P.V.Ramu, P. Lakshmanan, M.C. Sebastian, P.M. Raghavan v. M/s Maharashtra Apex Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 18TH DAY OF SEPTEMBER 2014/27TH BHADRA, 1936** **O.P.(C).No. 3507 of 2013 (O)** **--------------------------AGAINST THE ORDER IN EP 8/2009 of D.C. & SESIONS & MACT, KALPETTA DATED 22-03-2013** **...............................** **PETITIONER(S) :** - **-----------------------** **1. P.V.RAMU, S/O ELUMBAN, PUTHOORVAYAL VEEDU, PUTHOORVAYAL P.O., KALPETTA, WAYANAD DISTRICT** **2. P. LAKSHMANAN, PUTHOORVAYAL VEEDU, PUTHOORVAYAL P.O., KALPETTA WAYANAD DISTRICT** **3. M.C SEBASTIAN, S/O CHERIYAN, MADATHIPARAMBIL HOUSE, PANAMARAM P.O WAYANAD DISTRICT** **4. P.M. RAGHAVAN, S/O MADHAVAN, PANAYI HOUS, E THRIKKAIPPETTA P.O., WAYANAD DISTIRCT** - **BY ADVS.SRI.M.P.ASHOK KUMAR** - **SRI.P.C.GOPINATH SRI.S.NANDAGOPAL** **RESPONDENT(S) :** **--------------------------** - **M/S.MAHARASHTRA APEX CORPORATION LTD., MANIPAL, REPRESENTED BY ITS PRINCIPAL OFFICER AND BRANCH MANAGER, V. PRASAD, S/O.PERACHAN, KOZHIKODE BRANCH, VASHAKUNIYIL HOUSE, THALAKKULATHUR, KOZHIKODE - 673 317.** **BY ADV. SRI.S.R.DAYANANDA PRABHU** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Contd...2/-** **AMV** **: 2 :** ## **OP(C).No. 3507 of 2013 (O)** **-------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** ## **EXHIBIT P1 COPY OF THE AWARD IN A.P 150/2001 DATED 20-07-2002** **EXHIBIT P2 COPY OF THE AWARD MADE IN A.P 154/2001 DATED 04-02-2006** **EXHIBIT P3 COPY OF THE ORDER OF THE LEARNED DISTRICT JUDGE, KALPETTA IN E.P 8/2009 DATED 22-03-2013** **RESPONDENT(S)' EXHIBITS :** **---------------------------------------** **EXT.R1(A) COPY OF WRIT PETITION O.P.(C) NO.1299/2010 DATED 21.12.2010 HON'BLE HIGH COURT OF KERALA.** **EXT.R1(B) COPY OF JUDGMENT DATED 31.01.2011 OF O.P.(C) NO.1299/2010 HON'BLE HIGH COURT OF KERALA.** **EXT.R1(C) COPY OF AGREEMENT DATED 31.07.1988 EXECUTED BY PETITIONERS IN FAVOUR OF RESPONDENT.** **EXT.R1(D) COPY OF APPLICATION FOR ADVANCE DATED 16.07.2008 SUBMITTED BY PETITIONER TO THE RESPONDENT.** **EXT.R1(E) COPY OF RECEIPT OF RS.2.55 LAKHS DATED 31.07.1998 EXECUTED BY 1ST PETITIONER TO THE RESPONDENT. EXT.R1(F) COPY OF ON DEMAND PROMISSORY NOTE FOR RS.2,55,000/TOGETHER WITH TAKE DELIVERY LETTER DATED 31.07.1998 EXECUTED BY PETITIONERS TO THE RESPONDENT. EXT.R1(G) COPY OF LETTER OF HANDING OVER ALL TITLE DEEDS DATED 31.07.1998 EXECUTED BY 2ND PETITIONER TO THE RESPONDENT.** **EXT.R1(H) COPY OF THE AFFIDAVIT DATED 25.07.2009 ISSUED BY SRI.PRASAD MANAGER OF THE RESPONDENT COMPANY SUBMITTED IN E.P.NO.8/2009 OF DISTRICT COURT, KALPETTA. EXT.R1(I) COPY OF PROOF AFFIDAVIT DATED 14.02.2013 OF V.PRASAD ON BEHALF OF THE RESPONDENT FILED IN E.P.NO.8/2009 OF DISTRICT COURT, KALPATTA.** **EXT.R1(J) COPY OF GENERAL POWER OF ATTORNEY DATED 13.09.2004 EXECUTED BY RESPONDENT IN FAVOUR OF SRI.V.PRASAD.** **Contd...3/-** **AMV** **: 3 : OP(C).No. 3507 of 2013 (O) -------------------------------------** **EXT.R1(K) COPY OF MEMO DATED 22.11.2012 IN E.P.NO.8/2009 OF DISTRICT COURT KALPETTA. EXT.R1(L) COPY OF CERTIFICATE DATED 07.11.2013 ISSUED BY RESPONDENT. EXT.R1(M) COPY OF RELEVANT PORTION OF 69 ANNUAL REPORT FOR 2012-2013 DATED 30.05.2013 OF THE RESPONDENT COMPANY. EXT.R1(N) COPY OF CERTIFICATE DATED 01.11.2013 SUBMITTED BY BLOCK DEVELOPMENT OFFICER PANAMARAM BEFORE THE DISTRICT COURT, KALPATTA.** ## **/TRUE COPY/** **P.A.TO JUDGE** **AMV** ## P. BHAVADASAN, J. .................................... ## O.P.