Gireesh v. Kerala Gramin Bank

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939 OP(C).No. 406 of 2018** **E.P.NO.175 OF 2016 IN O.S.NO.110 OF 2014 OF THE MUNSIFF'S COURT, VATAKARA** **------------** ## **PETITIONER(S)** **GIREESH.V, AGED 37 YEARS, S/O.BALAN, PUTHENPURAYIL MEETHAL HOUSE, KURIKKILAD P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN- 673 104.** **BY ADVS. SRI.ABU MATHEW SRI.AJU MATHEW** ## **RESPONDENT(S):** **KERALA GRAMIN BANK, A REGIONAL RURAL BANK HAVING ITS HEAD OFFICE, AT MALAPPURAM AND BRANCH OFFICE AMOUNG OTHER PLACES AT VATAKARA, VATAKARA AMSOM, VATAKARA DESOM, NUT STREET P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN- 673 104, REPRESENTED BY ITS BRANCH MANAGER AND PRINCIPAL OFFICER.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **24.02.2018.** **OP(C).No. 406 of 2018** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE EXECUTION PETITION FILED AS E.P.NO.175 OF 2016 IN O.S.NO.110 OF 2014 ON THE FILE OF THE MUNSIFF'S COURT, VATAKARA. EXHIBIT P2: TRUE COPY OF THE COUNTER FILED IN E.P.NO.175 OF 2016 IN O.S.NO.110 OF 2014 ON THE FILE OF THE MUNSIFF'S COURT, VATAKARA. EXHIBIT P3: TRUE COPY OF THE LETTER DATED NIL ISSUED BY THE PETITIONER TO THE RESPONDENT BANK. EXHIBIT P4: TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE AUTHORIZED SIGNATORY OF THE RESPONDENT BANK. EXHIBIT P5: TRUE COPY OF THE 'B' DIARY PROCEEDINGS IN E.P.NO.175 OF 2016 IN O.S.NO.110 OF 2014 ON THE FILE OF THE MUNSIFF'S COURT VATAKARA.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 24.02.2018** ## ALEXANDER THOMAS, J. ----------------------------O.P(C).No.406 Of 2018 --------------------------------- Dated this the 15th day of February, 2018. ## J U D G M E N T The prayers in this Original Petition (Civil) filed under the enabling provisions in Article 227 of the Constitution of India are as follows: - “a) Call for records and files in E.P.No.175 of 2016 in O.S.No.110 of 2014 on the file of the Munsiff's Court, Vatakara. b) Issue an order setting aside order dated 16-01-2018 passed in E.P.No.175 of 2016 in O.S.No.110 of 2014 on the file of the Munsiff's Court, Vatakara to arrest the petitioner with Police aid. - c) Issue an order or direction to Munsiff's Court, Vatakara to stay all further proceedings in Exhibit P1 execution petition till the disposal of the above Original Petition (Civil).” 2. heard Sri.Abu Mathew, learned counsel for the petitioner/judgment debtor and Sri.Gopikrishnan Nambiar, learned counsel for the respondent/decree holder. 3. The order under challenge is the one at Ext.P-6, whereby the Execution Court has ordered warrant of arrest of the petitioner/judgment debtor in civil prison at the instance of the respondent/decree holder in terms of the provisions contained in Order XXI Rule 37 of the Code of Civil Procedure. ::2:: O.P(C).No.406 Of 2018 4. The legal principles which regulates the aspects for ordering the arrest and detention of judgment debtor in civil prison on the ground that he has means to pay the decretal debt have been delineated by this Court in the judgment in Karunakaran Pillai v. Joseph, reported in 1976 KLT 433, Jayadev Singh A.K. v. A.K.Majeeth , reported in 2010 (2) KHC 730 and Abraham v. Maharashtra Apex Corporation Ltd., reported in 2011 (3) KLT 15 and Jolly George Varghese v. Bank of Cochin , reported in 1980 (2) SCC 360 = AIR 1980 SC 470, George v. Bharathkshemam Company, reported in 2017 (1) KLT 975 etc. 5. No doubt, the provisions contained in the Code of Civil Procedure authorises detention of the judgment debtor in civil prison but only after following rigorous procedure as contemplated in those provisions. It is by now well established that the right to life and right to personal liberty as guaranteed under Article 21 of the Constitution of India cannot be denied to anyone, except, in accordance with the procedure established by law, which is just, fair and reasonable. This position of Constitutional law is crystal clear from a line of decisions starting from Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248. Therefore, if the rigorous procedures and provisions contained in the Code of civil Procedure for arrest and detention of a person are not ::3:: O.P(C).No.406 Of 2018 complied with in substance and spirit, then it would amount to depriving of liberty of a person on the basis of a procedure, which cannot be said to be just, fair and reasonable. 