Delhi High Court
Hindustan Paper Corporation ... vs M/S Western Express (Services) on 12 February, 2016
Author: Vipin Sanghi
$~36.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 12.02.2016
+ EX.P. 252/2006
HINDUSTAN PAPER CORPORATION LIMITED
..... Decree Holder
Through: Mr. Nikhilesh Krishna, Advocate
versus
M/S WESTERN EXPRESS (SERVICES)
..... Judgement Debtor
Through: Mr. Dalpreet Singh, Advocate with
Mr. Krishan Kumar Nareda,
proprietor of the Judgment Debtor in
person.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
Ex.Appln. (OS) No. 1123/2015
1.
This application has been preferred by the decree holder under Order
XXI Rules 30, 41(3) read with Sections 51, 55, 58 and 151 CPC. The
decree holder, by this application, seeks that the judgment debtor -
K.K.Nareda, be sent to civil imprisonment.
2. The background facts are that the decree holder filed a civil suit being
CS(OS) No. 1938/2001 for recovery of Rs. 28,87,490.57/-. The plaintiff
pleaded that the defendant was appointed as their clearing and forwarding
agent vide letter dated 23.12.1997. The claim arose on account of the
defendant not delivering the goods to the plaintiff. The defendant did not
appear to contest the suit despite service of summons and was proceeded ex-
parte vide order dated 15.12.2003. The plaintiff led ex parte evidence of
Mr. Dinkar Prakash Bhardwaj, Senior Accountant of the plaintiff at its Delhi
office. After giving adjustment to the amount of bank guarantee and other
permissible amounts, the amount recoverable from the defendant was stated
to be Rs. 15,79,302.57/-. Besides the said amount, the defendant was also
found liable to pay interest of Rs. 13,08,188/-. Resultantly, the court passed
a decree for Rs. 28,87,490.57/- against the defendant with costs and
pendente lite and future interest @ 15 % per annum till realization.
3. The decree holder instituted the present execution petition in
November, 2006. Despite service, the judgment debtor did not appear and,
consequently, bailable warrants were issued on 30.05.2007. Despite service
of bailable warrants, the judgment debtor did not appear on 25.03.2008 on
the ground that he was held up at Chittorgarh, Rajasthan. Ultimately, the
judgment debtor appeared only on 09.05.2008. He was then directed to file
a list of his movable and immovable assets standing in his name.
4. On 03.10.2008, the judgment debtor made a disclosure of his three
bank accounts and about his owning an Indica Car of 2005 model which was
stated to be hypothecated with HDFC Bank, Rajouri Garden, New Delhi.
The banker was directed not to release the papers of the Car without
intimation to the Court. The judgment debtor informed that he had joined
services of Innovative B2B Logistics Solutions Ltd., as G.M. (Domestic
Business Development) and is drawing a salary of Rs. 48,000/- per month.
He stated that he would deposit in this Court 33% of his salary on the 10 th of
every month. He stated that he would make the deposit without prejudice to
his contentions and right to seek setting aside of ex parte decree. I may
observe that neither the said 33% of the salary was ever deposited by the
judgment debtor, nor did he seek the setting aside of the ex parte decree
against him. He also did not prefer a Regular First Appeal to assail the ex-
parte judgment and decree.
5. The judgment debtor did not appear when the matter was taken up on
27.11.2008 and, consequently, once again bailable warrants were issued for
his production. However, the judgment debtor did not appear on the next
date i.e. on 21.01.2009. His salary was attached by issuing notice to his
employer B2B Logistics Solutions Ltd.. Once again, bailable warrants were
issued for his production.
6. He appeared on the next date, i.e., 28.04.2009. On that date, he gave
his current residential address which was stated to be on monthly rent of Rs.
11,000/-. He stated that the premises was taken on rent since September,
2008 and the rent was being paid in cash. He was asked to produce before
the Court the rent agreement and rent receipts within a week.
7. The judgment debtor did not, once again, appear before the Court on
11.05.2009 and, consequently, bailable warrants were issued for his
production. Warrants of attachment in respect of the Indica Car owned by
the judgment debtor was also issued, returnable on 22.07.2009. On
22.07.2009, the judgment debtor appeared in response to the warrants issued
against him. It was again informed to the Court that the Car was
hypothecated to the Bank and the loan is outstanding. The judgment debtor
stated that some settlement has been worked out with the decree holder. The
same statement was reiterated by the judgment debtor on the next date, i.e.,
on 11.09.2009.
