/Judgment Debtor. In similar circumstances, the Hon’ble Allahabad High Court, in the case titled as Angali Tewari (Since Deceased) Vs. Babban Tewari And Anr., AIR 1982 All 316 has held as under:-

“…..It is sufficient for the purpose of the present case that the transfer was found to be sham and fictitious. The result of the fact found by the two courts below is that a transfer was only a make believe. In fact, no transfer took place and the property remained where it was. If that was so it was not necessary to invoke Section 53 of the T. P. Act at all for [holding that the property was liable to attachment and sale in execution of the decree in suit No. 131 of 1962 against the second defendant, as notwithstanding the apparent transfer, the property in fact continued to belong and remain in possession of the second defendant..”

 

                Furthermore, under similar circumstances, the Hon’ble Supreme Court of India also in Sarvinder Singh Vs. Dalip Singh and Ors., (1996) 5 SCC 539 has inter alia, held as under:-

“8.…….It is clear that the sale transactions by defendant nos.1 to 3 in favour of defendant nos.4 to 6 were intended to defeat the claim of the plaintiffs in the suit and the suit property could not have been transferred in favour of defendant nos.4 to 6 during the pendency of the suit filed by the plaintiffs. The finding recorded by the Lower Appellate Court that the defendant nos.4 to 6 were not aware of the agreements between the plaintiffs on one hand and the defendant nos.1 to 3 on the other hand, cannot be accepted having regards to the oral evidence of DW 1 and DW 6. The Lower Appellate Court was not right in turning down the findings on this issue recorded by the trial court. Even otherwise, during the pendency of the suit the defendant nos.1 to 3 were estopped from  transferring the suit land in view of the embargo of Section 52 of the Transfer of Property Act, 1882 and, therefore, the sale deeds in favour of defendant nos.4 and 5 and defendant no.6 executed by defendant nos.1 to 3 are required to be held as illegal…..”

 

10.         In the present matter, the decreetal amount, which was due before 30.09.2022 was neither paid by the Respondents/Judgment Debtors nor by the Appellant/ Objector. The Decree Holder is creditor in terms of Section 53 of TP Act, as she has obtained the decree in said Consumer Complaint. Thereafter, the transaction between Sh. Gurpreet Singh Sidhu/ Judgment Debtor and Sh.Gagan Chopra appears to be fraudulent transaction as nothing has been paid to the decree holder.

 

11.         Learned Counsel for the Appellant/ Objector has submitted that in Appeal Execution No. 10 of 2024 (against the order dated 10.01.2024 in M.A. No. 201 of 2023 in Execution Application No.68 of 2022 in Consumer Complaint No. 18 of 2019 titled “Ravi Kant Sharma Vs. Emerging Valley Pvt. Ltd. & Another” of this Commission wherein the subject property i.e. House No. 317, Sector 21-A, Chandigarh was attached in order to recover the decreetal amount as arrears of land revenue), vide order dated 19.07.2024 the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has granted stay with regard to the property aforesaid i.e. House No. 317, Sector 21-A, Chandigarh till 21.08.2024 and now, vide order dated 21.08.2024, the said interim order has been continued till 26.12.2024, the date now fixed before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. The Hon’ble National Consumer Disputes Redressal Commission also directed that no coercive steps be taken in regard to the subject property. However, with utmost regard to our command, we are not inclined to accept the submissions made by the Learned Counsel because the Decree Holder was not party to that case and also perusal of contents of the orders passed by the Hon’ble National Consumer Disputes Redressal Commission show that directions were passed in that case only. That order is not an order in rem rather in personam. In this view of the matter, we are of the considered view that the transaction between Sh.Gurpreet Singh Sidhu/Judgment Debtor and Sh.Gagan Chopra, Appellant/Objector vide sale deed no.4415 dated 30.09.2022 qua sale of the house in question is hit by the doctrine of lis pendens and also the same being fraudulent transaction under Section 53 of the TP Act, the said house is liable to be attached. Thus, to our mind, no case is therefore made for any interference in the well reasoned findings recorded by the Ld. Lower Commission.

 

12.         No other point, was urged, by the Learned Counsel for the parties.

 

13.         In view of the above discussions, we do not find any merit in this execution appeal and the same is hereby dismissed. No costs.

 

14.         All the pending application(s), if any, also stands disposed off accordingly.

 

15.         Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion.

Pronounced

05^th Dec., 2024

 

                                         Sd/-                         

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

                                                                       

                                         Sd/-                         

                                (PADMA PANDEY)

MEMBER

 

Sd/-

                                                        (RAJESH K. ARYA)

MEMBER

 

“Dutt”