Rajendran R. v. Union Bank of India

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 ``` ``` CRP NO. 211 OF 2021 ``` ``` AGAINST THE ORDER DATED 02-07-2019 IN E.P.NO.3985/2017 IN O.S.NO.4858/2014 OF II ADDITIONAL MUNSIFF COURT, THRISSUR ``` ## **`REVISION PETITIONER/RESPONDENTS/JUDGMENT DEBTOR:`** ``` RAJENDRAN R., AGED 46 YEARS S/O.LATE RAMAKRISHNAN.K.P., KARUKASSERI HOUSE, VADAKKUMMURI, CHEMAPPILLY P.O., THRISSUR DISTRICT-680 570. BY ADV JOSEPH M.P. ``` ## **`RESPONDENT/PETITIOENR/DECREE HOLDER:`** ``` UNION BANK OF INDIA THIROOR BRANCH, REPRESENTED BY MANAGER PRAJITH KUMAR.P.V., AGED 39 YEARS S/O.APPUKUTTAN.P.V., POONNADATHIL HOUSE, THIRUVANNUR NADA P.O., KOZHIKODE-673 029. ``` ``` BY ADV B.SATHEEZ CHANDRAN ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08.08.2023, ALONG WITH CRP.418/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 CRP NO. 418 OF 2019 ``` ``` AGAINST THE ORDER DATED 27.02.2019 IN E.A.NO.140/2018 IN O.S.NO.4865/2014 OF II ADDITIONAL MUNSIFF COURT ,THRISSUR REVISION PETITIONER/JUDGMENT DEBTOR: ``` ``` RAJENDRAN R. AGED 54 YEARS S/O.LATE RAMAKRISHNAN.K.P., KARUKASSERIL HOUSE, VADAKKUMMURI, CHEMAPPILLY.P.O., THRISSUR DISTRICT-680570. BY ADV JOSEPH M.P. ``` ## **`RESPONDENT/DECREE HOLDER:`** ``` UNION BANK OF INDIA THIROOR BRANCH, REP. BY MANAGER PRAJITH KUMAR.P.V., AGED 35 YEARS, S/O.APPUKUTTAN.P.V., POONNADATHIL (H), THIRUVANNUR NADA.P.O., KOZHIKODE-673029. BY ADVS. B.SATHEEZ CHANDRAN M.G.SUSSILA ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08.08.2023, ALONG WITH CRP.211/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 3 ``` ## **CR** ## **ORDER** ``` A decree for recovery of money was put in ``` ``` execution, wherein the judgment-debtor sought protection against issuance of warrant of arrest on ``` ``` the ground of 'no means'. It was rejected by the trial ``` ``` court and consequently, issued warrant of arrest under ``` ``` Rule 38 of Order XXI C.P.C.. It is against the said order,thejudgment-debtorcameupin ``` ``` C.R.P.No.211/2021. ``` ``` 2.C.R.P.No.418 of 2019 is against the order ``` ``` passed on an application submitted under Order XXI Rule 41 C.P.C. by the decree holder for executing the ``` ``` decree by arrest and detention of the judgment-debtor. ``` ``` It was allowed by the trial court by issuing arrest ``` ``` warrant. ``` 3. The principle of 'no means' in fact is the derivative effective of clause (b) attached to the proviso to Section 51 C.P.C.. It is by virtue of the ``` CRP Nos.211/2021 & 418/2019 ``` ``` 4 ``` said proviso, certain exceptions were carved out against the execution of the decree for money by arrest and detention of judgment-debtor in prison. A mandate of issuance of show cause notice to the judgment-debtor why he should not be committed to prison is incorporated under the proviso as a condition precedent so as to execute the decree for money by issuance of warrant of arrest against the judgment-debtor with the grounds under which exemption from arrest can be granted and enumerated in clauses (a) to (c) attached to the proviso to Section 51 C.P.C., wherein clause (b) says that : “(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.” (emphasis supplied) 4. A mere reading of the abovesaid clause would show that the burden lies on the judgment-debtor to get exemption from arrest and detention is so extensive and it would operate from the date of decree onwards. It is discernible by the user of the expression “since the ``` CRP Nos.211/2021 & 418/2019 ``` ``` 5 ``` date of the decree” incorporated, which casts a liability on him to prove and establish 'no means' to pay the amount of decree or any substantial portion thereof right from the date of decree and not from the date on which the decree was put in execution or from the date on which an enquiry was commenced by issuing show cause notice under Rule 37 of Order 21 C.P.C.. The principle embodied under the proviso to Section 51 C.P.C. especially clause (a) and (b) to the proviso is resting on the principle of “utmost good faith”, free from malafides and the person who claims the benefit should come with clean hands free from any non- disclosure