8. On 01.12.2009, once again, the judgment debtor was not present and
bailable warrants were issued for his production. On this date, the Court
also took note of the fact that earlier order requiring the judgment debtor to
file the rent agreement and the rent receipts on record had not been complied
with.
9. Despite service of bailable warrants, the judgment debtor did not
appear on 09.02.2010. Consequently, the Court issued non-bailable
warrants for his production, returnable on 09.03.2010. On 09.03.2010, the
judgment debtor appeared. The Court took note of the fact that the
judgment debtor had not filed his affidavit in respect of his moveable assets,
including, the personal jewellery. He had also not complied with the order
requiring him to deposit 33% of his salary every month. The judgment
debtor was again asked to file an affidavit of his assets and personal
jewellery and also the statement of bank account in which his salary
received from M/s Innovative B2B Logistics Solutions Ltd. was being
deposited. He was asked to file a statement of account for the period
January, 2005 to February, 2010, in relation to his two bank accounts
maintained by Corporation Bank, Pitampura Branch and IDBI Bank.
10. On the next date, i.e., 19.04.2010, the Court observed that the
affidavit filed by the judgment debtor did not make out a disclosure with
regard to his personal jewellery. He informed to the Court that he had
obtained loans from State Bank of India, Parliament Street Branch, Citibank,
Mathura Road, ABN Amro Bank, Barakhamba Road. The judgment debtor
was then called upon to file an affidavit making the following disclosures:
"(i) whether he has any personal jewellery in his possession;
(ii) Whether he owns in his name or in the name of his family
members any movable or immovable property which have been
funded by him;
(iii) the account numbers of State Bank of India, Parliament
Street, New Delhi branch, Citibank, Mathura Road, New Delhi
branch and ABN Amro Bank, Barakhamba Road, New Delhi
branch (collectively referred as, 'banks'). The affidavit shall be
accompanied with statement of the loan accounts for the period
2007 till 30.04.2010 from the aforementioned banks. The
affidavit shall also, in particular, disclose as to whether any
security in the form of movable or immovable property has
been given to the aforementioned banks for obtaining the said
loans.
(iv) his income, if any, for the period assessment year 2008-
09 till the current assessment year. The income tax returns for
the said period shall accompany the affidavit.
(v) the rent paid by him for the premises situate at KP-231,
Maurya Enclave, Pitampura, Delhi. The copy of the lease deed
and rent receipts shall be filed along with the affidavit."
11. On 16.07.2010, the Court after examining the statement of account of
Union Bank of India, Connaught Place, New Delhi, filed by the judgment
debtor observed that, prima facie, the disclosures made by the judgment
debtor with regard to his salary is false. The relevant part of the order dated
16.07.2010 reads as follows:
"A perusal of the statement of account of Union Bank of India,
Connaught Place, New Delhi (UBI) seems to suggest that the
JD has been in receipt of salary of more than Rs. 48,000/- p.m.
This is clear on perusal of credit entries in the bank statement
of the JD maintained with UBI. The credit entry for
07.10.2008, seems to indicate that JD has received on account
of salary a sum of Rs. 76,329/-. This entry is followed by
several such like entries including those made in November,
2008, December, 2008 and February 2009. These entries do
suggest that the JD had been getting a salary of more than Rs.
48,000/-. As a matter of fact, a salary slip of February, 2009
filed by JD shows that towards salary the JD has received, from
the aforementioned employer, a sum of Rs. 94,776/-. Apart
from the fact that the amount received towards salary was
falsely stated before the Court, there has been a violation of the
undertaking given to the court that the 33% of the salary will be
deposited in the court."
