S. Somaraj v Self Employers Service Society and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945** **CRP NO. 147 OF 2023 AGAINST THE ORDER/JUDGMENT EP 83/2021 OF ADDITIONAL MUNSIFF** **COURT ,KOTTAYAM** ## **REVISION PETITIONER/JUDGMENT DEBTOR:** S. SOMARAJ AGED 52 YEARS S/O. LATE RAMAKRISHNAN, AYYANKOICKAL HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY P.O., KOTTAYAM., PIN - 686011 BY ADVS. S.RANJIT (K/250/1999) GOKUL DAS V.V.H. ## **RESPONDENTS/DECREE HOLDER & JUDGMENT DBTORS NO.1M2 & 4 TO 7S:** 1 SELF EMPLOYERS SERVICE SOCIETY REG. NO. K-705/97, KOTTATHIL BUILDING, NEW MARKET ROAD, KOTTAYAM DISTRICT. PIN - 686 001, REPRESENTED BY ITS AUTHORIZED MEMBER, MR. M.V. JOSEKUTTY, AGED 60 YEARS, S/O. VARKEY, METTAYIL HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY P.O., KOTTAYAM., PIN – 686 011 2 R.RADHAKRISHNAN NAIR AGED 61 YEARS S/O.RAMAN NAIR, KURIYIDATHU HOUSE, ERAVINALLOOR P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (DELETED.), PIN - 686011 3 SUMA RADHAKRISHNAN AGED 53 YEARS W/O.RADHAKRISHNAN NAIR, KURIYIDATHU HOUSE, ERAVINALLOOR P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (DELETED.), PIN - 686011 4 SHAJI A.G. AGED 50 YEARS S/O.GOPALAN, AYYENKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (DIED.), PIN - 686011 5 P.K. SUMATHY AGED 87 YEARS W/O. RAMAKRISHNAN, AYYENKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (ADDL. D5. DIED.), PIN - 686011 6 SINI SOMARAJ **C.R.P.NOs. 147 & 149 of 2023** ..2.. AGED 42 YEARS W/O. SOMARAJ, AYYANKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (ADDL. D6.), PIN - 686011 7 S. MANISANKER AGED 20 YEARS S/O. SOMARAJ, AYYANKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (ADDL. D7.), PIN - 686011 BY ADVS. P CHANDRASEKHAR (CAVEATOR) CHANDRASEKHAR P JENNY THANKAM(J-541) C.RAMAN(K/1133/1995) ANOOP KRISHNA(k/001468/2018) ANAND SANKAR(K/000657/2018) REGIMOL M.K.(K/213/2018) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.11.2023, ALONG WITH CRP.149/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.P.NOs. 147 & 149 of 2023** ..3.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA,** ## **1945** ## **CRP NO. 149 OF 2023** **AGAINST THE ORDER/JUDGMENT EP 89/2021 OF ADDITIONAL MUNSIFF** **COURT ,KOTTAYAM** ## **REVISION PETITIONER/JUDGMENT DEBTOR NO.2:** S. SOMARAJ AGED 52 YEARS S/O. LATE RAMAKRISHNAN, AYYANKOICKAL HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY P.O., KOTTAYAM., PIN - 686011 BY ADVS. S.RANJIT (K/250/1999) GOKUL DAS V.V.H. ## **RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS NOS. 1 & 3 TO** **5:** 1 SELF EMPLOYERS SERVICE SOCIETY REG. NO. K-705/97, KOTTATHIL BUILDING, NEW MARKET ROAD, KOTTAYAM DISTRICT. PIN - 686 001, REPRESENTED BY ITS AUTHORIZED MEMBER, MR. M.V. JOSEKUTTY, AGED 60 YEARS, S/O. VARKEY, METTAYIL HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY P.O., KOTTAYAM., PIN - 686011 2 P.K. SUMATHY AGED 87 YEARS W/O. RAMAKRISHNAN, AYYENKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM. (DIED.), PIN - 686011 3 SINI P .S. AGED 42 YEARS **C.R.P.NOs. 147 & 149 of 2023** ..4.. D/O. SUKUMARAN, AYYANKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT., PIN - 686011 4 BABY MATHEW AGED 61 YEARS S/O. MATHEW, KARIKKOOTTATHIL HOUSE, MEENADOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (DELETED.), PIN - 686516 5 S. MANISANKER AGED 20 YEARS S/O. SOMARAJ, AYYANKOICKAL HOUSE, PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. (ADDL. D5.), PIN - 686011 BY ADVS. CHANDRASEKHAR P JENNY THANKAM(J-541) C.RAMAN(K/1133/1995) ANOOP KRISHNA(k/001468/2018) ANAND SANKAR(K/000657/2018) REGIMOL M.K.(K/213/2018) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.11.2023, ALONG WITH CRP.147/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.P.NOs. 147 & 149 of 2023** **==> picture [37 x 9] intentionally omitted <==** ## **O R D E R** _**Dated this the 21[st] day of November, 2023**_ **The C.R.P. first above referred arises from an order dated 15.03.2023 passed in E.P.No.83/2021 in O.S.No.720/2020 of the Additional Munsiff's Court, Kottayam. The C.R.P. second above referred stems from an order dated 15.03.2023 in E.P.No.89/2021 in O.S.No.258/2020 pending before the same court, at Kottayam. Both these orders direct issuance of warrant to arrest the petitioner, who is the judgment debtor in the execution petitions afore-referred, in order to detain him in the civil prison, as per the provisions of Section 51(c) of the Code of Civil Procedure.** **2. Heard the learned counsel for the petitioner and respondents.** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [37 x 9] intentionally omitted <==** **3. Learned counsel for the petitioner submitted that, as per Annexure-A1 compromise decree, a sum of Rs.3,93,023/- is due to the respondent society, together with future interest at the rate of 20% per annum. In the E.P. preferred from the decree, notice under Rule 37 was issued, to which Annexure-A3 is the supporting affidavit. Annexure-A3 refers to a business being conducted by the petitioner/JD as also, in the land and building belonging to the petitioner. Another property, which belongs to the mother of the petitioner/JD was also referred to, which according to the respondent/decree holder had devolved upon the petitioner, he being her sole legal heir. The income of the petitioner's son, who was the 3[rd] JD, in his capacity as a professional videographer was also projected. Vide Annexure-A4, the petitioner/JD pleaded no means.** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [37 x 9] intentionally omitted <==** **It was stated that the landed property, along with the building, where the business was conducted, has been sold for a sum of Rs.1.5 crores and the sale consideration was utilized to clear off the liabilities, which certain Service Co-operative Societies, as evidenced from Ext.B4 to B9. As regards the mother's property, the petitioner/JD relied upon Ext.B15 document, to show that the said property has been mortgaged with another society, for a liability of Rs.84 lakhs. In evidence, the decree holder produced and got marked Exts. A1 to A12 and the JD produced Exts.B1 to B16, which includes the documents aforereferred. Thus, according to the learned counsel, the petitioner was not possessed of any asset, liquid or otherwise, so as to satisfy the decree. There was no contumacious refusal on the part of the petitioner/JD in honoring the decree debt. In such circumstances, the order impugned, which** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [37 x 9] intentionally omitted <==** **found sufficient means, suffers from serious illegality and infirmity, warranting interference from this Court, is the submission made by the learned counsel.** **4. This revision petition was seriously opposed by the learned counsel for the respondents. Learned counsel invited the attention of this Court to the written statement filed in the suit wherein, a detailed reference is seen made in paragraph no.2 about the assets of the petitioner (Judgment debtor), to canvas for the position that the petitioner was not in need of borrowing any money from the plaintiff. It was also pointed out that the petitioner/JD was the legal advisor of the respondent-society and loans were disbursed to him, also taking into account the aforesaid status as well. It was further pointed out that the petitioner is an advocate by profession and his** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [37 x 9] intentionally omitted <==** **contention that he has no means can be taken only with a pinch of salt.** **5. Learned counsel for the petitioner relied upon a judgment of the learned Single Judge of this Court in Xavier vs. Canara Bank Ltd [1969 KHC 195] to urge that in the absence of a contumacious refusal to honour the decree, a person cannot be committed to civil prison. Emphasis was made to the observations in paragraph no.3 of the judgment, to point out that means, in the context of Section 51(c), depends on liquid resources or, assets which can reasonably furnish such resources; and neglecting to honour the decree debt should be something less than refusal, but more than mere ommission to satisfy the decree debt.** ## **6. Having heard the learned counsel appearing on** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** **both sides, this Court is not inclined to interfere with the order impugned in these C.R.Ps. This Court notice that the decree was passed on 30.03.2021, a copy of which is produced as Annexure-A1. The sale of the immovable property which belongs to the petitioner/JD was effected on 15.11.2021, a copy of which document is produced as Ext.P1. A perusal of Ext.B6, B7, B8 & B9 would indicate that the loans thereunder were availed by one Sini.P.S., Manisanker.S., Renon B, and Suji P.S. According to the learned counsel for the petitioner, they are close relatives of the petitioner and that the property sold was already mortgaged in respect of the said loans availed by the said persons as well. However, to appreciate the said contention, no evidence is available before this Court, which precludes this Court from ascertaining whether the properties sold for a sale consideration of Rs. 1.5 crores were infact** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** **mortgaged with the Puthuppally Service Cooperative Bank. But for such a mortgage, there can hardly be any justification for the petitioner paying of the debts in the name of the aforesaid persons, in preference to the decree debt, wherein the petitioner, by himself, is liable to pay, in his capacity as the judgment debtor. Evidence is also not seen adduced to show the date on which that the mortgage in question were created. The learned counsel for the petitioner invited the attention of this Court to Ext.B4 to B9 certificates, wherein the loan dates is shown as 27.07.2018. However, the said date cannot be taken as admitted by the respondents in the absence of necessary proof therein. Indisputably, sale of a property which belongs to the petitioner/JD has been effected after the date of decree and even after filing the E.P. and the sale consideration, which was received by virtue of the** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** **said sale, was Rs.1.5 crores, as against the decree debt of Rs.6,00,000/-. In such circumstances, this Court cannot find any illegality or infirmity with respect to the warrants issued against the petitioner vide the impugned orders. This Court also refers to the language employed in the proviso to Section 51(c), which speaks of the status of the judgment debtor, after the date of decree - and not as on the date of enquiry - in ascertaining the means of the judgment debtor. Clause b to the proviso to Section 51 refers to the expression** _**“that the judgment debtor has, or has had since the date of the decree, the means to pay that amounts of the ” decree.... .