Andhra Pradesh High Court - Amravati

Kalepu Nagavenkata Durga Prasad vs M/S. Sriram Transport Finance Company ... on 27 December, 2023

 HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                       ****
     CIVIL REVISION PETITION NO.3351 OF 2023
Between:-

1. Kalepu Nagavenkata Durga Prasad, S/o.Satyanarayna, aged
40 years, Business, D.No.5-405, Subbarao peta, Near
R.V.Nagar, Rajamahendravaram.
2. Narasimhachai Ponnamati(Died).


                                          ... Petitioners
                           Versus
M/s.Sriram      Transport     Finance     Company    Limited,
Rajamahendravaram, rep by its Authorized Signatory-cum-GPA
Holder Sri Tupakula Nageswara Rao, S/o.Ramana, Hindu, aged
35 years, Assistant Relationship Manager, Rajamahendravaram.


                                       ... Respondent/DHR


                            ****


DATE OF JUDGMENT PRONOUNCED               :     27.12.2023
                             2
                                                  AVSS,J & JS,J
                                           C.R.P.No.3351 of 2023



SUBMITTED FOR APPROVAL:


       THE HON'BLE SRI JUSTICE A.V.SESHA SAI
                       &
   THE HON'BLE SMT JUSTICE SUMATHI JAGADAM


1. Whether Reporters of Local Newspapers
   may be allowed to see the Judgment?                     Yes/No

2. Whether the copy of Judgment may be
   marked to Law Reporters/Journals?
                                                           Yes/No

3. Whether His Lordship wish to see the
   fair copy of the Judgment?                              Yes/No




                                    __________________________
                                     JUSTICE A V SESHA SAI




                                      ________________________
                                      SUMATHI JAGADAM, J
                            3
                                                AVSS,J & JS,J
                                         C.R.P.No.3351 of 2023



          * THE HON'BLE SRI JUSTICE A.V. SESHA SAI
                           &
   THE HON'BLE SMT JUSTICE SUMATHI JAGADAM

    + CIVIL REVISION PETITION NO.3351 OF 2023
% 27.12.2023

# Between:


1. Kalepu Nagavenkata Durga Prasad, S/o.Satyanarayna, aged
40 years, Business, D.No.5-405, Subbarao peta, Near
R.V.Nagar, Rajamahendravaram.
2. Narasimhachai Ponnamati(Died).



                                          ...Petitioners

                           Versus

M/s.Sriram Transport Finance Company Limited,
Rajamahendravaram, rep by its Authorized Signatory-cum-GPA
Holder Sri Tupakula Nageswara Rao, S/o.Ramana, Hindu, aged
35 years, Assistant Relationship Manager, Rajamahendravaram .


                                     ...Respondent

! Counsel for the Petitioners    : Sri A.Raveendra Babu
^ Counsel for the Respondent     : Sri Maheswarao Rao
                                   Kuncheam, learned
                                   Counsel for respondent

< Gist:
> Head Note:?

Cases     referred:
(1980) AIR (SC) 470
                                   4
                                                           AVSS,J & JS,J
                                                    C.R.P.No.3351 of 2023




         THE HON'BLE SRI JUSTICE A.V. SESHA SAI
                           &
       THE HON'BLE SMT JUSTICE SUMATHI JAGADAM

            CIVIL REVISION PETITION NO.3351 OF 2023

ORDER:

(per A.V. Sesha Sai, J)

Heard Sri A.Raveendra Babu, learned counsel for the

petitioners and Sri Kuncheam Maheswara Rao, learned

counsel for respondent, apartfrom perusing the material on

record.

2. Challenge in the present Civil Revision Petition

filed under Section 115 of the Code of Civil Procedure,

1908 (for short 'the CPC') is to the Order,

dated 20.10.2023, passed by the Court of VIII Additional

District and Sessions Judge, Rajamahendravaram in

E.P.No.814 of 2022 in A.C.No.443 of 2022.

3. The Arbitrator, passed an order against the

1st Petitioner and another on 30.06.2022. For realization

of the amount covered by the said Award, the respondent

herein filed E.P.No.814 of 2022 in A.C.No.443 of 2022

under Order 21 Rule 37 and 38 and section 55 of the CPC,

for arrest and detention of the 1st Petitioner into civil

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prison. The 1st petitioner herein contested the said

Execution Petition by way of filing a counter. The learned

VIII Additional District and Sessions Judge,

Rajahmahendravaram, by way of Order, dated 20.10.2023,

allowed the Execution Petition, directing the 1st Petitioner

to pay the entire Execution Petition amount with costs on

or before 20.11.2023 and further directed issuance of the

Arrest warrant in the event of failure to comply the same.