12. The Court, therefore, issued notice to the judgment debtor as to why
proceedings for contempt ought not to be taken against him. On 13.12.2010,
the Court upon taking note of the affidavit dated 28.08.2010 filed by the
judgment debtor, again observed that there had been a violation of the order
dated 03.10.2008. The court observed that the judgment debtor had not
disclosed that, over and above the salary of Rs. 47,036/-, he had been
receiving substantial perks. The Court also observed that non-compliance of
the order requiring the judgment debtor to deposit 33% of his salary
tantamounted contempt of court. At that stage, the judgment debtor stated
that he be given time till 31.03.2011, 'to deposit the decretal amount'. The
Court did not grant time till 31.03.2011, however, as a last and final
opportunity, eight weeks' time was granted to the judgment debtor to pay
the decretal amount.
13. It appears that the judgment debtor made some proposal for settlement
and the matter was adjourned on a few dates thereafter. On 21.12.2011,
once again, the judgment debtor was not present. He was directed to remain
present in court on the next date. On 07.03.2012, once again, the judgment
debtor was not present and he was once again directed to remain present in
court. Only on 22.08.2012, the judgment debtor appeared with his counsel
and the counsel stated that he shall file his objections within four weeks.
14. On 25.02.2013, once again, the judgment debtor was not present and
the Court after perusing the order-sheets, observed that the judgment debtor,
'playing ducks and drakes' with the Court. Consequently, bailable warrants
were issued for his production. The judgment debtor appeared in response
to the warrants on 08.07.2013. He was, once again, called upon to file an
affidavit disclosing his income, assets and sources of income. Copies of his
bank accounts for the last three years were also required to be placed on
record. He was also required to disclose his present place of employment
and also to disclose how the amount of rent was being paid by him. He was
called upon to disclose whether he is using any credit card.
15. Yet again, the judgment debtor defaulted in appearing on the next date
i.e. 21.08.2013. Consequently, once again, bailable warrants were issued for
his production. One last opportunity was granted to file the affidavit in
terms of the order dated 08.07.2013 subject to payment of costs of Rs.
10,000/- to the decree-holder.
16. On 24.09.2013, the judgment debtor moved E.A.573/2013. In this
application, the judgment debtor claimed that no amount was payable by
him under the decree. He claimed that a fraud has been played upon him by
the plaintiff/decree-holder. He claimed that in the balance-sheet of the
decree holder as on 31.03.2005, an amount of Rs. 41312.43/- was payable to
the judgment debtor by the decree holder, as he was shown as one of the
sundry creditors of the decree-holder. This Court considered the said
application and dismissed the same by observing:
"In effect, what the judgment debtor is seeking to do is to go
behind the decree. This submission ought to have been made at
the stage when the suit was being contested. I am, therefore,
not inclined to even issue notice in the application as I see no
merit in the same. Dismissed."
17. The judgment debtor filed the affidavit in terms of the order dated
08.07.2013. The matter was adjourned to 10.12.2013. On the said date,
once again, the judgment debtor was not present. The Court observed that
despite the execution petition has been hanging fire since 2006, not a penny
has been paid by the judgment debtor to the decree holder under the decree.
Since the judgment debtor had not strictly complied with the order dated
08.07.2013 by making a complete disclosure, and, he was also not present,
non-bailable warrants were issued for his production for 13.01.2014.
18. On 13.01.2014, the judgment debtor appeared and undertook that he
shall appear on every date of hearing. Consequently, the non-bailable
warrants were discharged. He sought two weeks' time to approach the
decree-holder to settle/make payment.
19. On 03.04.2014, the judgment debtor stated that the Indica Car bearing
registration No. DL4CU6328 still belongs to him and is in his custody, and
that the said Car is now free from any loan. He stated that he had offered
the said Car to the decree-holder, 'in satisfaction of the decree' but the
decree holder has not taken the same. On this, statement of counsel for the
decree holder was recorded that the said car being of value less than Rs. One
lakh, the decree holder is not interested. At this stage itself, I may observe
that the judgment debtor has sought to make capital out of this statement of
the decree holder to subsequently dispose of the car on his own, without the
permission of the Court. However, that statement of the counsel for the
decree holder has to be read in the context of the fact that the judgment
debtor offered the said Car to the decree holder "in satisfaction of the
decree", which was for a much larger amount. Obviously, the decree holder
could not be expected to accept the said offer. That statement of the counsel
for the decree holder certainly could not be taken to mean that the judgment
debtor could unilaterally and quietly dispose of the vehicle on his own.
