Karnataka High Court

Chandrakumar Pandit vs K Narayana on 12 January, 2021

Author: S R.Krishna Kumar

                             1




 IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

       WRIT PETITION No. 31862 OF 2015 (GM-CPC)
BETWEEN:

1.      CHANDRAKUMAR PANDIT
        AGED ABOUT 32 YEARS,
        S/O LATE SANJEEV PANDIT K
        R/AT AMBA COMPOUND,
        PADIL,MANGALORE-575007.
2.      YOGISHWARA PANDIT
        AGED ABOUT 50 YEARS
        S/O LATE SANJEEV PANDIT K
        R/AT AMBA COMPOUND
        PADIL, MANGALORE-575007.
3.      VEDARAJ PANDIT,
        AGED ABOUT 30 YEARS
        S/O LATE SANJEEV PANDIT K
        R/AT AMBA COMPOUND
        PADIL, MANGALORE-575007.
                                            ...PETITIONERS
(BY SRI. H. PAVANA CHANDRA SHETTY , ADV.)

AND:

K NARAYANA
AGED ABOUT 69 YEARS,
S/O LATE POOVAPPA,
R/ATKADRI KANA BETTU,
POST BEJAI, MANGALORE-575004.
                                            ...RESPONDENT
( NOTICE TO RESPONDENT HELD SUFFICIENT
  V/O/DT: 02.01.2020)

      THIS W.P. IS    FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED: 15.04.2015 PASSED BY THE PRL.SENIOR CIVIL
JDUGE AND CJM, DAKSHINA KANNADA IN EXECUTION PETITION
NO. 19/2015, VIDE ANNEXURE-A.
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       THIS W.P. COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

                            ORDER

This petition by the judgment debtors in

Ex.No.19/2015 on the file of the II Addl.Senior Civil Judge,

Mangalore, is directed against the impugned order dated

15.04.2015 passed by the trial court issuing arrest warrant

against the petitioners.

2. Heard the learned counsel for petitioners. Though,

the respondent was served, he has remained

unrepresented and has not contested the petition. Perused

the material on record.

3. In addition to reiterating the various contentions

urged in the petition and referring to the documents

produced, learned counsel for the petitioners submit that

the impugned order is not only contrary to the provisions

contained in Order 21 Rules 37 and 38 CPC, but also to the

decision of the Apex Court in the case of Jolly George

Varghese & Anr. vs. The Bank of Cochin - (1980) 2 SCC

360, and consequently, the impugned order passed by the

trial court deserves to be set aside.

4. A perusal of the impugned order will clearly

indicate that the same is contrary to the aforesaid decision

of the Apex Court, wherein it was held as under:-

"1. This litigation has secured special leave from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised pre-occupation has forsaken the civil debtor whose personal liberty is imperilled by the judicial process itself, thanks to Section 51 (Proviso) and Order 21 Rule 37 of the Civil Procedure Code. Here is an appeal by judgment-debtors -- the appellants -- whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank -- the respondent, which has ripened into a decree and has not yet been discharged. Is such deprivation of liberty illegal?

2. From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights. The article reads:

"No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation, (emphasis added)"

An apercu of Article 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expounded and expanded by a chain of rulings of this Court beginning with Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . Article 21 reads:

"21. Protection of life and personal liberty.-- No person shall be deprived of his life or personal liberty except according to procedure established by law."

A third, though humdrum, question is as to whether, in this case, Section 51 has been complied with in its enlightened signification. This turns on the humane meaning of the provision.

10. Equally meaningful is the import of Article 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 Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi case [(1978) 1 SCC 248] as developed further in Sunil Batra v. Delhi Administration[(1978) 4 SCC 494 : 1979 SCC (Cri)

155] , Sita Ram v. State of U.P. [(1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085] and Sunil Batra v. Delhi Administration [ WP No. 1009 of 1979, decided on December 20, 1979] 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 Article 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 inferrable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.

11. 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 Article 11 (of the Covenant) and Article 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, harmonised Section 51 with the Covenant and the Constitution".

5. The material on record indicates that the aforesaid

decision of the Apex Court is squarely applicable to the

facts of the instant case and consequently, the impugned

order passed by the trial court deserves to be set aside on

this short ground alone and the matter may be remitted

back to the trial court to proceed further in the aforesaid

execution proceedings in accordance with law.

6. In the result, I pass the following:-

ORDER

(i) Petition is allowed.

(ii) The impugned order dated 15.04.2015 passed by

the trial court in Ex.No.19/2015 is hereby set aside.