**_ **Therefore the status immediately after the date of decree is crucial to prove no means, so far as the JD is concerned and it is not the status as on the date of execution petition, or for that matter, the status as on the date of** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** **enquiry to no means that is material. Viewed from that angle also, there is no sufficient material/evidence before the lower court and this Court to arrive at a conclusion that, as on the crucial date the petitioner/JD had enough means.** **7. Faced with the situation, learned counsel for the petitioner seeks a further opportunity by way of a remand. However, the conduct of the petitioner in availing several loans from the respondent society and committing default in the matter of repayment, coupled with the allegation of the learned counsel for the respondent that the petitioner himself was the legal advisor to the said society, dissuades this Court from exercising the discretion in favour of the petitioner. This Court offered an opportunity to the learned counsel for the petitioner to make any concrete and definite plan to pay of the liability, in** **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** **which case this Court could have kept the warrants issued in abeyance. However, the response of the learned counsel for the petitioner is that the petitioner is completely bankrupt, bereft of any assets, whatsoever. In such circumstances, the inevitable course, as reflected from the impugned orders, is a stark reality, which cannot be avoided. These CRPs fail and the same will stand dismissed.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **C.R.P.NOs. 147 & 149 of 2023** ..15.. ## **APPENDIX OF CRP 149/2023** ## PETITIONER ANNEXURES Annexure-A1 TRUE COPY OF THE DECREE IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Annexure-A2 TRUE COPY OF THE EXECUTION PETITION IN E.P. NO. 89/2021 IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Annexure-A3 TRUE COPY OF THE AFFIDAVIT DATED 20.09.2021 SWORN BY THE AUTHORIZED REPRESENTATIVE OF THE 1ST RESPONDENT SOCIETY FILED IN E.P. NO. 89/2021 IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Annexure-A4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AND RESPONDENTS 3 AND 5 IN E.P. NO. 89/2021 IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Annexure-A5 TRUE COPY OF THE DEPOSITION OF PW1 IN E.P. NO. 89/2021 IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Annexure-A6 TRUE COPY OF THE DEPOSITION OF DW1 IN E.P. NO. 89/2021 IN O.S. NO. 258/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. **C.R.P.NOs. 147 & 149 of 2023** ..16.. ## **APPENDIX OF CRP 147/2023** ## PETITIONER ANNEXURES - Annexure-A1 TRUE COPY OF THE DECREE IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - Annexure-A2 TRUE COPY OF THE EXECUTION PETITION IN E.P. NO. 83/2021 IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - Annexure-A3 TRUE COPY OF THE AFFIDAVIT DATED 10.06.2021 SWORN BY THE AUTHORIZED REPRESENTATIVE OF THE 1ST RESPONDENT SOCIETY FILED IN E.P. NO. 83/2021 IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - Annexure-A4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER AND RESPONDENTS 6 AND 7 IN E.P. NO. 83/2021 IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - Annexure-A5 TRUE COPY OF THE DEPOSITION OF PW1 IN E.P. NO. 83/2021 IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - Annexure-A6 TRUE COPY OF THE DEPOSITION OF DW1 IN E.P. NO. 83/2021 IN O.S. NO. 720/2020 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. - RESPONDENT ANNEXURES - Annexure R1(a) True of the decree in OS No. 720 of 2020 of the Court of the Additional Munsiff, Kottayam dated 03.08.2021 - Annexure R1(b) True copy of the written statement dated 27.02.2021 in OS no.720 of 2020 of the petitioner before the Munsiff Court, Kottayam - Annexure R1(c) True copy of the registered sale deed no. 1726AV202l dated 15.11.2021 of Puthupally Sub Registry - Annexure R1(d) True copy of EP No. 83 of 2021 in OS No. 720 of 2020 on the file of the **C.R.P.NOs. 147 & 149 of 2023** **==> picture [45 x 9] intentionally omitted <==** Munsiff court, Kottayam Annexure R1(e) True copy of the proof affidavit filed by the petitioner in EP No. 89 of 2021 in OS No. 258 of 2020 on the file of the Munsiff court, Kottayam