20. On 21.05.2014, this Court attached the following accounts and
properties of the judgment debtor:
"(a) A/c No. 000695 in Corporation Bank, Vardhaman
Charve Plaza, Plot No. 22, K.P.Block, Community Centre,
Pitampura, Delhi.
(b) A/c NO. 0000751404000108744 in IDBI Bank,
Mahipalpur, New Delhi.
(c) A/c NO. 307802010866294 in Union Bank of India,
14/15-F, Connaught Place, New Delhi.
(d) A/c No. 542902010008670 in Union Bank of India FP
Block, Maurya Enclave, Pitampura, Delhi - 110 088.
(e) One Indica Car bearing REgn. No. DL-4CU-6328.
(f) All the moveable assets, i.e. Refrigerator, Sofa Sets,
Television, Music System, Furnitures, All electronic, Dining
Sets & Utensils, etc. lying at KP-231, Maurya Enclave,
Pitampura, Delhi - 110 088."
21. The Bailiff was directed to sell the moveable assets, including, the
Car in question after attaching the same and deposit the sale proceeds with
the Court. The judgment debtor was also directed to disclose his further
assets, including, LIC policies and details of his current employment by
filing an affidavit. However, the Process Server reported that the warrants
of attachment could not be executed as the premises was found locked on
04.06.2015, the date when he had gone to execute the warrants. This aspect
was noticed in the order dated 03.08.2015.
22. On 23.04.2015, the judgment debtor stated that there is a possibility of
settlement with the decree holder which was denied by the decree holder.
Warrants of attachment were issued in respect of moveable assets and Car.
The judgment debtor stated that on the next date, he shall handover the keys
of the Indica Car bearing registration No. DL4CU6382. He stated that the
aforesaid Car is parked at his residence. Consequently, the Court directed
him to handover the Car and its keys directly to the decree holder within one
week against receipt. The judgment debtor also stated that he has no
objection to his moveable assets being attached. The decree holder,
however, stated that the judgment debtor was evading attachment.
Consequently, fresh warrants of attachment/sale were issued in respect of
moveable assets of the judgment debtor. The Bailiff was permitted to take
police aid for breaking open of locks in case the premises if found locked or
resistance is offered. The Court also directed the judgment debtor to file an
affidavit making detailed disclosures of his assets, income, liabilities,
expenditure and general information regarding standard of living and life
style etc.
23. It appears that the Bailiff was able to recover two cheques of
Rs. 40,000/- and Rs. 60,000/- issued by the son of the judgment debtor. The
son of the judgment debtor then moved E.A. No. 974/2015 seeking a
restraint against the presentation of the said cheques which were claimed to
have been obtained under threat of humiliation and harassment. The Court
after considering the submissions rejected the application of the judgment
debtor's son. Consequently, the decree holder was able to receive a fraction
of the decretal amount of Rs. One lakh only, after pursuing the present
execution petition for about 9 years.
24. On 03.11.2015, the judgment debtor again stated that he will hand-
over the keys of the Indica Car aforesaid to the decree holder. The Court
directed him to deliver the possession of the Car with keys within one week
against receipt. Pertinently, on the same day, the decree holder disclosed
that the said Car had, in fact, been sold by the judgment debtor and he had
pocketed the sale proceeds. This was done on the same day on which
warrants of attachment had been issued in respect of the moveable assets,
returnable on 03.11.2015. Only then, the judgment debtor admitted that he
had sold the Car in question on 10.08.2015 after the passing of the order
dated 03.08.2015. He had no explanation to offer for reneging from his
statement made on 03.08.2015. The decree holder was then granted liberty
to file an application to seek civil imprisonment of the judgment debtor. In
consequence of the order dated 03.11.2015, the decree holder has moved the
present application.
25. The judgment debtor was directed to file an affidavit enclosing
therewith his income tax, wealth tax, property tax and VAT returns with
effect from 10.09.2001 for which directions have been issued earlier as well
on 03.08.2015.
26. On issuance of notice, the judgment debtor has filed his reply to this
application.
