Punjab-Haryana High Court
M/S. Maruti Ltd. (In Liqn.), Chandigarh ... vs M/S. Pan India Plastic Pvt. Ltd. on 20 November, 1992
Equivalent citations: AIR1993P&H215, [1995]83COMPCAS888(P&H), (1993)103PLR339, AIR 1993 PUNJAB AND HARYANA 215, (1995) 4 COMLJ 349, (1994) 2 BANKCLR 56, (1993) 1 BANKLJ 127, (1993) 1 LANDLR 431, 1993 REVLR 1 394, (1993) 2 RRR 538, (1993) 1 PUN LR 339, (1995) 83 COMCAS 888
ORDER
1. On March, 2, 1984 a decree for recovery of Rs. 1,29,562.40 with interest and costs was passed in favour of the decree-holders M/s. Maruti Ltd. and M/s. Maruti Udyog Ltd. against the judgment-debtor M/s. Pan India Plastic Pvt. Ltd. through Rabindera Grewal, Managing Director and Shri Ranindra Grewal Managing Director, M/ s. Pan India Plastic Pvt. Ltd. Execution of the decree was taken in this Court for recovery of the decretal amount which included interest and costs was stated to be Rs. 2,00,364.50, by attachment and sale of movable property described as air-conditioner, car, scooter, electric fans, radio, transistors, T.V., refrigerator, machinery, office furniture, cash, all other goods and every other movable and immovable property found at the spot. 'Thus warrant of attach-
ment was issued. The attachment could not be effected as per report on the warrant of attachment which is Exhibit A.4. The report is dated May 7, 1985.
2. Some contempt proceedings were initiated by the Court in view of the report-Exhibit A.4 against two persons, namely, Rabindra S. Grewal and Dhan Raj. Ultimately both these persons submitted affidavit copies which are Annexures A. 2 and A.3. They tendered unqualified apologies for causing directly or indirectly hindrance in the execution of warrant of attachment issued against the judgment-debtor. They sought forgivaness from this Court. Thus, in view thereof no further action was taken against the aforesaid two persons by the Court.
3. The decree-holders moved the present application C. A. No. 59 of 1986 in Execution Petition No. 5/l of 1984 under Order 21, Rule ll-A read with S. 55 read with S. 151 of the Code of Civil Procedure for arrest and detention of the Managing Director of judgment-debtor No. 1, M/s. Pan India Plastic (P) Ltd., which is for disposal. The aforesaid facts have been mentioned in the application. In para 2 of the application it is mentioned that the judgment-debtor did not permit the execution of the warrant of attachment issued by this Court. The Process Server and the nominee of the decree-holder were not allowed to enter the premises to effect the attachment. The resistance was offered to the extent that the entrance gate was locked and was not opened in spite of the fact that the Civil Nazir accompanied the representative of the decree-holder. In para 3 reference has been made of issuing notices to Shri Rabindra Singh Grewal and Dhan Raj Chowkidar and affidavits filed by them. It is not considered necessary to refer in detail about the matters mentioned in the affidavits. Suffice it to say that they stated that the property of the Company had already been sold under orders of Delhi High Court and the remaining land and property was being auctioned by the Haryana Financial Corporation. Along with the execution application affidavit of Mohinder Singh, Assistant Secretary, Maruti Udyog was filed. Reply to the application was filed by way of affidavit of Rabindra S. Grewal wherein he stated that he had no assets left of his own and the assets sought to be attached at 14/3, Palam, Gurgaon Road, did not belong to him but were in fact totally owned by Mr. B. S. Grewal, I.C.S. (Retired), (his father). In the affidavit filed by Shri Dhan Raj, he stated that he was Chowkidar of Shri B. S. Grewal at the farm-house and had nothing to do with the Company against whom warrant of attachment was issued and that he never obstructed attachment of the property.
4. The present, application remained pending for six years without any progress in the proceedings. When the matter was taken up on November 19, 1992, statements of counsel for the parties were recorded. Counsel for the decree-holder in his statement produced into evidence affidavits of Mohinder Singh, Assistant Secretary of Maruti Udyog Limited, Rabindra Grewal, Dhan Raj, report of Nazir, Gurgaon, and a letter of Shri G. S. Grewal, dated August 19, 1985. He further stated that he was not to produce any other evidence in support of his application. Counsel for the judgment-debtor raised no objection to the admitting into evidence aforesaid documents and he stated that he will not produce any evidence in this application. Thus aforesaid documents were admitted into evidence as Exhibits A. 1 to A.5. Their photo-copies as such were placed on the file of this application. I have heard counsel for the parties.
