Telangana High Court
Mrs. Veena Agarwal vs Margadarshi Chit Pvt Ltd on 29 November, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
APPEAL SUIT No.6 of 2020
JUDGMENT:
This Appeal is filed by the petitioner aggrieved by the order dated 14.10.2019 passed by the II Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar in E.A.No.100 of 2015 in E.P.No.229 of 2014 in ARC.No.683 of 2011.
2. The petitioner filed a claim petition under Order XXI Rule 59 read with Section 151 of CPC seeking stay of sale of the attached articles contending that they belonged to her. She filed a petition stating that she was the absolute owner and possessor of the residential flat bearing Flat No.206, Prakjyothi High Land, Dairy Farm Cross Road, Upperpally, Ranga Reddy District having acquired the same by way of registered sale deed. She was also an Income Tax Assessee engaged in the trading business as Proprietor of M/s.Aditya Steels for the past several years. On 30.05.2015, some persons came to her house for attaching the movables by showing an attachment warrant against her husband Mr.Sharad Chand Agarwal, issued by the Court. Even after her specific claim that the movables belonged to her and they had nothing to do with Mr.Sharad Chand Agarwal, without paying any heed to her objection, the said persons 2 Dr.GRR, J as_6_2020 forcefully attached the movables owned and possessed by her. The said movables were as follows:
(i) Wooden Sofa Set (4 Pieces) - 2 Sets, (ii) TCL TV - 1 No., (iii) Electrolux Fridge -1 No., (iv) Samsung Washing Machine - 1 No., (v) Almyrah Steel - 4 Nos., (vi) Computer LG - 1 No., (vii) Table Wooden - 1 No., (viii) Chairs Plastic - 1 No., Wheel Chair - 1 No., (ix) Fans - 3 Nos., (x) Tables - 4 Nos.
2.1. She further stated that the above articles were owned and possessed by her having purchased the same from out of her earnings. No other person has got any claim and right over the same. The said articles could not be attached in execution of the decree passed against Mr.Sharad Chand Agarwal and prayed to release the above said articles.
3. The respondent No.1 i.e. M/s.Margadarsi Chits Private Limited represented by its General Manager filed a counter affidavit contending that the petitioner in collusion with Judgment Debtor No.4 (for short JDR.No.4) came up with the present petition only to protract the proceedings. There were no valid grounds to stay the sale of attached movables.
4. The petitioner examined herself as PW.1 and marked Exs.A1 to A5 on her behalf. Ex.A1 is the agreement dated 31.03.2008 for purchase of the household articles. Ex.A2 is the Encumbrance Certificate dated 02.03.2015 showing the names of the petitioner and one Aditya Agarwal as the executants 3 Dr.GRR, J as_6_2020 of the property in Flat No.206, Prakjyothi High Land, Dairy Farm Cross Road, Upperpally, Ranga Reddy District in favour of the Manager, Oriental Bank of Commerce. Ex.A3 is the audit report of M/s.Aditya Steels, dated 30.09.2006. Ex.A4 is the bill for purchase of Samsung Washing Machine dated 12.12.2014 in the name of the petitioner. Ex.A5 are the Income Tax Returns of the claim petitioner for the period from 2003-2004 to 2013-2014 (11 in Number). The respondent No.1 - Decree Holder (for short D.Hr.) examined its General Manager as RW.1. No documents were marked on behalf of the respondent No.1 - D.Hr.
5. The learned II Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar on considering the evidence adduced by both the parties observed that the Execution Petition (for short "EP") was filed for recovery of money from JDR.No.4, who was none other than the husband of the claim petitioner. The residential address of the claim petitioner as well as the JDR.No.4 was one and the same and they were living in the same house as wife and husband and there were no disputes between them. They were joint owners of Flat No.206. The property that was attached were movables in Flat No.206. As such, it was difficult to arrive at a conclusion as to who was the owner of the movables available in the house of the claim petitioner and JDR.No.4. 4
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6. The Executing Court further disbelieved the Agreement of Sale of household articles marked under Ex.A1 observing that when PW.1 was doing flourishing business and was paying Income Tax Returns, her purchase of movables like TV, Cooler, Fridge, Fans, etc., in second hand was unbelievable. Admittedly no receipts were handed over to PW.1 along with Ex.A1, no sale letter was obtained and delivery of possession was not mentioned in Ex.A1 and the name of the vendor Sri Dhirendra Kumar Garg was not mentioned in the claim petition.