27. The submission of learned counsel for the judgment debtor is that the
decree in question has been obtained by the decree holder by perpetuating a
fraud. He submits that the decree holder did not disclose that as on
31.03.2005, the decree holder owed an amount of Rs. 41,312.43 to the
judgment debtor, rather than the judgment debtor being liable towards the
decree holder for any amount. In this regard, the judgment debtor has
placed reliance on two pages purporting to contain some accounts of the
decree holder. I may observe that these two pages had been filed as
Annexure B along with EA 573/2013, which has already been dismissed. In
relation to the said documents, averments made in para 8 of the said
application reads as follows:
"Even, as per the schedule of claims recoverable, prepared as
on 31 March 2005 and the balance sheet of the decree holder
company, dated 31 March 2005, the judgment debtor has been
shown as a creditor, who is shown to have credit balance of Rs.
41312.43."
28. The submission of learned counsel for the judgment debtor is that the
decree holder was well aware of the fact that Rs. 41312.43 was recoverable
by the judgment debtor/defendant at the time of filing of the suit. Yet the
decree holder/plaintiff filed the suit for recovery on a false premise. He
submits that the decree holder-plaintiff was obliged to make a complete
disclosure to the Court, even if the defendant/judgment debtor did not
contest the suit and allowed the proceedings to go ex parte against him. He
submits that fraud unravels all, and the decree based on a fraud can be set
aside even in the present execution proceedings. In support of his
submission, learned counsel for the judgment debtor has placed reliance on
the following decision;
(a) S.P.Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1
(b) United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. (2000)
3 SCC 581
(c) Ram Chandra Singh Vs. Savitri Devi and Ors. (2003) 8 SCC 319;
and
(d) A.V.Papayya Sastry & Ors. Vs. Government of A.P. & Ors. (2007) 4
SCC 221
29. Learned counsel for the decree holder has submitted that the
submission of learned counsel for the judgment debtor that "fraud" had been
played upon the Court as well as the judgment debtor/ defendant by the
plaintiff/ decree holder, is factually not correct. He has referred to the
pleadings made in the plaint. In paragraph 13 of the plaint, the plaintiff had
made the following averments:
"13 That a sum of Rs.48,70,000/- was paid to the defendant
by the plaintiff. At the time of expiry of the agreement of the
defendant after adjusting the abovesaid sum of Rs.48,70,000
and after adjusting amount against the bank gurantee of
Rs.5,57,886/- (principal + interest) and after adjusting the tax
deducted at source and also after adjusting the amount of
Rs.16,88,152.57 as mentioned in para 9 of the present plaint a
sum of Rs.41,312.43 was payable to the defendant by the
plaintiff. After adjusting the abovesaid amount of Rs. 41,312.43
from the amount claimable by the plaintiff from the defendant
as mentioned in paras 8 and 10 of the present plaint a sum of
Rs.15,79,302.57 excluding interest was recoverable from the
defendant by the plaintiff at the time of expiry of the abovesaid
agreement. Summary of accounts of the defendant with the
plaintiff is filed herewith as "Annexure-A". It is stated that
defendant is also liable to pay to the plaintiff interest on the
abovesaid amount @ 28% per annum."
30. He submits that the perusal of the aforesaid paragraph would show
that the plaintiff had granted adjustment in respect of several amounts due to
the defendant, including the amount of Rs.41,312.43/-, which the judgment
debtor claims not to have been disclosed by the plaintiff in its claim. The
principal amount of liability of the defendant/ judgment debtor had been
worked out at Rs.15,79,302.57, after granting adjustments for all the
amounts due to the defendant. In fact, Annexure-A filed along with the
plaint elaborately sets out the amounts due from the plaintiff to the
defendant, and after adjustment of the said amount, the balance amount
recoverable by the plaintiff, of Rs.15,79,302.57 as the principal amount was
worked out. Annexure-A to the plaint reads as follows:
SUMMARY OF A/C OF M/S WEESTERN EXPRESS (S)
A. Total bill passed for Rs. 58,24,872.00
Less - Recovery against shortage shown in CA
bill without any shortage certificate
Rs.14,82,269.27
Rs. 2,05,883.30 16,88,152.57
41,36,719.43
Less - Tax deducted at source against CA bills 1,07,387.00
40,29,332.43
Add - Local cartage bills 1,26,886.00
41,56,218.43
Less - Tax deducted at source against cartage
bills 2,792.00
41,53,426.43
Add - -Amt. of cash deposit with HPC Ltd. by M/s
W.E.(S) 2,00,000.00
- Amt of encashment of Teerm deposit
(Principal + Int.) DD NO.2288/99/6.10.99
(403390) 5,57,886.00
49,11,312.43
Less Paid by HPC against CA bills also
confirmed by M/s W.E.(S) 48,70,000.00
Payable Amt. 41,312.43
M/S Western Express (Service) summarized outstanding position
Rs.