6. Though the main prayer in this Original Petition is for an order from this Court to set aside the impugned order dated 16.1.2018 passed by the Munsiff's Court, Vatakara, in E.P.No.175/2016 in O.S.No.110/2014 to arrest the petitioner/judgment debtor with Police aid, the petitioner has not produced a copy of the said impugned order along with the Original Petition. What has been produced by the petitioner is Ext.P-5 proceedings sheet of the Execution Court on various days between 19.12.2016 to 16.1.2018. The proceedings as against the date 16.1.2018 reads as follows: “Repeat Arrest Warrant with Police Aid. Decree Holder is directed to take steps and pay balance. 31.1.2018”. Later, as per the direction of this Court, the petitioner has produced certified copy of the impugned order dated 16.1.2018 as per Ext.P-6, which reads as follows: ## “ORDER Petition filed under Order 21 Rule 37 of CPC for arrest and detention of Judgment debtor to realise the amount. Repeat arrest warrant with Police aid. Decree Holder is directed to take steps and pay batha.” ::4:: O.P(C).No.406 Of 2018 7. A reading of the impugned order at Ext.P-6 would disclose that the said order has been passed on 16.1.2018 not in pursuance of the provisions contained in Order XXI Rule 40 of the Code of Civil Procedure as part of the adjudication in the matter of plea of means of the judgment debtor, but at the stage prior to that, viz., under Order XXI Rule 37 of the C.P.C. Rule 37 of Order XXI deals with discretionary power to permit judgment debtor to show cause against detention in prison and Rule 38 deals with warrant for arrest to direct judgment debtor to be brought up. Order 21 Rules 37 & 38 read as follows: O.XXI Rule 37: Discretionary power to permit judgment-debtor to show cause against detention in prison .- (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison: Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of jurisdiction of the Court. (2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant or the arrest of the judgment-debtor. Rule 38: Warrant for arrest to direct judgment-debtor to be brought up .- Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.” ::5:: O.P(C).No.406 Of 2018 8. It has been held by this Court in the judgment in Nizar v. Indus Bank Ltd ., reported in 2016 (1) KLT 43, that if a judgment debtor fails to appear in person or through counsel in response to the notice issued under Order XXI Rule 37 C.P.C., there is no provision empowering the court to set the judgment debtor ex parte and no such procedure of setting such judgment debtor ex parte is permitted or contemplated by the C.P.C and that a civil court can set a party ex parte only if it can proceed further in his absence and Rule 37(2) prescribes that when a judgment debtor fails to respond to the notice issued under Rule 37(1) the court shall issue an arrest warrant against him, which is only to secure his presence for the enquiry contemplated in Rule 40(1) and not for non-payment of the decree debt and he is at liberty to surrender before the court before he is arrested and when he is arrested and produced, or surrenders before the court, Rule 40 comes in to play. It will be profitable to refer to para 3 of the judgment of the decision in Nizar v. Indus Bank Ltd , reported in 2016 (1) KLT 43, p.p. 43-44 which reads as follows: > “3. If a judgment debtor fails to appear in person or through counsel in response to the notice issued under Order 21 Rule 37 C.P.C., he cannot be set ex parte. No such procedure is contemplated by C.P.C. The court can set a party ex parte only if it can proceed further in his absence. Rule 37(2) prescribes that when a judgment debtor fails to respond to the notice issued under Rule 37(1) the court shall issue an arrest warrant against him, which is only to secure his presence for the enquiry contemplated in Rule 40(1) and ::6:: O.P(C).No.406 Of 2018 not for non-payment of the decree debt. But he is at liberty to surrender before the court before he is arrested. When he is arrested and produced, or surrenders before the court, Rule 40 comes in to play. As the court has not proceeded to the stage of enquiry regarding his means to pay the debt, he has not lost his right to show cause why he should not be detained in jail for nonpayment of the debt. Even if he does not show cause, he cannot be