7. The Executing Court however considering Ex.A4, the bill evidencing purchase of Samsung Washing Machine, raised the attachment with regard to the said item and dismissed the petition with regard to other movables.
8. Aggrieved by the said dismissal of the petition against other movable properties, the claim petitioner filed this appeal contending that the court below failed to appreciate the fact that no document was produced by the D.Hr., to prove that the movable properties belonged to respondent No.5 - (JDR.No.4) husband of the appellant. The respondent No.5 was not having the power to dispose the movables for his benefit. The respondent No.5 does not have any business income. The appellant and her son managed and run the business in the name of M/s.Aditya Steels and they purchased the movables out of their business income. The observation of the trial court that the respondent No.5 5 Dr.GRR, J as_6_2020 was the joint holder along with the appellant in respect of the property bearing Flat No.206 was not correct. The property stands in the name of the appellant and her son. The respondent No.5 had no right, title and interest in the same and prayed to allow the appeal.
9. Heard the learned counsel for the appellant and the learned counsel for the respondent No.1 - D.Hr.
10. The learned counsel for the appellant submitted that the appellant was the wife of respondent No.5 (JDR.No.4). The respondent No.5 gave guarantee to the loan obtained from respondent No.1. The Executing Court gave attachment warrant for attaching the movables to JDR.No.4 and the bailiff visited the house of JDR.No.4 and attached the movables therein. They are the household articles used on day to day basis. The respondent No.1 - D.Hr. was not proceeding against the Principal or other guarantors. No document was filed by the respondent No.1 - D.Hr. to show that the movables exclusively belonged to JDR.No.4. The claim petitioner was a trader having independent source of income. She filed Income Tax Returns in proof of her income. As per the Encumbrance Certificate, marked under Ex.A2, the house property was in the name of the claim petitioner and her son Mr.Aditya Agarwal, but not in the name of the claim petitioner and the respondent No.5 as observed by the Executing Court and prayed to allow the appeal.
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11. The learned counsel for the respondent No.1 - D.Hr. on the other hand contended that no document was filed by the appellant - claim petitioner to show the purchase of articles attached. Ex.A1 - agreement of sale was a created document. No reliance can be placed upon the same. Purchase of movable articles in second hand could not be believed. No interference is required in dismissing the petition with regard to the attachment of other movables and prayed to dismiss the appeal.
12. As seen from the record, the contention of the claim petitioner was that she was the owner and possessor of the movable properties attached by the Court. Admittedly, the claim petitioner was none other than the wife of JDR.No.4 and they both were residing in the same Flat No.206, Prakjyothi High Land, Dairy Farm Cross Road, Upperpally, Ranga Reddy District from where the above movable properties were attached. The appellant - claim petitioner examined herself as PW.1 and got filed the documents marked under Exs.A1 to A5. Ex.A1 is the agreement of sale for purchase of household articles dated 31.03.2008. The Executing Court disbelieved the said document on the ground that Sri Dhirendra Kumar Garg, the vendor was not examined and that the claim petitioner could not have purchased the second hand articles when she had a flourishing business. She filed Ex.A2, the Encumbrance Certificate to prove that Flat No.206 was in the name of the claim petitioner and her son Mr.Aditya Agarwal and it was mortgaged in favour of the Manager, Oriental Bank of 7 Dr.GRR, J as_6_2020 Commerce and that the JDR.No.4 had nothing to do with it. She also filed Ex.A5, Income Tax Returns which would show that the claim petitioner was a trader and was having source of income to purchase the movable properties present in her house. The respondent No.1 - D.Hr. failed to file any documentary evidence to show that the movables belonged to respondent No.5 (JDR.No.4). When the respondent No.1 - D.Hr. failed to file any documentary evidence to show that the movable properties belonged to respondent No.5 - JDR.No.4, the executing court believing the said articles as that of JDR.No.4 and ordering attachment, as both the husband and wife are living together, is considered as improper. Disbelieving the evidence adduced by the claim petitioner and supporting the order of attachment where there is no evidence is not in accordance with the principles of law. It is the duty of the executing court before issuing attachment warrant to confirm that the property sought for attachment belonged to judgment debtor and he has disposing power over the same which he may exercise for his own benefit. In the absence of any proof that the articles belonged to JDR.No.4, the attachment order will not sustain. Hence, it is considered fit to raise the attachment.
13. In the result, the Appeal Suit is allowed raising the attachment in respect of the movable properties from the house of the claim petitioner. No order as to costs.
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Dr.GRR, J as_6_2020 As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 29th November, 2023 Nsk.