1. Shortage backed by joint survey report on which
the No. & dt. are not mentioned. Although
insurance claims were lodged with insurance co. 4,19,029.00
Less Claim settled by insurance co. 4,19,029.00
NIL
2. Material against RR- No. NPM-439042 which
was not delivered by M/s W.E.(S) 14,98,521.00
3. (A) Valuation as per JSR/SR of damaged material
although JSR/SR are incomplete for claim but
claims were lodged
Rs.70,517.00
Less Claim settled by insurance co. 34358.00 36159.00
(B) Notional value of damaged paper on the basis of
estimation @ 20% average from similar damage 85,935.00
16,20,615.00
Less Amt. payable against admitted bills after
adjustment of advance paid and adjustment
of security deposit 41,312.43
NET AMOUNT RECOVERABLE 15,79,302.57
31. Learned counsel for the decree holder also submits that a mere plea of
"fraud" is not sufficient, as it is necessary to plead and prove the same. In
this regard, he places reliance on Gayatri Devi & Others Vs. Shashi Pal
Singh, (2005) 5 SCC 527.
32. From the aforesaid facts, it is clear that there is absolutely no merit in
the plea of the judgment debtor with regard to the alleged fraud claimed to
have been played by the plaintiff while filing and pursuing the suit. Since
the factual premises on which the said suit is based, does not exist, there is
no basis in dealing with any of the decisions relied upon by the judgment
debtor. There was no concealment of any relevant and material fact by the
plaintiff, including the fact that Rs.41,312.43 was payable by the plaintiff to
the defendant. However, that was not the full and complete story. The
plaintiff had set out the amount due to it, after granting adjustment of all the
amounts due to the defendant.
33. The submission of learned counsel for the judgment debtor that, had
any amount been due to the decree holder/ plaintiff, the judgment debtor's
name would have been shown as a sundry debtor in respect of
Rs.41,312.43, has no merit. As noticed above, the same account also shows
the much larger amount of Rs.15,79,302.57 was outstanding from the
judgment debtor/ defendant . All these aspects were open to the defendant/
judgment debtor to place before the Court and contest the suit on merits.
However, the judgment debtor consciously allowed the proceedings in the
suit to go ex-parte. Pertinently, he did not prefer an application under Order
IX Rule 13 CPC, or even a Regular First Appeal to assail the judgment
passed in the suit. The plea with regard to the alleged fraud is, even
otherwise, not open to be urged as the earlier attempt to raise the said plea
was turned down by this Court vide order dated 24.09.2013 while dealing
with E.A.(OS) No.573/2013, which has been noticed hereinabove. This
order was not assailed by the judgment debtor.
34. I have consciously set out the proceedings which had taken place in
the present execution proceedings in the last about 10 years. The aforesaid
proceedings demonstrate that the judgment debtor had to be issued Bailable
Warrants for his production on 8 occasions and Non-Bailable Warrants two
times. He was also issued notice of contempt on account of making a false
declaration in his affidavit with regard to his income and not depositing 33%
of his salary for satisfaction of the decree. He has not responded to the
same. The Court has also returned findings in the order dated 16.07.2010
that the judgment debtor has not correctly disclosed his income. The
judgment debtor, despite his Indica car being attached, proceeded to dispose
it of, even after undertaking to deliver the car and the keys to the decree
holder on 03.08.2015. Despite repeated directions, he has not made a
disclosure of the rent agreement in respect of the premises he is residing at.
The three orders passed by this Court on 03.10.2008, 28.04.2009 and
03.11.2015 directing him to file affidavits, disclosing his assets and income
etc. have remained uncomplied till date.