5. Order 21 Rule ll-A of the Code of Civil Procedure and Section 51 of the C.P.C. read as under :--
"11-A. Application for arrest to state grounds :-- Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for."
S. 51. "Powers of Court to enforce execution :-- Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree :--
(a) by delivery of any property specifically decreed;
(b) by attachment and sale without attachment of any property;
"(c) by arrest and detention in prison for such period not exceeding the period specified in S. 58, where arrest and detention is permissible under that section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require;
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied :--
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,--
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account."
6. Article 21 of the Constitution of India provides protection of life and personal liberty to the citizens. As per this provision no person is to be deprived of his life or personal liberty except according to procedure established by law. When the Courts are required to deprive a person of his personal liberty while ordering his detention in the prison, such like provisions are to be strictly complied with before such orders are passed. Order 21 Rule 11-A of the C.P.C. as reproduced above is a provision in the statute which affects the personal liberty of a citizen. If such an application is filed it has to accompany an affidavit stating the grounds on which arrest is applied for. Simply on doing so, the order of arrest is not required to be passed. As provided under S. 51 of the C.P.C. in the case of a decree for the payment of money execution of detention in prison is not to be ordered unless the judgment-debtor is afforded an opportunity of showing cause why he should not be committed to prison and the Court is required to record reason in writing for its satisfaction of the grounds mentioned therein. On failure to establish one of such grounds on which reliance is placed, order detaining the judgment-debt or in prison cannot be passed. These provisions have been subject matter of consideration by the judicial Courts. A brief reference is considered appropriate at this stage. The Supreme Court in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470, laid down that as long as there is no dishonesty and mala fides on the part of the judgment-debtor to discharge his obligation, committing him to civil prison would amount to violation of Art. 11 of International Covenant on Civil and Political Rights and Art. 21 of the Constitution of India. The aforesaid decision was referred and relied upon by the Karnataka High Court in K. Karunakar Shetty v, Syndicate Bank, Manipal, AIR 1990 Karnataka 1, and it was observed as under (para 4) ;--
"Therefore, it is the decree-holder who has to demonstrate that the judgment-debtor has wilfully with the mala fide intention, to deprive the benefit of the decree, is refusing (refused) to pay the decretal amount in spite of having sufficient means to pay. The decree-holder has not discharged that obligation by any cogent evidence."
7. The Madras High Court in K.V. Muthu Pathar v, R. S. Mani Rao, AIR 1956 Madras 580, while referring to the provision of S. 51 of the Code of Civil Procedure observed that the Court is required to give opportunity to the judgment-debtor showing cause why he should not be committed to prison. The Calcutta High Court in I.K. Merchants v. Indra Prakash Karnani, AIR 1973 Calcutta 306, observed that onus is very heavy on the decree-holder who must satisfy the Court that proviso to S. 51(c) is attracted before a judgment-debtor is sent to prison. The Madras High Court in T. Kunhiraman v. Pootheri Illath Madhavan Nair, AIR 1957 Madras 761, held that the provisions of S. 51 of the C.P.C. are mandatory. This Court also had occasion to consider the scope of S. 51 of the C.P.C. in Pritam Singh v. M/s. S. B. Saini Brothers, (1987) 91 Pun LR 405, and it was observed as under :--
"It is thus clear that unless one of the conditions specified in the proviso to S. 51 of the Code of Civil Procedure is present, arrest and detention of the judgment-debtor cannot be ordered. It is not the case of the respondent that the petitioner is likely to abscond or leave the local limits of the jurisdiction of the executing Court with the object or effect of obstructing or delaying the execution of the "decree nor any material has been brought on the record that after institution of the suit in which the decree has been passed, he has dishonestly transferred, concealed or removed any part of his property or committed any other act of bad faith in relation to it."
In Bhoop Singh Jakhar v. M/s Gauri Shankar Roshan Lal, 1986 Pun LJ 655, this Court held that notice to the judgment-debtor to show cause must be given before directing his detention in prison.