or concealment of any property or assets or income whatsoever pertaining to that person. The derivative effect of clause (b) of proviso attached to Section 51 C.P.C. casts a duty on the person who claims it, firstly to establish “utmost good faith” and bonafides that he has no means to pay the decree amount either in whole or in part right from the date of decree. Necessarily, a subsequent development or change of financial status of the judgment-debtor having the ``` CRP Nos.211/2021 & 418/2019 ``` ``` 6 ``` effect of making him incapable of raising funds to meet the amount decreed or a substantial portion thereof after the passing of the decree may not have any relevance so as to determine “means to pay” as incorporated under the said clause. Necessarily, a subsequent change in the financial status of the judgment-debtor after the decree will not relieve him from the liability to answer the decree amount and he cannot escape from the mischief of warrant of arrest, unless it is due to the effect of unexpected developments beyond his control, which may be an exemption to the general principle though it was not contemplated under the abovesaid rule or the proviso attached thereof. The principle that no one shall be incarcerated in civil prison, for the unexpected default or laches beyond his control, is well recognized, resting on sound principles of natural justice besides the protection under Article 21 of the Constitution. It was applied by this court `early in the year 1969 in` **`Xavier v. Canara Bank Ltd (1969 KLT 927).`** The scope of “utmost good faith” and absence of “bad ``` 7 ``` ``` CRP Nos.211/2021 & 418/2019 ``` intention” and “malafides” on the part of the judgmentdebtor would acquire relevance at this juncture and it is the cardinal ingredient that makes difference in the application of both the clauses (a)(ii) and (b) attached to the proviso to Section 51 C.P.C. But the legal position would be different when the development or change in the financial status or assets held by him has been altered prior to the passing of decree to the extent of making him unable to pay the decree amount in whole or any substantial portion thereof, but thereon he would stand bound by the mischief under clause (a) (ii) of the proviso, which mandates that there shall not be any concealment, dishonest transfer of assets, removal of part of his property or any act of bad faith in relation to his property after the initiation of the suit. The mental element of the judgment-debtor regarding the existence of dishonest intention and malafides plays a pivotal role and it is permissible to draw and conclude existence of such malafides or dishonest intention when there is transfer or concealment or removal of assets of the judgment-debtor ``` CRP Nos.211/2021 & 418/2019 ``` ``` 8 ``` after getting knowledge or notice of institution of suit for money. The mandate under clause (b) attached to the proviso should always be read conjointly with clause (a)( _ii_ ) of that proviso, which runs as follows: “(a) XXXXXXXXX _(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,” ``` 5.It is true that in clause (b) to the proviso to Section 51 C.P.C., nothing was incorporated pertaining ``` ``` to the mental element of the judgment-debtor or any act of bad faith. But a conjoint reading of both the provisions, clause (b) and Clause (a)(ii) attached to the proviso especially in relation to what was actually intended by the said proviso would clearly reveal that ``` ``` the person who seeks the protection must come before the court with clean hands free from any bad faith or any act of bad faith in relation to his property. The corollary is that to get exemption from arrest and detention, the judgment-debtor has to satisfy firstly that he has not dishonestly transferred, concealed or ``` ``` 9 ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` removed any part of his property or committed any other act of bad faith in relation to his property after the institution of the suit, in which the decree was passed and secondly that he has no means to pay the amount of the decree or any substantial part