Madras High Court
3 Per Contra vs 9 In View Of The Above Observations on 12 November, 2021
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
P.VELMURUGAN, J.
The judgment debtors have filed the application in A.No.4228 of 2021
challenging the order of arrest of the learned Master passed in E.P.No.56 of
2019 dated 12.11.2021. The respondent is the decree holder, who got the
Arbitration Award in his favour.
2 Learned counsel appearing for the judgment debtors contended
that they have disclosed all their assets and stated that they have no other
means to discharge the liability. In spite of adducing evidence to that effect,
the learned Master instead of passing an order of attachment of the properties
of the judgment debtors, has erroneously passed the present impugned order
of arrest. Further, to enforce the Arbitration Award, one cannot initiate
execution proceedings. The learned counsel further contended that some of
the assets were mortgaged and the value of the assets disclosed by the
judgment debtors would suffice to discharge the debts of the secured creditors
and the decree holder. The learned Master should have brought the assets for
auction and through the sale proceeds the debts can be adjusted, but, instead,
the Master passed the order of arrest, which is erroneous and liable to be
https://www.mhc.tn.gov.in/judis
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
dismissed.
3 Per contra, the learned counsel appearing for the
respondent/decree holder contended that despite having sufficient means and
the demand made by the decree holder, the applicants/judgment debtors have
failed to discharge their liability. Therefore the decree holder has initiated
execution proceedings and the learned Master has also rightly passed the
order of arrest, which is well founded and reasoned and the same does not
call for any interference of this Court.
4 Heard the learned counsel on either side and carefully perused
the materials available on record.
5 Now this Court has to decide whether the Master is right in
passing the order of arrest in the execution proceedings initiated by the decree
holder.
6 It is seen that the applicants/judgment debtors had not pleaded
no means, instead they admitted that they owned properties, which value is
more than the mortgaged amount and the debts due to the decree holder.
Even though one of the judgment debtors pleaded no means, it is only an after
thought, as rightly observed by the learned Master, since they did not plead
https://www.mhc.tn.gov.in/judis
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
the same in the counter.
7 Pending the above applications, part payment was made by the
applicants/judgment debtors as directed by this Court, but not paid the entire
debt. The learned Master in his order has observed that when the Court
directed the applicants/judgment debtor to deposit Rs.25,00,000/- as a
condition to prefer appeal, immediately a cash was deposited by the judgment
debtors, which shows that despite having sufficient capacity to mobilize fund
to pay the decreetal amount due to the decree holder, they evaded the
payment and not obeyed the order of the Court.
8 From the evidence adduced by the judgment debtors before the
Master, the Master has arrived at a concrete conclusion that the
applicants/judgment debtors suppressing the real facts. Therefore once the
applicants admitted their liability and also admitted that they have immovable
properties, which values more than the debts, they should have paid the
decreetal amount before initiating the execution proceedings by the decree
holder. Now they cannot take a stand that the Master would have ordered for
attachment and bring the assets for auction instead of ordering arrest.
9 In view of the above observations, this Court does not find any
illegality or infirmity in the order of arrest passed by the learned Master,
https://www.mhc.tn.gov.in/judis
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
which according to this Court, is well founded and reasoned.
10 Accordingly, the application in A.No.4228 of 2021 is dismissed
and consequently connected applications are closed. However, the learned
counsel appearing for the applicants/judgment debtors seeks some time to
make payment. In order to give an opportunity to the judgment debtors, time
is granted for a period of four weeks from today i.e. 24.03.2022 and if the
judgment debtors failed to make the payment, the respondent/decree holder is
at liberty to initiate steps to realize the decreetal amount in the manner known
to law.
24.03.2022
cgi
https://www.mhc.tn.gov.in/judis
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
P.VELMURUGAN, J.
cgi
A.Nos.4228 & 4229 of 2021 and
A.No.1333 of 2022 in E.P.No.56 of 2019
24.03.2022
https://www.mhc.tn.gov.in/judis
