The Proprietor vs M/S. Shriram Chits Tamil Nadu Ltd
2021 Latest Caselaw 20545 Mad

                                                                                    C.R.P(NPD)No.528 of 2015

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED : 06.10.2021

                                                             CORAM
                                      The Hon'ble Mr.Justice Krishnan Ramasamy

                                                   C.R.P (NPD)No.528 of 2015
                                                             and
                                                       M.P.No.1 of 2015

                     The Proprietor,
                     Saravana Stores,
                     129, Usman Road,
                     Opp: Panagal Park,
                     T.Nagar, Chennai 600 017.                                     .. Revision Petitioner

                                                                vs.

                     M/s. Shriram Chits Tamil Nadu Ltd.,
                     Madras 600 002.                                                        ..Respondent

                     PRAYER:
                                  Civil Revision Petition filed under Article 227 of the Constitution of
                     India to set aside the order passed in E.P.No.990 of 2013 in ARC No.1327
                     of 2004 dated 15.10.2014, on the file of the X Assistant Judge, City Civil
                     Court.


                                        For Revision Petitioner - M/S.R.N.Amarnath

                                        For Respondent           - No appearance




                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                    C.R.P(NPD)No.528 of 2015

                                                            ORDER

This Civil Revision Petition is filed against the order passed by

the Court below, viz., X Assistant Judge, City Civil Court, Chennai, in

E.P.No.990 of 2013, in ARC No.1327 of 2004 dated 15.10.2014.

2. The brief facts of the case are as follows:-

The respondent herein is the decree-holder. He filed an Execution

Petition in E.P.No.1992 of 2007 praying to execute the decree passed in

ARC No.1327 of 2004, dated 31.03.2005. In the said Execution Petition,

judgment debtors 2 and 3 remained absent, hence, attachment of salary of

judgement debtors 2 and 3 was ordered and pro order for attachment was

also served on the Garnishee of the judgment debtors 2 and 3. On

10.06.2008, as the Garnishee for 3rd judgment debtor remained absent, the

attachment order as against the 3rd judgment debtor was made absolute.

Thereafter, the respondent-decree holder filed a Petition in E.P.No.990 of

2013, under Order 21 Rule 46 (b) CPC, to direct the garnishee to depart the

attached amount from third defendant's salary, viz., R.Iyappan, as per the

order, dated 10.06.2008 passed in E.P.No.1992 of 2007. According to the

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

respondent/decree holder, the 3rd judgment debtor is working as Salesman in

the Proprietory concern, namely, New Saravana Stores (Bramandamai), the

revision petitioner herein.

3. It is the contention of the learned counsel for the revision

petitioner that the respondent-decree holder filed E.P.No.990 of 2013

praying to execute the decree in favour of the five defendants. Amongst

five defendants, the Garnishee of the 3rd defendant is the revision petitioner

before this Court. In the Execution Petition, the revision petitioner is not a

party but only a Garnishee order has been passed, directing the revision

petitioner to attach the salary of R.Iyyappan and discharge the decretal

amount in favour of the respondent-decree holder. Aggrieved by the said

garnishee order, the revision petitioner approached the Court below and has

stated that the 3rd defendant in the suit, is not at all working in their

Concern, viz., ''Saravana Stores''.

3.1 The learned counsel for the revision petitioner pointed out that

the impugned order, viz., garnishe order was passed against the Proprietor

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

of ''Saravana Stores'', viz., Mr. Pondurai, and therefore, notice has to be

served on the said Mr.Pondurai, Proprietor of Saravana Stores, whereas, the

notice was served wrongly to the Proprietor of New Saravana Stores

(Bramandamai) situated at No.129, Usman Road, T.Nagar, Chennai, as if

the 3rd defendant, Mr.R.Iyyappan is employed under them. The learned

counsel further contended ''Saravana Stores'', and New Saravana Stores

(Bramandamai) are two different entities. The respondent-decree holder is

quite aware of this fact and in spite the same, they served notice to the

revision petitioner herein, viz., Saravana Stores, 129, Usman Road, Opp:

Panagal Park, T.Nagar, Chennai 600 017. Though the same was brought

to the knowledge of the Court below, the Court below only found fault with

the revision petitioner and stated that onus is cast upon on the revision

petitioner to prove that the 3rd defendant, Mr.R.Iyyappan is not at all

employed under them.

