Kasim C.T. v. Manappuram Finance Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-06-09
Court Decision / Holding: The Original Petition (Civil) fails and is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Kasim C.T.

Respondents

Manappuram Finance Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.MATHEWS K.UTHUPPACHAN
• SRI.TERRY V.JAMES
• SRI.SHARAN SHAHIER

Counsels for Respondents

• SRI.B.S.SURESH KUMAR

Case Synopsis & Summary

Kasim C.T., the Judgment Debtor, filed OP(C) No.1216 of 2016 challenging an execution warrant issued in EP No.192/2014 arising from Arb(O.P.) No.56 of 2011 before the II Additional District Court, Kozhikode. After the decree holder (Manappuram Finance Ltd.) examined as PW1, the Execution Court rejected Kasim’s plea of ‘no means’ to pay the award and issued a warrant of arrest. The petitioner did not adduce evidence to rebut the decree holder’s case; the court below found that the Decree Holder had established the debtor’s means (e.g., an Auto Goods vehicle KL-18 Q 2823 and purported earnings of Rs.25,000 per month) and that Kasim had wilfully refused to pay with intent to defeat the decree. Kasim contends that the Decree Holder has not discharged the burden of proof under Order XXI Rule 40 CPC to justify the arrest. The court noted that while the Decree Holder must prove the circumstances under Section 51 CPC, strict proof of every detail is not necessary, and an inference may be drawn from the materials. Citing Kuppuswamy v. P.G.Menon (1992) and Jayadev Singh A.K. v. M.A. Majeeth, the High Court upheld the Execution Court’s inference and dismissed the petition. The Original Petition is therefore failed and dismissed.

Provisions of Law Cited

Order XXI Rule 37 CPCOrder XXI Rule 40 CPCSection 51 CPC

Legal Doctrines & Maxims

Burden of proving the circumstances under Section 51 CPC lies on the Decree Holder, but strict proof of every detail is not necessary; the court may draw inferences from the materials placed before it.
Execution Court may infer means to pay from available assets and resources.
Pleading of 'no means' must be supported by credible evidence, and denial may be inferred from the absence of a rebuttal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Decree Holder has not discharged the burden of proof under Order XXI Rule 40 CPC to justify a warrant of arrest. The petitioner emphasizes that the Decree Holder’s witness (PW1) testified to the debtor’s means (owning an auto goods vehicle and earnings of Rs.25,000 per month) and that the petitioner did not enter the witness box to deny these claims. The petitioner argues that there is no evidence showing wilful default or mala fides sufficient to justify arrest, and thus the lower court’s finding is impermissible.

