(Prev. Known As National Remot) vs Air Survey Co. Of India Limited
2023 Latest Caselaw 971 Cal/2

OD-1

                                 EC/527/2011
                               IA NO. GA/2/2023

                      IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE


                    NATIONAL REMOTE SENSING CENTRE
                    (PREV. KNOWN AS NATIONAL REMOT)
                                 Versus
                     AIR SURVEY CO. OF INDIA LIMITED


  BEFORE:
  The Hon'ble JUSTICE BIVAS PATTANAYAK

Date : April 19, 2023.

Appearance:

Mr. N. L. Singhania, Adv.

Ms. Sanchita Barman Roy, Adv.

Ms. Twinkle Kaur, Adv.

...for the decree-holder

Mr. Subhankar Nag, Adv.

Ms. Amrita Panja Moulick, Adv.

...for Hariprasad Manmohan Adka

The Court: Mr. Subhankar Nag, learned advocate appearing for the

witness, Hariprasad Manmohan Adka, submits that though he has filed the

affidavit of assets as director of the judgment-debtor company, yet thereafter he

has resigned from the directorship of the company on and from June 10, 2022.

He further submits that the said witness is suffering from various ailments due

to which he is unable to come to Court for his examination. Further referring to

Order XXI Rule 41 of the Code of Civil Procedure, 1908, he submits that for a

decree of payment of money, any officer of the judgment-debtor company may be

orally examined. Therefore, since resignation of the witness, his examination

pertaining to his affidavit is not required so far as the execution proceeding is

concerned. He submits for discharge of the witness. In the alternative, he also

submits that the examination of the witness may also be done by commissioning

at the place of residence of the witness in Mumbai at the cost of the decree-

holder.

In reply to the contentions raised as above on behalf of the witness, Mr. N.

L. Singhania, learned advocate for the decree-holder, submits that several dates

were previously fixed by the Court for examination of the witness and after

passage of long time, when his examination has been held in part, the witness in

order to avoid cross-examination has resigned from the directorship of the

company. He submits that the witness be directed to appear before this Court

for conclusion of his cross-examination.

Admittedly witness, Hariprasad Manmohan Adka, filed affidavit of assets

on behalf of the judgment-debtor company and he was cross-examined in part.

The witness was lastly examined on 18th January, 2019. Thereafter, several dates

were fixed for cross-examination of this witness with a direction to remain

present but the witness excepting on a single occasion failed to appear on rest of

the dates. So far as the alternative prayer for examination at the place of

residence of the witness at Mumbai by commissioning is concerned on the

ground of ill-health, it is found that there are no such medical advices of the

doctors that movement of the witness is restricted or he cannot travel. The

medical reports annexed to the application pertain to the year 2019/2020 and

after such period, it is relevant to note that the witness appeared before this

court on 4th January, 2023. Thus, it appears that there is no such predicament

or incapability of the witness to present himself in court for examination. So far

as provision under Order XXI Rule 41 of Civil Procedure Code is concerned, it

provides that where a decree is for the payment of money the decree-holder may

apply to the Court for an order that - (a) the judgment-debtor, or (b) [where the

judgment-debtor is a corporation], any officer thereof, or (c) any other person, be

orally examined as to whether any or what debts are owing to the judgment-

debtor. The provision clearly manifests that 'any other person' apart from

judgment-debtor or any officer where the judgment-debtor is a corporation may

be also examined. Hence, the provision does not create any bar in examination of

the present witness. Therefore, the argument of Mr. Nag, learned advocate for the

witness in this regard cannot be accepted. Since the witness has been cross-

examined in part, hence the examination needs to be concluded.

Accordingly, in the light of the above, the prayer for discharge of the

witness as well as alternative prayer for witness action by commissioning at the

place of residence of witness is rejected.

The application being GA 2 of 2023 stands dismissed.

Let the matter appear on 14th June, 2023.

Witness, Hariprasad Manmohan Adka, is directed to remain present on the

next date for his examination.

(BIVAS PATTANAYAK, J.)

kc.