Delhi High Court
Raman Kumar Gambhir & Ors. vs Sangee Communications Pvt. Ltd. on 9 March, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 24th February, 2010
Date of Order: 9th March, 2010
CM (M) No. 1066/2009 & CM No. 14000/2009
% 09.03.2010
Raman Kumar Gambhir & Ors. ... Petitioners
Through: Mr. P.L.Malik, Advocate
Versus
Sangee Communications Pvt. Ltd. ... Respondent
Through: Mr. Manish Makhija, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By this petition the petitioner has assailed orders dated 26th August,
2009 and 18th September, 2009 passed by the learned ADJ. At the time of
admission, this Court by speaking order dismissed the petition as against order dated
26th August, 2009 however, the petition was admitted only in respect of order passed
on 18th September, 2009 whereby the Executing Court had issued warrants of arrest
against the petitioners.
2. The petitioners suffered a decree under Order 37 CPC for sum of
Rs.17,98,383.30 on 28th July, 2007. On 3rd November, 2007 petitioners preferred an
appeal against this decree before this Court. This Court vide order dated 14th
December, 2007 directed petitioners to deposit amount of Rs.18 lac within eight
weeks. The petitioners did not deposit this amount and rather withdrew the appeal.
After withdrawing the appeal the petitioners preferred an application under Order 37
Rule 4 CPC before the trial Court. This application was dismissed by the Court vide
order dated 26th August, 2009. The Decree Holder had filed an execution of the
decree and sought warrants of attachment of movable and immovable assets of the
petitioners. These warrants of attachment could not be executed as the petitioners
took stand that they had no movable or immovable assets and the company had
closed down. The learned ADJ thereafter passed the impugned order dated 18th
September, 2009 issuing warrants of arrest of the petitioner.
3. The order passed by the Court shows that the Court had asked
petitioners to file affidavits of their assets and the petitioners filed affidavit of Directors
of the Judgment Debtor Company and also affidavits of individual Directors, who
suffered decree being guarantors. In the affidavits it was disclosed that the company
had already closed down. However, nothing was mentioned in respect of the factory
premises A-27, Flatted Factories, Jhandewalan, New Delhi. The learned trial Court
observed that the affidavit filed by the petitioners were vague, the details of bank
accounts and other movable and immovable properties were not furnished
deliberately, only to frustrate the execution petition. The trial Court found that the
Judgments Debtors were not inclined to make payment to the Decree Holder issued
warrants of arrest of JDs No. 2 & 3.
4. Order 21 Rule 37 CPC prescribes the procedure where the Court
intends to execute decree by way of civil imprisonment. This order provides that
where the Decree Holder makes an application for execution of decree by arrest and
detention of JD in civil imprisonment, the Court, before issuing warrants of arrest
shall issue a notice calling upon Judgment Debtor to appear in the Court to show-
cause as to why he should not be committed to civil imprisonment and after
considering the reply given by the Judgment Debtor the Court has to pass an order
whether non-payment of decreetal amount was willful or there was a financial
incapacity on the part of Judgment Debtor which resulted into his non-payment of the
decreetal amount. The Court for considering this can record statement of Judgment
Debtor and can also ask Judgment Debtor to file affidavit declaring his assets
movable and immovable. The Court has to give a finding after considering the entire
material that non-payment of the decreetal amount by JD was a willful act. The Court
can take into account all factors which are necessary to arrive at this conclusion and
where the Court comes to conclusion that the defiance was willful, the Court can
order execution of decree through civil imprisonment. Before ordering for civil
imprisonment and issue of warrants of arrest of the Judgment Debtor, the Court has
to ensure that the diet money/monthly allowance as per Jail Rules for keeping the
Judgment Debtor in jail are deposited by the Decree Holder. It is apparent from the
order that the Court below had not followed this procedure.
5. The petition is therefore allowed. The order of trial Court shall be
considered as a show-cause notice. The petitioners are directed to appear before
the Executing Court on 8th April, 2010. The petitioner shall file, within two weeks
from today, a detailed affidavit about their assets movable and immovable giving
details of the bank accounts, shares held by them in various companies either in their
own name or in the name of their wife or dependent children. They shall also, in the
affidavit, disclose where the children are studying, if they are students, how many
cars they were maintaining how many times they had gone abroad and their visits in
India at different stations in the last two years, so as to give a true picture of their
financial capacity. The trial Court after considering affidavit shall decide about the
willful non-payment or incapacity of the petitioners and then pass an order about civil
imprisonment, if necessary. If the above affidavits are not filed within two weeks, the
order dated 18th September, 2009 of the trial Court shall stand restored.
March 09, 2010 SHIV NARAYAN DHINGRA, J.
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