8. Reverting to the merits of the case, the question for consideration would be as to whether any of the grounds mentioned in S. 51 proviso (a)(b) or (c) is made out to order detention of the judgment-debtor in prison? The fads as narrated above show that none of the grounds can apparently be attracted as provided in clauses (a) to (c) of S. 51 except one which is required to be considered that by locking the outer gate of the house the judgment-debtor concealed his property with the object of obstructing or delaying the execution of the decree. In the application in para 2 there is no specific allegation that Rabindra Grewal locked the outer gate of the house and concealed the property in order to delay the execution of the decree or avoid it. What is mentioned is that the judgment-debtor did not permit the execution of the warrant of attachment issued by the Court. Reference has been made to the two affidavits; one filed by Rabindra Grewal and the other by Dhan Raj, Exhibits A.2 and A.3 which are almost in the same terms wherein they had stated that they tender unqualified apology for causing directly or indirectly hindrance in the execution of the warrant of attachment issued against the judgment-debtor. They sought forgiveness from this Court. These affidavits were submitted when suo motu action was taken by this court to punish them. The contents of the affidavits as mentioned above do not prove any concealment of property by Rabindra Grewal or that he had locked the gate knowingly that attachment was to take effect. Exhibit A. 4 is the report of the Bailiff made on the warrant of attachment. A perusal of the same would show that when the Bailiff along with the representative of the decree-holder went to the house, he found that the outer gate was locked. Rabindra Grewal was not available and was reported to have gone out. Whosoever person was present there, did not allow entry in spite of the fact that attachment warrant was shown or read over. The report further shows that since outer gate was locked, orders were sought for breaking open of the lock. He further reported that separate warrant should be issued against the Company and property. From this report no finding can be arrived at that Rabindra Grewal had locked the outer gate of the house or he caused hindrance on the spot in the attachment of the property lying in the house. The decree-holder has thus utterly failed to prove that Rabindra Grewal, the judgment-debtor, in order to delay or defeat the execution of the decree had concealed his property. That being the position, the grounds on which detention of the judgment-debtor could be ordered, stand unproved.
9. Exhibit A.5 is another document which has been brought on the record in evidence. However, the same is not at all helpful in holding that the articles lying in the house which were to be attached belonged to Rabindra Grewal. This letter is by Shri B. S. Grewal claiming ownership of such articles. As to whether factually the articles sought to be attached belonged to the judgment-debtor or his father B. S. Grewal need not to be decided in this application as appropriate time would be when some articles are in fact attached and somebody comes forward with objections claiming the same to be his own in execution proceedings. Since that stage has not so far reached no observation is made at this stage which may affect anybody's rights.
10. The decree was passed against the Company through the Managing Director as well as Rabindra Grewal, Managing Director of the Company aforesaid as is clear from the certified copy of the decree sheet. The decree against Rabindra Grewal is not in his individual capacitv. In the application under disposal it is also so mentioned that Rabindra Grewal, Managing Director of the Company aforesaid be sent to prison. Thus Rabindra Grewal is not the judgment-debtor in his personal capacity that any action to detain him in prison could be taken. Learned counsel for the judgment-debtor has relied upon the decision of this Court in Tikam Chand Jain v. State Government of Haryana (1987) 92 Pun LR 151, wherein it was observed that there was no provision in the Companies Act making the Managing Director personally liable for recovery of dues against limited Company. That was a case of recovery of sales-tax under the Central Sales Tax Act. Ratio of the aforesaid decision can well be applied to the case in hand. It is not the case of the decree-holder that the articles mentioned in the house belonged to the Company. A general allegation was mentioned that such articles belonged to the judgment-debtor. Further comment is not being made at this stage as such a question may arise after any articles are attached as to whether the articles belonged to the judgment-debtor-Company or to the other judgment-debtor individually.
11. Learned counsel for the judgment-debtor also referred to the decision of this Court in S. Sikander Singh v. S. A. Builders Pvt. Ltd. (1989) 96 Pun LR 585, wherein it was held that the Managing Director of the judgment-debtor-Company could not be arrested under S. 55 of the Code of Civil Procedure. Ratio of the decision aforesaid also be applied to the case in hand. Though in that case Managing Director was not shown as the judgment-debtor but in the present case as already stated above Rabindra Grewal was shown as judgment-debtor but as Managing Director. However, the grounds mentioned under S. 51 of the C.P.C. have not been proved to take any action against the judgment-debtor Rabindra Grewal for his detention in prison.
12. In the affidavit submitted by Rabindra Grewal which is on the Execution file it was stated that he was not possessing any property or means to pay the decretal amount. At this stage no evidence to the contrary has been produced by the decree-holder. Even otherwise no evidence has been produced by the decree-holder that Rabindra Grewal was in possession of means to pay the decretal amount. On that account also Rabindra Grewal cannot be detained in prison in the proceedings initiated in the application aforesaid.
13. For the reasons recorded above, the application is dismissed. However, there will be no order as to costs.
14. Application dismissed.