35. Learned counsel for the decree holder has extracted in the present
application the amounts received by the judgment debtor in his one bank
account with Union Bank of India, Maurya Enclave, Pitampura Branch
between 06.07.2010 and 03.07.2013, i.e. a period of about three years. He
has received amounts of Rs.28,16,525/-, which translates to income of about
Rs.9,50,000/- per annum. Pertinently, this is the income reflected only in
one bank account. As particulars of other bank accounts have not been filed,
it is not known if he has other income or not.
36. It is pointed out by learned counsel for the decree holder that the
judgment debtor in his affidavit dated 28.10.2015 has disclosed his monthly
expenses to the tune of Rs.14,820/-. Amongst the expenses claimed by the
judgment debtor, is salary payment to one staff member of Rs.8,000/- per
month. The judgment debtor had also filed an affidavit dated 28.08.2014,
wherein he has stated that he is offering consultation services in the
transport industry on ad-hoc basis. However, he has not filed his Income
Tax Returns for the period after 2012-13. As to what income he has derived
by offering consultation, has not been disclosed.
37. I may observe that, on record, there is a photocopy of the lease deed
dated 23.04.2013 entered into between one Sh.K.K. Srivastava and
Ms.Meena Devi, w/o Sh.K.K. Nareda - the judgment debtor, in respect of
the first floor residential property at CP-123, Pitampura, Delhi. The rent
disclosed in the said agreement is Rs.21,000/- per month. The judgment
debtor on a query by the Court states that his wife Smt. Meena Devi is
running her own transportation business. Pertinently, the said business is
disclosed to be running from the same premises where the judgment debtor
claims to be running his consultation business. He has stated before the
Court that his wife Smt. Meena Devi is matriculate. He states that he is
helping his wife in the said business. Looking to the entire circumstances, it
would not be unreasonable to assume that the judgment debtor has resorted
to running the business in the name of his wife. Pertinently, he himself is in
the line of the transportation, and is a man of that field. His wife is merely a
matriculate. It is not uncommon in our society for businesses being run in
the names of spouses and children by the head of the family for taxation and
other purposes.
38. The failure of the judgment debtor to disclose the income being
derived from his profession and business, despite specific directions
contained in the order dated 03.08.2015, which was reiterated on
03.11.2015, shows that he is deliberately concealing his professional and
business income.
39. From the facts taken note of hereinabove, it is amply clear that the
judgment debtor is incorrigible. He has tried every trick in the trade to delay
and defeat the execution proceedings. He has also acted with bad faith by,
firstly, making false disclosure about his income; secondly, by not
disclosing his income after 2012-13, even though he claims to be running a
consultancy business in the field of transportation; thirdly, by disposing of
his Indica car unilaterally even though the same stood attached and he had
undertaken to deliver the keys of the car as well as the car to the decree
holder. It is also clear that he has had the means to satisfy the decree - if not
in one go, in installments, as he grossed nearly 9 ½ Lakhs Rupees income
per annum during 2010-13. At this stage itself, I may observe that the said
income is found credited to his one bank account, the statement whereof he
had produced. The other accounts maintained by him, which have not been
disclosed, have not been taken into account.
40. As noticed above, he is evidently running the transport business in the
name of his wife as M/s Auto Global Express (as disclosed by the judgment
debtor himself) from the same address where he claims to be running his
consultancy business. He admits that he is assisting his wife in the said
business. He has not disclosed the income derived in the name of his wife in
M/s Auto Global Express. His wife has been shown to be a tenant of a
residential premises on a monthly rent of Rs.21,000/-. He himself claims to
have monthly expenses to the tune of Rs.15,000/-, including a salary
payment of Rs.8,000/- to one employee. He has not disclosed from where
he is deriving the income to meet the said monthly expenses.
