Karnataka High Court
M/S. Balaji Agencies vs Sri. A. H. Ramesh Kumar on 9 December, 2021
Bench: K.S.Mudagal
W.P.No.5067/2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION NO.5067/2019 (GM-CPC)
BETWEEN:
1. M/S.BALAJI AGENCIES
A PROPRIETOR CONCERN
HAVING OFFICE AT PLOT NO.262/1
ROAD NO.15, JUBLEE HILLS
HYDERABAD
REP. BY ITS PROPRIETRIX
SMT.RENUKA MOR
W/O SURENDER KUMAR
AGED ABOUT 56 YEARS
R/AT PLOT NO.262/1
ROAD NO.15, JUBLEE HILLS
HYDERABAD - 500033
2. SMT.RENUKA MOR
W/O SURENDER KUMAR
AGED ABOUT 56 YEARS
R/AT PLOT NO.262
ROAD NO.15, JUBLEE HILLS
HYDERABAD - 500033
(THE SAID SMT.RENUKAR MOR
W/O SURENDER KUMAR IS
REPRESENTED BY HER GPA HOLDER
AS WELL AS HER HUSBAND
SRI SURENDER MOR
S/O SRI NANDLAL MOR
ALSO R/AT PLOT NO.262/1
ROAD NO.15, JUBLEE HILLS
HYDERABAD - 500033) ...PETITIONERS
(BY SRI A.SAMPATH, ADVOCATE FOR
SRI PUNEETH K AND SRI PRASAD H.C. ADVOCATES)
W.P.No.5067/2019
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AND:
1. SRI A.H.RAMESH KUMAR
AGED ABOUT 64 YEARS
S/O HANUMANTHA SETTY
NO.573, 1ST MAIN
NAGENDER BLOCK
BSK 1ST STAGE, BENGALURU - 560 050
ALSO PROPRIETOR OF
M/S RATNA ENTERPRISES
2. SRI R.M.SHIVAKUMAR
AGED ABOUT 49 YEARS
S/O K.R.MANIVASAGAM
R/AT PLOT NO.71
KAVERI STREET, RAJAJI NAGAR
VILLIVAKKAM, CHENNAI - 600 049
ALSO PROPRIETOR OF
M/S SHIVA TRADE LINKS
3. SRI M.VIJAYA
AGED ABOUT 72 YEARS
S/O MARI GOWDA
R/AT NO.401, WINDSOR APARTMENT
PANCHAVATI CIRCLE
KALIDASA ROAD
MYSORE - 570 024
4. THE MYSORE & CHAMARAJNAGAR
DISTRICT CO-OPERATIVE CENTRAL BANK LTD.,
NEHRU CIRCLE, ASHOKA ROAD
MYSORE - 570 001
REPRESENTED BY ITS
GENERAL MANAGER ...RESPONDENTS
(BY SRI ASHOK MESTA, ADVOCATE FOR
SRI SAMPAT ANAND SHETTY, ADVOCATE FOR R4;
NOTICE TO R1 TO R3 D/W V/O DTD:12.01.2021)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 03.12.2018 (ANNEXURE-G) PASSED BY THE I
ADDITIONAL SENIOR CIVIL JUDGE & CJM, MYSURU IN
EXECUTION PETITION NO.279/2017.
W.P.No.5067/2019
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
"In recalling the attachment warrant issued against
movables of respondent No.4 for recovery in execution of
the decree passed in O.S.No.143/2008 whether the
executing Court acted arbitrarily" is the question involved
in this case.
2. The petitioners filed O.S.No.143/2008 before
III Additional Chief Judge, City Civil Court at Hyderabad for
recovery of Rs.46,48,000/- with interest from respondent
Nos.1 to 4 jointly and severally.
3. The case of the petitioners was that they
entrusted to respondent No.2 the demand drafts and
cheques drawn by them in favour of P.S.S.K Mills Limited,
Mysore, Sri Rama S.S.K Mills, Mysore and Shiva Trade
Links for remittance to those companies. It is further case
of the petitioners that respondent Nos.1 and 2 represented
themselves to be the agents of the drawees of the demand
drafts and the cheques, collected those instruments for the
W.P.No.5067/2019
purpose of delivering the same to the
beneficiaries/drawees.
instead of paying proceeds to the concerned beneficiaries,
in collusion with respondent Nos.3 and 4 opened an
account with respondent No.4 Bank in the name of
respondent No.3, encashed those instruments and
misappropriated them, thereby committed cheating,
misappropriation and wrongful loss to the petitioners.