3.2 Further, the learned counsel submitted that, once the revision

petitioner denies that the third defendant, Mr.R.Iyyappan is not working in

their Concern, it is for the respondent/decree holder to prove that the third

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

defendant is working under the revision petitioner's Concern, viz.,

''Saravana Stores''. Furthermore, the garnishee order was passed only against

the Proprietor, Mr.Pondurai of Proprietor of Saravana Stores, which is

different entity. Under these circumstances, the Court below has wrongly

sent notice to New Saravana Stores (Bramandamai) and the revision

petitioner contends that, the Court below passed Garnishee order,

misconstruing that both concerns are one and the same, when the fact

remains that both are different entities, and therefore, the garnishee order

cannot be executable and hence, it is liable to set aside and accordingly, the

order of the Court below is liable to be quashed.

4. This Revision Petition was filed during 2015 and the notice was

also served. In spite of the notice, none appeared on behalf of the

respondent and hence, the name of the respondent was printed in the cause

list.

5. Heard the learned counsel for the revision petitioner and perused

the entire materials available on record.

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

6. The only point arises for consideration is, 'Whether, the Proprietor

of "New Saravana Stores (Bramandamai)" and the Proprietor of "New

Saravana Stores" situated at No.129, Usman Road, Opp: Panagal Park are

one and the same'?

7. In the Execution Petition, Garnishee order was passed as against

the Proprietor of “New Saravana Stores”, however, inadvertently, the notice

was sent to New Saravana Stores (Bramandamai) under the assumption that

both concerns are one and the same. It is the duty of the respondent/decree

holder to provide the correct address obviously.

7.1 From a perusal of the records and upon hearing the learned

counsel for the revision petitioner, it is clear that the proprietary concern of

the revision petitioner and the proprietary concern mentioned in the

EP.No.990 of 2013 as against the 3rd judgment debtor's Garnishee namely,

the proprietor of New Saravana Stores (Bramandamai) is not one and the

same. There was a mistake crept in, at the time of service of the notice and

thereby, they wrongly served the notice to the revision petitioner's concern.

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

7.2. Once the revision petitioner took the stand that the 3rd judgment

debtor is not working in its concern, the burden is shifted on the

respondent/decree holder to prove that the 3rd judgment debtor, namely,

Mr.R.Iyyappan is working in the revision petitioner concern. But the Court

below shifted the burden on the revision petitioner to prove that third

judgment debtor is not working in their concern. If at all, the third judgment

debtor was not working in the revision petitioner concern, it is not necessary

for the revision petitioner to prove that the alleged person, Mr. R.Iyyappan

is working in their concern.

7.3 Obviously, in Chennai, there are number of Stores, run under the

name and style ''Saravana Stores'', that too, all are either by the proprietor

concern or in the name of the partnership or in the name of the company and

therefore, there is every likelihood of arising confusion in the matter of

serving the notice. Therefore, the respondent should have clearly mentioned

the correct particulars as regards the working place of the 3rd judgment

debtor in order to serve the notice to the Garnishee of the 3rd judgment

debtor. Here, the particulars regarding the working place of the 3rd

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

judgment debtor were not clearly given by the respondent/decree holder,

and it appears that there was confusion among two concerns, which had

same name and style with prefix and suffix difference. Though this fact was

brought to the notice of the Court below, without ascertaining the correct

details regarding the Garnishee of the 3rd judgment/debtor or without

insisting upon the respondent/decree holder to furnish the correct details,

the Court below has erroneously passed the impugned order, which cannot

be sustained and the same is liable to be set aside.

8. Accordingly, the Civil Revision Petition is allowed and the

impugned order dated 15.10.2014 made in E.P.No.990 of 2013 in ARC

No.1327 of 2004 is hereby set aside. No costs. Consequently, connected

Miscellaneous Petition closed.

06.10.2021

Index: Yes/No Speaking/Non-speaking Order jd/sd

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

To X Assistant Judge, City Civil Court, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P(NPD)No.528 of 2015

Krishnan Ramasamy, J., jd/sd

C.R.P (NPD)No.528 of 2015

06.10.2021

https://www.mhc.tn.gov.in/judis