Sajeev V.S and Sasikala v. Vadakkemuriiyil Finance Company (India) Private Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 ``` ## `OP(C) NO. 975 OF 2023` ``` AGAINST THE ORDER DATED 17.02.2023 IN EP 38/2020 OF MUNSIFF ``` ## `COURT,KATTAPPANA` ## `PETITIONERS/JUDGMENT DEBTORS:` ``` 1SAJEEV V.S AGED 47 YEARS S/O SUGATHAN VATTAMALA HOUSE, CHAKKUPALLOM P.O., ANAKKARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT,, PIN - 685512 2SASIKALA AGED 42 YEARS W/O SAJEEV, VATTAMALA HOUSE, CHAKKUPALLOM P.O., ANAKKARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT., PIN - 685512 BY ADVS. JOBI.A.THAMPI BINNY.A.THOMAS GEM KORASON SHOUKATH HUSAIN ``` ## `RESPONDENT/DECREE HOLDER:` ``` 1VADAKKEMURIYIL FINANCE COMPANY(INDIA) PRIVATE LTD. REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956, WITH ITS REGISTERED OFFLCE AT COIMBATORE IN TAMILNADU AND ADMINISTRATIVE OFFICE AT KOLAMBAGHAM THELLIYOOR VILLAGE AND HAVING BRANCHES IN TAMILNADU AND KERALA INCLUDING BRANCH OFFICE AT ANAKKARA IN ANAKKARA VILLAGE REPRESENTED BY ITS MANAGING DIRECTOR ANU. T. GEORGE, S/O GEORGE VARGHESE, AGED 52, VADAKKEMURIYIL HOUSE,KURIYANNOR KARA,THOTTASSERY VILLAGE, PIN - 689544 BY ADVS. JACOB P. ALEX JOSEPH P.ALEX(K/1-C/2002) MANU SANKAR P.(K/000823/2018) AMAL AMIR ALI(K/000773/2019) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) No.975 of 2023 ``` 2 ## **C.JAYACHANDRAN, J. -----------------------------------O.P.(C.) No.975 of 2023 -----------------------------------Dated this the 09[th] day of February, 2024** ## **JUDGMENT** The petitioners herein are the judgment debtors in E.P. No.38/2020, arising from the suit, O.S. No.44/2016, of the Munsiff’s Court, Kattappana. They are aggrieved by Ext.P7 order, which issued arrest warrant against the 1[st] petitioner herein, under Order 21, Rule 38. The specific ground urged before this Court by the learned Counsel for the petitioners is that the respondent/decree holder had failed to establish that the petitioners/judgment debtors are refusing or neglecting to pay the decree amount, dehors having sufficient means to pay off the same. 2. Learned counsel would invite the attention of this Court to Order 21, Rule 40, as also, Clause (b) to ``` O.P.(C.) No.975 of 2023 ``` 3 the proviso to Section 51(e), to point out that the burden is squarely on the respondent/decree holder to establish the above referred parameter pertaining to sufficient means. It was also urged by the learned counsel that no opportunity was afforded to the petitioners/ judgment debtors, to show cause as to why the first petitioner should not be committed to the civil prison. In substantiation, learned counsel relied upon the judgment of a learned Single Judge of this Court in Abraham T.J. and another v. M/s. Maharashtra Apex Corporation Ltd. and another [2011 (2) KHC 770]. 3. Per contra, it was contended by the learned counsel for the respondent that the respondent, by mounting the box and adducing evidence to the effect that the 1[st] petitioner is a driver by profession, who earns Rs.1,200/- per day, had discharged his burden, thus shifting the same to the petitioners herein, to adduce evidence, as regards their lack of means to pay off the decree debt. Learned counsel would rely on the ``` O.P.(C.) No.975 of 2023 ``` **==> picture [7 x 9] intentionally omitted <==** judgment of a learned Single Judge of this Court in Rajappan v. Shaju [2009 (4) KHC 602], which is referred to subsequently by a learned Single Judge in another judgment in Raman Nair v. P.N. Gopinathan Nair and Ors. [2017:KER:48232]. 4. In Rajappan (supra), a learned Single Judge of this Court held that the burden cast on the decree holder is only to show that the judgment debtor is possessed of means to discharge the decree debt and that, he cannot be expected to prove the means of the judgment debtor with documentary evidence. The learned Single Judge went on to hold that, once the decree holder leads such evidence, the burden shifts to the judgment debtor to show that he is not possessed of the means and thus, incapable of discharging the decree debt. It was further held that the judgment debtor who claims the benefit, must show, to the satisfaction of the Court about his incapacity and lack of means to discharge the decree debt. Although the ``` O.P.