Hence, the present Civil Revision Petition under Section

115 of the CPC is filed before this Court by the Petitioner.

4. Sri A.Raveendra Babu, learned counsel for the

Petitioners/Judgment debtors submits that the order of the

learned Judge is highly erroneous, contrary to law and

opposed to the very spirit and object of the provisions of

Order 21 Rules 37 and 38 and Section 55 of the CPC. It is

further submitted by the learned counsel that the Decree

holder did not place on record any evidence about the

existence of means of the 1st Petitioner to pay the

Execution Petition amount. It is also submitted by the

learned counsel that the learned Judge grossly erred in

placing burden on the 1st Petitioner/Judgment debtor. In

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support of his contentions and submissions the learned

counsel places reliance on the Judgment of the Hon'ble

Apex court in the case of Jolly George Varghese and

another Vs. The Bank of Cochin1.

5. On contrary, Sri Kuncheam Maheswara Rao,

learned counsel for the Respondent/Decree holder submits

that there is absolutely no error nor their exists any

infirmity in the order passed by the learned Judge and in

the absence of the same, the impugned order is not

amenable for correction under Section 115 of the CPC. It

is also the submission of the learned counsel that in the

affidavit filed in support of the Execution Petition, the

Decree holder categorically stated about the existence of

immovable and movable properties of the 1st petitioner, as

such, the order of the learned Judge cannot be faulted.

6. The information available before this Court, in

clear and vivid terms, discloses that in the Execution

Petition on behalf of Decree holder one Sri T.Nageswara

Rao was examined as PW.1 and the 1st Petitioner herein

examined himself as RW.1. In the Chief affidavit, PW.1

(1980) AIR (SC) 470

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stated that the 1st Judgment debtor is doing transport

business at Rajahmundry, East Godavari District and he is

earning Rs.50,000/- per month. He further stated that the

1st Judgment Debtor has movable and immovable

properties in and around Rajahmundry and he is capable

of paying amount to the Decree holder. In the Chief

affidavit filed by the Judgment debtor/1st Petitioner herein,

he categorically denied the same. Copy of the Cross

examination of RW.1 is placed on record. A reading of the

same shows that nothing can be elicited from the Cross

examination of RW.1 about the existence of the property

but curiously the executing Court placed burden on the

Judgment debtors to disprove the version of the Decree

holder. There is also no evidence on record to demonstrate

the existence of the property in the name of the

1st Petitioner herein. The conclusion arrived at by the

learned Judge is not in accordance with the law laid down

by the Hon'ble Apex Court in the case of Jolly George

Varghese and another Vs. The Bank of Cochin.

AVSS,J & JS,J

7. In this context it may be appropriate to

reproduce Paragraph Nos.16 to 19 of the said Judgment

which read as follows:-

"16. Equally meaningful is the import of Art. 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Art. 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi's case as developed further in Sunil Batra v. Delhi Administration, Sita Ram & Ors. v. State of U.P. and Sunil Batra v. Delhi Administration lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to 'recover' debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art.11 of the Covenant. But this is precisely the interpretation

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we have put on the Proviso to sec. 51 C.P.C. and the lethal blow of Art.21 cannot strike down the provision, as now interpreted.

17. The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art. 11 (of the Covenant) and Art.21(of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonized sec. 51 with the Covenant and the Constitution.

AVSS,J & JS,J

18. The question may squarely arise some day as to whether the Proviso to sec. 51 read with Order. 21, rule 37 is in excess of the Constitutional mandate in Art. 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.

19. In the present case the debtors are in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding has become obsolete in view of later happenings; Sri Krishnamurthi Iyer for the respondent fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re- adjudicate on the present means of the debtors vis a vis the present pressures of their indebtedness, or alternatively whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets. The court will take note of other honest and urgent pressures on their assets, since that is the exercise expected of the court under the proviso to sec.51. An earlier adjudication will bind if relevant circumstances have not materially changed".

AVSS,J & JS,J

8. For the afore said reasons, the Civil Revision

Petition is allowed, setting aside the Order,

dated 20.10.2023, passed by the Court of VIII Additional

District & Sessions Judge in E.P.No.814 of 2022 in

A.C.No.443/2022. However, this order will not preclude the

Decree holder/Respondent from filing Execution Petition

afresh by showing the existence of properties and means of

the 1st Petitioner/ Judgment debtor. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending in this case,

shall stand closed.