(C) No. 3507 of 2013 ............................................... ## Dated this the 18th day of September, 2014 ## JUDGMENT In this original petition relief sought for is as follows : - i. Call for the records leading to Ext.P3 order in EP 8/2009 of District Court Kalpetta; - ii. Issue an order or appropriate orders setting aside Ext.P3 order; - iii. Direct the crime branch to conduct an investigation with regard to the loan transaction leading to Ext.P1 award in A.P.150/2001 - iv. To grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs. - 2.Ext.P3 is an order in an execution petition filed by the decree holder seeking for realization of the award amount appended to the execution petition by arrest and detention of the judgment debtor in civil prison. - 3.Most of the facts are not in dispute. It appears that the 4th petitioner herein availed a hire purchase loan for purchasing a bus. The other petitioners stood as guarantors to the loan transaction. According to the O.P.(C) No. 3507 of 2013 2 petitioners, they have re-paid a sum of `4,00,000/towards the loan amount. In spite of that, arbitration proceedings were initiated by the decree holder against the petitioners and an award was passed, which is produced as Ext.P1. 4.Ext.P1 award was put in execution by the decree holder. Notice on execution petition proceedings were received by the petitioners. They entered appearance. From the records, it is seen that, an arrest warrant was issued initially without conducting an enquiry as contemplated under Order XXI Rule 40 CPC. The same was challenged by the petitioners before this Court by way of O.P.(C) No.1299 of 2010. That original petition was disposed of by judgment dated 31.01.2011 directing the court below to afford an opportunity to the petitioners to establish their contentions after conducting an enquiry as contemplated under Order XXI Rule 40 CPC. - 5.After the said order of this Court, the execution court O.P.(C) No. 3507 of 2013 3 took up the matter again and an enquiry, as directed by this Court, was conducted. In the enquiry so conducted, it is seen that, the decree holder alone adduced evidence by examining P.W.s 1 and 2 and Exts.A1 to A8 marked. The judgment debtors thought it unnecessary to adduce any evidence. On appreciation of the materials before it, the execution court came to the conclusion that, all the judgment debtors had means to pay the decree debt and they were willfully abstaining from satisfying the decree. Therefore, they were directed to be arrested and detained in civil prison. The said order is assailed in this original petition. 6.The learned counsel appearing for the petitioners contended that, the number shown in Ext.P1 award is A.P.150 of 2001, while in Ext.P3 award it is shown as A.P.No.154 of 2001. It is contended that, the petitioners were not parties in A.P.No.154 of 2001 and therefore proceedings against them cannot be initiated for execution of award in A.P.No.154 of 2001. It is then O.P.(C) No. 3507 of 2013 4 contended that, two cheques issued by one of the petitioners were presented and the same was dishonoured and for that reason proceedings under Section 138 of the Negotiable Instruments Act was initiated, which ended on a dismissal of the complaint. That aspect was not noticed. It is contended that, the finding of the court below that the petitioners have means to pay the decree debt is unfounded and it is not supported by evidence. 7.The learned counsel appearing for the respondent, on the other hand, contended that, this Court, on an earlier occasion, directed the execution court to conduct enquiry as contemplated under Order XXI Rule 40 and 41 CPC and consider the objection raised by the judgment debtors regarding the execution of the decree. When the matter reached the execution court, only the decree holder chose to adduce evidence in support of the execution of the decree and there was no contra evidence from the side of the judgment debtors. O.P.(C) No. 3507 of 2013 5 The decree holder was able to produce documents to show that all the judgment debtors have means to pay the decree debt and they were wilfully abstaining from satisfying the decree. None of the contentions raised by the counsel for the appellant is sustainable. The learned counsel pointed out that the mention of A.P.No.154 of 2001 in Ext.P3 is only a clerical error as could be easily seen from the records and also from the earlier judgment of this Court in O.P.No.1299 of 2010. The contention is that the petitioners belonged to Schedule Tribe and therefore their properties cannot be attached. All these aspects have been considered by the court below and there are no ground to interfere with Ext.P3 order. 