immediately ordered to be detained in jail unless the decree holder proves that he has the means to pay the debt. No means is pleaded or not, the court has to conduct an enquiry, in which the decree holder should adduce evidence to establish his allegation of the judgment debtor having the means to pay the debt. Sub-rule (2) of Rule 40 gives discretion to the court to release the latter on his furnishing security for his appearance or to detain him in the custody of an officer of the court during the pendency of the enquiry. The detention under this sub-rule is not for non payment of the debt, but only to ensure his presence during the enquiry. The enquiry contemplated in Rule 40(1) is mandatory. A bald statement in the decree holder's pleadings and evidence that the debtor has properties or income to pay the debt is not sufficient. If, on enquiry, the court reaches the conclusion that the debtor is liable to be detained for non payment of the decree debt, he shall be caused to be arrested so that he may be detained. His arrest is necessary only if he is not already under arrest. This is the procedure prescribed in Rule 40 C.P.C.” 9. Sri.Abu Mathew, learned counsel for the petitioner submits on the basis of instructions from his party that the petitioner had met some of the officials in Kerala Gramin Bank and had expressed his willingness to explore the feasibility of mediated settlement as some of his close relatives had informed him that they would financially help him to clear the decretal debt, etc., and that the petitioner was appraised by the officials of the respondent-bank that they would examine the possibility of mediated settlement. In the light of the submission made by the counsel for the petitioner, it is ordered that the Execution Court will ascertain from both parties as to whether they could be referred to ::7:: O.P(C).No.406 Of 2018 mediatory efforts and if so, the parties are so willing they would be referred to the mediation centre and if both sides are interested reasonable time may also be granted for settling such disputes. To facilitate further steps in this regard, it is ordered that the impugned Ext.P-6 order will stand set aside on condition that the petitioner/judgment debtor will personally appear before the Execution Court along with his counsel within 10 days from the date notified for receiving a certified copy of this judgment. However, it is made clear that in case the petitioner/judgment debtor does not personally appear before the Execution Court as directed hereinabove, then the benefit of this direction setting aside the impugned Ext.P-6 order dated 16.1.2018 will lose its efficacy and in such scenario, the operation and enforcement of the impugned Ext.P-6 order will stand revived. If the petitioner/judgment debtor personally appears before the Execution Court within the above said time limit as directed hereinabove, then the Execution Court will ascertain from the decree holder and his counsel as to whether their parties are also willing for mediatory efforts. If both parties are interested reasonable time may also be granted for settling such disputes. If the mediation process is not a viable option, the Execution Court will further proceed with the matter and decide on the ::8:: O.P(C).No.406 Of 2018 aspects as to whether or not the judgment debtor has means to pay off the debt and whether orders under Order XXI Rule 40 of the C.P.C is to be rendered. In such a case, the Execution Court will proceed with the matter in accordance with law and would examine whether the decree holder has been able to satisfy that the judgment debtor is not paying off his debt inspite of having sufficient means in that regard and in the light of the aforecited judgments, more particularly, in cases as in Karunakaran Pillai v. Joseph, reported in 1976 KLT 433, Jayadev Singh A.K. v. A.K.Majeeth , reported in 2010 (2) KHC 730 and Abraham v. Maharashtra Apex Corporation Ltd., reported in 2011 (3) KLT 15 and Jolly George Varghese v. Bank of Cochin , reported in 1980 (2) SCC 360 = AIR 1980 SC 470, George v. Bharathkshemam Company, reported in 2017 (1) KLT 975, etc The petitioner will produce a certified copy of this judgment before the court below for necessary information. With these observations and directions, the aforecaptioned Original Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.