thereof since the date of decree, which mandates utmost good faith free from any kind of malafides or bad faith and imposes a comprehensive liability on the judgment-debtor to disclose everything attached to him regarding assets, income, transaction, means of livelihood, the details of dependency, source of income for maintenance of his family members, bank loan, bank accounts, chitty transaction, amount due from other persons, any assets held by other person for and on behalf of him, from the date of decree. He must also satisfy that he has not dishonestly transferred, concealed, removed any part of his property or committed any act of bad faith in relation to his property after the institution of the suit. These are the twin cumulative requirements among the grounds under which an exemption from arrest can be granted under the proviso to Section 51 C.P.C.. ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 10 ``` ``` Necessarily, the judgment-debtor should show and establish both the said cumulative requirements and hence evidence tendered on a plea of 'no means' under clause (b) of proviso to Section 51 C.P.C. will not relieve him from the liability, unless there is evidence to show the mandate under clause (a)(ii) of that proviso. As discussed earlier, the utmost good faith free from malafides is the basic root in which ``` ``` the abovesaid exemptions were drawn and it is discernible from incorporation of words “any other act of bad faith” in the provision. The resultant effect is that the judgment-debtor must give direct evidence or to adduce any other satisfactory evidence to show the mental constituent, the “utmost good faith” and merely a contention of 'no means' may not be sufficient. A mere contention of 'no means' without specifying the details and without disclosing the assets either movable or immovable and details of income and livelihood would be fatal to the claim of exemption under the said proviso. The burden of proof regarding the matters, which would fall under the abovesaid two ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 11 ``` ``` clauses, is on the person who claims the benefit, namely, the judgment-debtor or any other person claiming under him. The upshot of the discussion is that though it is permissible for the decree holder to assert the ability to pay or means to pay the decree amount either in whole or any substantial part of it by direct evidence or through document or by both, that does not mean that the initial burden would always be on the decree holder regarding the assets, movable or immovable, income held by the judgment-debtor so as to satisfy “means to pay” or the contrary. But it is solely on the judgment-debtor to prove and establish that he has no sufficient means to pay the decree amount in whole or any substantial part of it. But being the evidence adduced negative in nature, an assertion from the part of the judgment-debtor that he has no means to pay the decree amount would discharge the initial liability, but for that purpose, the judgment-debtor should mount on the box to give direct evidence and to testify the same by cross-examination. The liability, which can be fastened against the decree ``` ``` CRP Nos.211/2021 & 418/2019 ``` ## `12` ``` holder is to give a precise details of income and assets held by the judgment-debtor. Necessarily, it should reflect in the cross-examination of the judgment-debtor by the decree holder so as to explain to the satisfaction of the court regarding availability ``` ``` or non-availability of any such asset or income and why it was not disclosed. ``` ``` 6.As discussed earlier, this court has applied ``` ``` the principle of unavoidable circumstances pertaining to the judgment debtor beyond his control as a sufficient reason so as to bring him within the sweep of protection granted under the proviso to Section 51 C.P.C. after enumerating the legal position and the statutory principle inXavier's case (supra) in the following lines: ``` _“Under the existing law, imprisonment as a means of enforcement of money decree is available only if there has been some contumacious or unworthy conduct on the part of the judgment debtor the burden of proving which is on the decree holder. It must be established that the judgment debtor has or has had after the decree was passed, the means to pay the decree amount or a substantial part thereof. It must also be shown that he refuses or neglects to pay or has refused or neglected to do so. If at_ ``` CRP Nos.211/2021 & 418/2019 ``` ``` 13 ``` _some time after the decree was passed, the judgment debtor has had the resources to pay a good part of the decree and notwithstanding this, has neglected to pay, he is amenable to incarceration.”