(C.) No.975 of 2023 ``` 5 above dictum laid down was quoted in Raman Nair (supra), to find that the judgment debtor therein failed to discharge his burden. Coming to Abraham T.J. (supra), this Court notice that the issue involved therein, was with respect to the permissibility of a presumption being drawn of sufficient means, since the judgment debtor deposited an amount of Rs.40,000/-, as a pre-condition for an order, which he obtained from the High Court. The learned Single Judge held that such presumption is not legally permissible. On facts, it was noticed that the judgment debtor mounted the box as DW1 in that case and he only stated that he knows driving. It was held in Abraham T.J. that such an admission would not give rise to any presumption that the judgment debtor is having sufficient means from his avocation as a driver. 5. Having taken stock of the dictum laid down in the judgment, this Court is of the opinion that the petitioners’ contention in this Original Petition cannot be ``` O.P.(C.) No.975 of 2023 ``` 6 accepted. The decree holder mounted the box and spoke that the judgment debtor is a driver by profession and that he is earning Rs.1,200/- per day. The same is not seen refuted in any manner, as taken stock of by the learned Munsiff in the impugned Ext.P7 order. The judgment debtor had not chosen to mount the box in support of his plea that he has no means to satisfy the decree. Even in the cross examination of PW1/decree holder, there is no specific challenge raised by the judgment debtor on PW1’s assertion that the judgment debtor is a driver by profession, who is earning Rs.1,200/- per day. The emphasis/focus of the cross examination was with respect to the source from which the decree holder obtained that information. This Court is of the opinion that the decree holder had discharged his primary burden and the judgment debtor has failed to adduce any rebuttal evidence. In this regard, this Court is also persuaded to note that the question as to whether a judgment debtor has got ``` O.P.(C.) No.975 of 2023 ``` 7 sufficient means or not, is a fact predominantly within his knowledge, wherefore, evidence in this regard has to be led by the judgment debtor, especially when the primary burden of the decree holder in terms of Order 21, Rule 40, has been discharged. Such an effort is not seen taken. In the circumstances, this Court cannot find any illegality or infirmity with the impugned Ext.P7 order. As reminded by the learned counsel for the respondent, this Court is in exercise of its power under Article 227, which does not permits of a re-appreciation of the evidence tendered before the Court below, to arrive at a conclusion that the judgment debtor has sufficient means. The challenge fails and the Original Petition will stand dismissed. ## **Sd/-** ## **C. JAYACHANDRAN** ## **JUDGE** SKP/09-02 ``` O.P.(C.) No.975 of 2023 ``` 8 ## `APPENDIX OF OP(C) 975/2023` ``` PETITIONERS’ EXHIBITS: EXHIBIT P1TRUE COPY OF THE PLAINT IN O.S.NO.44/2016 ON THE FILE OF THE MUNSIFF COURT, KATTAPPANA EXHIBIT P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.44/2016 ON THE FILE OF THE MUNSIFFS COURT, KATTAPPANA EXHIBIT P3TRUE COPY OF THE JUDGEMENT IN O.S.NO.44/2016 ON THE FILE OF THE MUNSIFFS COURT, KATTAPPANA EXHIBIT P4TRUE COPY OF THE EXECUTION PETITION ( E.P.NO.38/2020 )ON THE FILE OF THE MUNSIFF, COURT, KATTAPPANA EXHIBIT P5TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER AGAINST RULE 37 NOTICE IN E.P. NO38/2020 EXHIBIT P6TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE DECREE HOLDER IN E.P. NO.38/2020 EXHIBITP7CERTIFIED COPY OF THE ORDER DTD.17-02-2023 PASSED IN E.P. NO.38/2020 ON THE FILE OF THE MUNSIFF COURT KATTAPPANA ``` ``` RESPONDENT’S EXHIBITS:NIL ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```