5. On full fledged trial, the judgment and decree
was passed in O.S.No.143/2008 as per Annexure-A
decreeing the suit for Rs.6,74,000/- with interest against
respondent Nos.1 and 2 jointly and severally and
Rs.21,26,000/- with interest against respondent Nos.1 to 4
jointly and severally. None of the respondents challenged
the said judgment and decree. Therefore the said
judgment and decree attained finality.
6. The petitioners filed Execution Petition before
Hyderabad Court for executing the decree in
OS No.143/2008. On precept, the decree was transferred
W.P.No.5067/2019
to the Court of I Additional Senior Civil Judge & CJM
Mysuru for execution. The said decree was registered in
execution petition No.279/2017. The petitioners sought
attachment of movables of respondent No.4.
7. In the said execution petition, the Executing
Court issued warrant for attachment of movable of the
respondent No.4 Bank. Respondent No.4 filed application
as per Annexure-E under Section 94(E) read with Section
151 of CPC for recalling the attachment warrant on the
ground that Judgment debtor No.3 owns several other
properties, therefore the petitioners shall proceed against
him first.
8. Respondent No.4 contended that in the
transactions which are subject matter of O.S.No.143/2008
respondent Nos.1 to 3 and one R.Seetha Ram have
cheated respondent No.4 Bank also. Respondent No.4
further claimed that therefore it had initiated dispute
against respondent No.3 and R.Seetha Ram before the
Joint Registrar of Cooperative Society, Mysuru Division,
Mysuru and in that case, has taken attachment of
W.P.No.5067/2019
immovable property of respondent No.3. Respondent No.4
claimed that the petitioners have to proceed against
immovable properties of respondent No.3 shown in that
case. The copy of the petition in arbitration case
No.JRM/D1/40/DDS/2005/06 is produced at Annexure-C.
In 'A' schedule of Annexure-C, respondent No.4 has
furnished the particulars of 8 properties as the immovable
properties of respondent No.3.
9. Though it is contended that the Joint Registrar
of Cooperative Society had attached those properties, such
order and particulars of such properties are not placed
before this Court. Even otherwise the question is when the
decree is joint and several whether the decree holder shall
be compelled to proceed against the particular judgment
debtor only.
10. For recalling the warrant the trial Court relied
on the judgment of this Court in H.P.Jalajakshi Vs
Karnataka Bank1. Admittedly the decree against
respondent Nos.1 to 4 for recovery of Rs.21,26,000/- with
ILR 2004 KAR 96
W.P.No.5067/2019
interest at 18% was joint and several. It is settled position
of law that in such cases the decree holders can proceed
against all or either of them. Perusal of the judgment
relied by the trial Court in H.P.Jalajakshi's case referred to
supra shows that their suit was against the borrower and
the surety. There the decree holder proceeded against the
surety in preference to the principal debtor.
11. In that case though this Court upheld the
contention that the decree holders can proceed
simultaneously against the principal debtor and surety,
only to balance equities the decree holders were directed
not to proceed against the surety as long as the principal
debtor regularly pays up the installment. There it was
contended that the principal debtor was paying the
installments therefore there is no need to proceed against
the surety since he is paying the amount.
12. The present case is not a case of the principal
borrower or surety. The case of the petitioners is that
respondent No.4 also became a party to the fraud played
on the petitioners, thereby caused damages to them.
W.P.No.5067/2019
Therefore the trial Court was not justified in recalling the
attachment warrant applying the judgment in
H.P.Jalajakshi's case referred to supra. Therefore the
impugned order is arbitrary and unsustainable in law. The
petition is allowed.
The impugned order Annexure-G is hereby quashed.
The Executing Court shall proceed with the matter in the
light of observations made above.
Sd/-
JUDGE
KSR