_ 7. `The said principle was adopted, slightly` ``` deviating from the statute and mandate therein ``` ``` presumably based on the equity principle coupled with the constitutional mandate under Article 21 of the ``` ``` Constitution. Subsequently, another Bench of this Court ``` ``` inKuppuswamy v. P.G. Menon (1992 (2) KLT 203) had taken the view that the burden of proving circumstances specified in Section 51 C.P.C. lies on the decree holder, however strict proof of every details is not necessary. Decree holder should give some indication or details of properties held by the judgment debtor based on which it is permissible to draw a probable inference ``` ``` by the execution court. The very same view was subsequently taken up and applied by another Bench of this Court in Rajappan v. Shaju (2009 4 KHC 602). ``` ``` 8.In the instant case, a decree for recovery of amount was put in execution, wherein the judgment- debtor raised a contention of 'no means', which was ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 14 ``` ``` rejected by the trial court on an enquiry and found that he has means to pay the decree amount. Resultantly, a warrant of arrest was issued under Order XXI Rule 38 C.P.C. against the judgment-debtor. The judgment-debtor did not mount on the box to give any direct evidence or any other sufficient evidence to prove his bonafides and good faith or inability to pay the decree amount. Lack of direct evidence or any sufficient evidence in that behalf is so fatal to the judgment-debtor. Further, there is non-disclosure of the assets held by him. PW1 is the Branch Manager of the decree holder, who deposed that the judgment-debtor was getting an amount of Rs.20,000/- by way of salary and he was working in a famous financial institution at Thrissur. He is a post-graduate and taking tuition for students from his house after his working hours and is getting Rs.15,000/- per month. He is also the owner of a flat at Telangana, later on named as “Muthoot” and it was leased out and getting Rs.20,000/- per month by way of rent. He is also the owner of Sandro car bearing Reg.NO. KL 8 E 1074. His wife is working in gulf ``` ``` CRP Nos.211/2021 & 418/2019 ``` **==> picture [16 x 9] intentionally omitted <==** ``` country, against which no contra evidence was adduced by mounting on the box by the judgment-debtor. As such, a probable conclusion was arrived at by the execution court. Hence it deserves no interference by way of this revision. ``` ``` Hence, both the Revision Petitions will stand dismissed. ``` ``` Sd/- ``` **P.SOMARAJAN JUDGE** ``` sv ``` ``` CRP Nos.211/2021 & 418/2019 ``` ``` 16 ``` ## **APPENDIX OF CRP 418/2019** PETITIONER'S ANNEXURES ANNEXURE 1 THE CERTIFIED COPY OF THE 27.2.2019 IN E.P.NO.140/2018 IN O.S.NO.4865/2014 ON THE FILE OF THE COURT OF THE II ADDITIONAL MUNSIFF, THRISSUR. ANNEXURE 2 THE TRUE COPY OF THE JUDGMENT IN O.S.NO.4865/2014 ON THE FILE OF THE COURT OF THE III ADDITIONAL MUNSIFF, THRISSUR. /TRUE COPY/ PS TO JUDGE ``` CRP Nos.211/2021 & 418/2019 ``` ``` 17 ``` ## **APPENDIX OF CRP 211/2021** PETITIONER'S ANNEXURES Annexure 1 THE CERTIFIED COPY OF THE ORDER DATED 02.07.2019 IN EP NO.3985/2017 IN OS NO.4858/2014 ON THE FILE OF THE COURT OF THE II ADDITIONAL MUNSIFF, THRISSUR. Annexure 2 THE CERTIFIED COPY OF THE JUDGMENT IN OS NO.4858/2014 ON THE FILED OF THE COURT OF THE III ADDITIONAL MUNSIFF, THRISSUR. Annexure 3 THE CERTIFIED COPY OF THE DECEREE IN OS NO.4858/2014 ON THE FILED OF THE COURT OF THE III ADDITIONAL MUNSIFF, THRISSUR. ## /TRUE COPY/ PS TO JUDGE