ALOK KHANNA Vs. RAJDARSHAN HOTEL PVT LTD

JUDGEMENT

(1.) The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 13/11/2017 passed by XIII Additional District Judge, Bhopal in Execution Case No.85-A/2010.

(2.) Brief facts of the case are that the respondent had filed a civil suit for recovery of an amount of Rs.50,00,000/- against the petitioner before Additional District Judge Udaipur on the ground that respondent had granted a loan of Rs.50,00,000/- to the petitioner on short terms basis through six demand drafts on a condition that the loan would attract interest @ 12% per annum and in default thereof interest would be payable @ 24% per annum. The petitioner has paid only sum of Rs.2,00,000/- and no payment thereafter was made by the petitioner to the respondent. The petitioner filed a written statement and stated that no loan of Rs.50,00,000/- had ever been sought by the petitioner from the respondent and the amount of Rs.50,00,000/- paid by the respondent to the petitioner was by way of security in lieu of the amount payable by sister concerns of the respondent's company.

(3.) The Additional District Judge, Udaipur, Rajasthan had decreed the suit filed by the respondent vide judgment and decree dated 29/08/2007. Being aggrieved by that judgment and decree, the petitioner has preferred F.A.No.603/2007 along with an application for staying the execution of impugned decree passed by the Court of Rajasthan at Jodhpur. The High Court vide order dated 16/11/2010 has rejected the said application for stay. The respondent thereafter filed an application under Order 21 Rule 11 of the CPC for execution of the decree dated 29/08/2007. Initially the application for execution of the decree was filed before the Additional District Judge, Udaipur which was subsequently transferred to the Court at Bhopal. The petitioner also filed an application on 06/12/2010 under Order 21 Rule 26 of the CPC for staying the execution proceedings submitting that he does not possess any immovable property within the jurisdiction of Bhopal, but he is having an immovable property in the industrial area Mandideep, Tehsil Gauharganj District Raisen, whose current market value is of Rs.2,34,65,000/-. It was further stated that the said First Appeal is pending before the High Court, therefore, the aforesaid property be kept as security by the decree holder towards the decreetal amount. The respondent had filed an application under Order 21 Rule 41(3) of the CPC for examination of judgment-debtor and taking action against him since no affidavit as required under Order 41 Rule (2) filed by him.