Contentions of Respondents

The Decree Holder argues that the Judgment Debtor has sufficient means to pay the award, evidenced by the vehicle and the claimed monthly income, and that the debtor has willfully refused to pay to defeat the decree. It contends that the burden shifts to the Judgment Debtor once the Decree Holder establishes means, and that the lower court’s inference based on PW1’s testimony and the absence of contrary evidence is proper.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kuppuswamy v. P.G.Menon	1992 (2) KLT 203	Positive	Cited to support that the Decree Holder bears the burden under S.51 CPC and that strict proof is not required; the court may infer the debtor’s means from the record.
Jayadev Singh A.K. v. M.A. Majeeth	2010 (2) KHC 730	Distinguished	Cited by the petitioner but distinguished as the facts of that case were different; thus not controlling for the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938** **OP(C).No. 1216 of 2016 (O)** **---------------------------** **(AGAINST THE ORDER DTD 29.2.2016 IN EP NO.192/2014 IN Arb (OP) NO.56/2011 OF II ADDL.DISTRICT COURT, KOZHIKODE)** **PETITIONER/JUDGMENT DEBTOR :** **------------------------------** **KASIM C.T. AGED 56 YEARS, S/O. HASSAINAR, CHETTIL THARAMMAL HOUSE, KURUVIDAM, KOTTAKKAL P.O., IRINGAL, KOZHIKODE DISTRICT-673 521.** **BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.SHARAN SHAHIER** ## **RESPONDENT/DECREE HOLDER :** **-----------------------------** **MANAPPURAM FINANCE LTD VALAPPAD P.O., THRISSUR,** **REPRESENTED BY ITS REGIONAL HEAD(LEGAL), THE AUTHORISED PERSON AND THE EMPLOYEE OF MANAPPURAM FINANCE LTD.** **BY ADV. SRI.B.S.SURESH KUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 1216 of 2016 (O)** ## **---------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1**|**COPY OF THE EXECUTION PETITION NO.192/2014 DTD.3.3.2014**| ||**BEFORE THE COURT OF 2ND ADDITIONAL DISTRICT JUDGE,**| ||**KOZHIKODE.**| |**EXT.P2**|**COPY OF THE COUNTER FILED IN THE EXECUTION PETITION**| ||**NO.192/2014.**| |**EXT.P3**|**COPY OF THE PROOF AFFIDAVIT DTD.19.2.2016 FILED BY THE**| ||**RESPONDENT.**| |**EXT.P4**|**CERTIFIED COPY OF THE ORDER DTD.29.2.2016 IN EP**| ||**NO.192/2014.**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| ## **NIL** **/TRUE COPY/ VPS PS TO JUDGE** **K.HARILAL, J. --------------------O.P.(C) No.1216 of 2016 -------------------------Dated this the 9[th] day of June, 2016 J U D G M E N T ------------------** The petitioner is the Judgment Debtor in E.P.No.192 of 2014 in Arbitration Case O.P. No.56 of 2011 on the files of the II Additional District Court, Kozhikode. 2. Pursuant to the notice issued under Order XXI Rule 37 of the Code of Civil Procedure, the petitioner entered appearance before the Execution Court and pleaded that he has no means to pay the award amount. The Decree Holder was examined as PW1. No evidence, either oral or documentary, was produced by the petitioner. After considering the evidence on record adduced by the Decree Holder, the court below rejected O.P.(C) No.1216/2016 2 the contention of 'no means' pleaded by the Judgment Debtor and issued warrant against the petitioner. The legality of the findings, whereby the Execution Court found that the petitioner has means to pay the award amount, is under challenge in this Original Petition (Civil). 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. The sum and substance of the argument advanced by the learned counsel for the petitioner is that the respondent has not discharged the burden of proof, so as to issue warrant against the petitioner as contemplated under OrderXXI Rule 40 of the Code of Civil Procedure. Going by the impugned order it is seen that the Decree Holder/respondent was examined as PW1 and he deposed that the petitioner owns an Auto Goods vehicle bearing Registration No.KL-18 Q 2823 and 3 O.P.(C) No.1216/2016 he plys the same at Vadakara and earns Rs.25,000/- per month. Further, the respondent deposed that even though the Judgment Debtor has sufficient means, he has wilfully refused to pay the award amount with an intention to defeat the decree passed against him. 5. After considering the deposition of PW1, the court below observed that even though, PW1 was crossexamined at length, nothing has been extracted, in his cross-examination, to discredit his testimony as regards the means of the petitioner to pay the award amount. On the other hand, the petitioner did not enter into the witness box so as to deny the means averred by the respondent, in his oral evidence. 6. After considering the evidence of the respondent, the court below arrived at a finding that the respondent has succeeded in establishing the means of the petitioner and thereby the burden was on the 4 O.P.(C) No.1216/2016 petitioner to rebut the same. But the petitioner has not discharged the burden and thereby, the evidence adduced by the respondent stands uncontroverted. Thus the uncontroverted testimony of the Decree Holder/respondent is sufficient to arrive at a finding that the petitioner has sufficient means to pay the award amount. 7. In **Kuppuswamy v. P.G.Menon** (1992 (2) KLT 203), this Court held that the burden of proving the circumstances specified in S.51 of the Code of Civil Procedure lies on the Decree Holder; but strict proof of every detail is not necessary. The Decree Holder should give some indication or details of the property or assets of the Judgment Debtor. It is competent to the Execution Court, on the materials placed before it, to draw an inference as regards the statutory finding required under S.51 of the Code of Civil Procedure. The O.P.(C) No.1216/2016 5 question is, whether there are circumstances justifying the order of arrest. The requirement of S.51 of the Code of Civil Procedure will be satisfied if the Judgment Debtor has means to pay debt either from the liquid resources or assets belonging to him which can reasonably furnished such resources. Going by the decision, it is discernible that an inference to the extent that on the basis of the evidence adduced by the Decree Holder, the Judgment Debtor has sufficient means, alone is sufficient to issue warrant of arrest against the Decree Holder and strict proof as regards the source and income of the Judgment Debtor is not required to issue warrant. 8. The learned counsel for the petitioner relied on the decision in **Jayadev Singh A.K. v. M.A.Majeeth** (2010 (2) KHC 730). Going by the above decision, it could be seen that the facts of the case is entirely different. There, the assertion of the Decree Holder was 6 O.P.(C) No.1216/2016 that the Judgment Debtor is a Director of a company but no document was produced to prove that the Judgment Debtor was the Director of the company. In the instant case, there is no such situation. The refusal to enter into the witness box, is sufficient to arrive at an inference that the plea of 'no means' is made without bona fides. On an analysis of the findings, I find that there is no illegality or impropriety in the impugned order. The Original Petition (Civil) fails and is dismissed. **K.HARILAL,** **(JUDGE)** vps