8.Having heard the learned counsel on both sides and after having perused the records, the contentions raised by the learned counsel for the respondent seems to be fully justified. First of the contentions namely regarding the number of the arbitration proceedings is clearly a O.P.(C) No. 3507 of 2013 6 clerical mistake committed by the execution court. True, Ext.P1 award shows that the arbitration proceedings is numbered as A.P.50 of 2001. It is also true that in Ext.P3 order, which is under challenge, the arbitration proceedings number is shown as A.P.154 of 2001. But one should at once notice that the parties in both the proceedings are one and the same. Further, it needs to be noticed that, the petitioners had no misapprehension regarding that aspect for the simple reason that they earlier approached this Court by way of O.P.No.1299 of 2010 in which they have shown the arbitration proceedings number as A.P.150 of 2010. Therefore, they knew that Ext.P1 award was being put in execution for which they were being proceeded against. Therefore, the attempt to show that the execution petition is with regard to another award is only to be deprecated. 9.As regards the contention based on the dismissal of the complaint under Section 138, there is no pleadings in 7 O.P.(C) No. 3507 of 2013 the petition at all. The learned counsel for the respondent is therefore fully justified in stating that the said contention cannot be taken note of and it is only to be ignored. 10.Considerable reliance was placed on Section 4 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. Relying on Section 4, it is contended that the persons who held land covered by the said Act cannot ailenate the land without prior sanction and therefore, mere holding of land will not lead to the conclusion that they have means to pay the decree debt. It is also contended as far as the third petitioner is concerned, that he is found to have been receiving honorarium as the member of the Panchayath and that honorarium so received cannot be treated as a means of income enabling him to pay off the decree debt. 11.On going through the records, it is seen that even O.P.(C) No. 3507 of 2013 **==> picture [7 x 8] intentionally omitted <==** though the petitioners were given opportunity to substantiate their contentions, there were no attempt from their side to establish that they have no means. Of course, once an objection to the execution petition is taken, and it is contended that the judgment debtor has no means to pay the amount, the initial burden to show that the judgment debtor has the means to pay the decree debt is on the decree holder. - 12.The decree holder in the case on hand has adduced evidence in that regard. The court below has found that Exts.A1 to A4 clearly show that the first petitioner has property standing in his name, the income from which is sufficient to pay the decree debt. As far as the second petitioner is concerned, the court below found that Exts.A5 to A8 reveal his title, ownership and possession over certain extent of land. - 13.As far as the third petitioner is concerned, the court below was of the view that going by Ext.X1, over a O.P.(C) No. 3507 of 2013 9 period of one year, he has received a sum of `76,117/towards fee, honorarium and travel expenses from the Panchayath and that would show that he has income to pay the decree debt. - 14.As far as the 4[th] petitioner is concerned, the court below was of the view that going by the documents marked in EP 19 of 2009, it is clear that he possesses landed property yielding income. 