41. Section 51 of the CPC provides that the Court may on the application
of the decree holder, order execution of the decree, inter alia, by arrest and
detention in prison, where arrest and detention is permissible under section
58. The proviso to the said section states that where the decree is for the
payment of money - which the present case is, execution by detention in
prison shall not be ordered unless the judgment debtor has been given an
opportunity of showing cause why he should not be committed to prison. In
the present case, that opportunity has been afforded to the judgment debtor
when notice on the present application was issued to him. He has also filed
his reply. The Court can direct civil imprisonment of the judgment debtor
for reasons to be recorded in writing - which I am presently doing, and the
Court is satisfied that the judgment debtor, with the object or effect of
obstructing or delaying the execution of the decree, inter alia, (ii) has, after
the institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed
any other act of bad faith in relation to his property, or (b) that the judgment
debtor has, or has had since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof, and refuses or
neglects or has refused or neglected to pay the same.
42. As noticed above, the judgment debtor has concealed his income and
assets and has committed several acts of bad faith, as noticed above. He has
also had the means to pay the amount of the decree holder, which he has
stoutly refused and neglected to pay. Section 58 CPC provides that every
person detained in the civil prison in execution of a decree shall be so
detained, where the decree is for the payment of a sum of money exceeding
five thousand rupees, for a period not exceeding three months.
43. Order XXI Rule 30 CPC states that every decree for the payment of
money, including a decree for the payment of money as the alternative to
some other relief, may be executed by the detention in the civil prison of the
judgment debtor, or by the attachment and sale of his property, or by both.
In the present case, the judgment debtor has not disclosed his other property
which could be attached and sold in execution to realize the decretal amount.
44. Order XXI Rule 41 CPC is also relevant in the facts of the present
case. The said rule provides that where a decree is for the payment of
money, the decree holder may apply to the court for an order that the
judgment debtor discloses his property and means for satisfying the decree.
Sub-rule (2) provides that where a decree for the payment of money has
remained unsatisfied for a period of thirty days, the court may, on the
application of the decree holder, and without prejudice to its power under
sub-rule (1), by order require the judgment debtor to make an affidavit
stating the particulars of the assets of the judgment debtor. In the present
case, orders directing the judgment debtor to disclose on affidavit all his
assets and income have been repeatedly been made, but to no avail. As
noticed above, the order dated 03.10.2008, 28.04.2009 and 03.11.2015 have
not been complied with. Even the affidavits filed appear to curtail more
information, than disclose truly and factually the assets and income of the
judgment debtor. Order XXI Rule 41 Sub-rule (3) provides that in case of
disobedience of any order made under sub-rule (2), the court may direct that
the person disobeying the order be detained in the civil prison for a term not
exceeding three months.
45. In my view, the present is an imminently fit case to direct the civil
imprisonment of the judgment debtor, looking to his entire conduct as
discussed hereinabove. As noticed above, the execution petition has been
pending for over nine years, during which period the petition has been listed
dozens of time before the Court. With great difficulty the decree holder has
been able to recover only Rs.1 Lakh towards partial satisfaction of the
decree. The amount outstanding under the decree, as on date, is over Rs.50
Lakhs. Even though the dictation of this order has proceeded on two dates,
the judgment debtor has exhibited stubbornness, and even during the
recording of this order he has not come forward to show the colour of his
money.
46. Learned counsel for the decree holder has stated that the decree holder
shall pay monthly subsistence allowance for the subsistence of the judgment
debtor during his civil imprisonment.
47. Looking to the facts & circumstances, the judgment debtor Mr.
Krishan Kumar Nareda is directed to be placed in civil imprisonment for a
period of three months, or for such shorter period within which the payment
of the decretal amount is made to the decree holder in respect whereof
warrants are hereby issued.
48. Learned counsel for the decree holder has deposited an amount of
Rs.3,000/- with the Court Master towards the subsistence of the judgment
debtor. He further states that if the same is found to be falling short of the
schedule fixed by the Government, he shall make up the balance within one
week by depositing the same before the appropriate authority. The amount
of subsistence allowance deposited with the Court Master shall be delivered
to the Police officer who shall take the judgment debtor in custody for being
sent to the civil prison.
49. Learned counsel for the judgment debtor states that the judgment
debtor is a Diabetic patient. The Jail authorities shall ensure that he is
provided medication while he is in imprisonment. He shall be permitted to
carry his personal belongings like spectacles.
50. Order dasti to the parties, under signature of the Court Master.
51. List the execution petition on 27.07.2016.
VIPIN SANGHI, J.
FEBRUARY 12, 2016
Sl/ B.S. Rohella