15.As earlier noticed, the initial burden to prove means is on the decree holder. Decree holder has, in the case on hand, adduced sufficient evidence to show that petitioners 1, 2 and 4 are possessed of landed property. Even assuming that there is a restriction on transfer as per the provisions of the Act earlier mentioned, it does not mean that the income derived from the properties cannot be utilised for the purpose of discharging the debt due to the decree holder. It also needs to be noticed that there is no absolute restriction on transfer O.P.(C) No. 3507 of 2013 10 of the land so possessed and occupied by the petitioner. The restriction is only that, transfer can be effected only with the permission or consent of the competent authority. 16.In the decision reported in Kallancode Service Cooperative Bank v. Philip Joseph [2014 (3) KLT 66], this Court had occasion to consider the nature of interest that is available for sale in execution of a decree and this Court held as follows : - “Civil P.C.1908, S.51 Proviso cl.(b) -- If the judgment debtor has saleable, movable or immovable property, from which sufficient amount can be raised to satisfy the decree debt by sale of the same save as mentioned under the proviso to S.60 of the C.P.C., it can be held that he has means to pay off the debt.” - 17.As far as petitioners 1, 2 and 4 are concerned, the decree holder has adduced sufficient evidence to show their possession of landed properties and there is no contra evidence to show that they are not getting any O.P.(C) No. 3507 of 2013 11 income from the properties or that they have no means. In other words, even after the decree holder adduced prima facie evidence to show that petitioners 1, 2 and 4 are possessed of assets, which could generate income to pay the decree debt, there was no attempt from the side of those petitioners to show otherwise. In the absence of any evidence in that regard, the court below was fully justified in coming to the conclusion that those petitioners had means to pay the decree debt. As far as the case of the third petitioner is concerned, the honorarium, which he receives is a sum of `2,800/- per month. It is pointed out by the learned counsel for the respondent that it is not excluded from attachment and that can be appropriated for discharge the debt. 18.There seems to be considerable force in the above submission. Section 60 of the Code of Civil Procedure makes mention of those factors, which are not liable for attachment and honorarium does not fall among anyone O.P.(C) No. 3507 of 2013 12 of them. There is no reason to take a different view than the view taken by the execution court. - 19.The learned counsel for the petitioners pointed out that, the interest awarded is exorbitant i.e., @28% which is unknown in law. - 20.May be so. But there is an award granting interest at that rate. If the petitioners are aggrieved by the grant of interest at that rate, the proper remedy available to them is to challenge the award and it is well settled that the execution court cannot go behind the decree. That contention too has to fail. 21.It is significant to notice that, most of the contentions now taken regarding the objection for the execution of the decree were not taken on the earlier occasion when the petitioners approached this Court. Probably, they could say that at that point of time, it was not relevant because no enquiry had been conducted and these O.P.(C) No. 3507 of 2013 **==> picture [14 x 8] intentionally omitted <==** matters did not arise for consideration. But the fact remains that there was an earlier O.P. with regard to the same issue. Whatever that be, on going through the records and materials now available before this Court, there seems to be no reason to interfere with Ext.P3 order passed by the execution court. This original petition is without merits and it is accordingly dismissed. Sd/- (P. BHAVADASAN, JUDGE) AMV/09/10/