Madras High Court
Srinivasan vs Sriram City Union Finance Ltd on 2 September, 2021
CRP (NPD)No.4824 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :02.09.2021
CORAM
The Hon'ble Mr.Justice Krishnan Ramasamy
CRP (NPD)No.4824 of 2017
and
C.M.P.No.22813 of 2017
1. Srinivasan
2. Ravikumar
3. Elangovan .. Revision Petitioners
vs.
Sriram City Union Finance Ltd.,
Rasipuram Branch,
D.No.78E, Sivamplaza
S.R.V.Complex, Katcheri Road,
Rasipuram, Rasipuram Taluk,
rep. by its Power Agent, Branch Manager.
..Respondent
PRAYER:
Civil Revision Petition filed under Section 115 of CPC, to set aside
the order and decreetal order, dated 06.09.2017, made in R.E.P.No.94 of
2016, in A.C.P.No.59 of 2012, on the file of the Sessions Judge (Fast Track
Mahila Court) Namakkal.
For Revision Petitioner : Mr.T.Dhanyakumar
For Respondent : Notice Served, no appearance
1/9
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CRP (NPD)No.4824 of 2017
ORDER
This Civil Revision Petition, filed under Section 115 of the Code of
Civil Procedure (C.P.C.) is directed against the order and decreetal order,
dated 06.09.2017, passed in R.E.P.No.94 of of 2016, in A.C.P.No.59 of
2012, on the file of the Sessions Judge, (Fast Track Mahila Court),
Namakkal.
2. The judgment debtors are the revision petitioners herein and the
respondent is the decree-holder.
3. The respondent/decree holder filed R.E.P.No.94 of 2016, under
Order 21 Rules 37 and 38 of CPC seeking arrest of revision petitioners, in
order to realize the decree amount. The said Petition was resisted by the
revision petitioners/judgment debtors by filing a counter, inter alia denying
the liability to pay the decree amount. The Executing Court, after hearing
both sides, viz., the respondent/decree-holder as well as the revision
petitioners/judgment debtors, passed the following order:-
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CRP (NPD)No.4824 of 2017
''The petitioner prays for arrest of respondents 1
to 3/judgement debtor, in order to realise the award
amount. But R1 to R3 side objected, as they were not
received any notice in award proceedings and they were
got only lesser income. It cannot be a valid ground in
this execution proceedings, unless, the respondents 1 to
3 taken steps for setting aside the award passed on
11.03.2013. Hence, it is decided to order arrest of
respondents 1 to 3. Arrest by 06.10.2017. Batta in a
week. ''
4. Challenging the said order, the present Civil Revision Petition is
filed.
5. Mr.T.Dhanyakumar, the learned counsel appearing for the
revision petitioners would submit that the main grievance of the revision
petitioners is that, without adjudicating on the means of the revision
petitioners to pay the decree amount, or substantial part thereof, the Court
below passed a non-speaking order of arrest against them for non-payment
of decree amount. Further, the learned counsel submitted that it is not the
case of the respondent that the revision petitioners are evading from
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CRP (NPD)No.4824 of 2017
payment of the decree amount, since the first and second revision petitioners
are working in Electricity Board and earning a sum of Rs.12,200 and
Rs,16,500/- respectively as on the date of filing of the Execution Petition
and insofar as the third revision petitioner is concerned, he has no work,
since all the revision petitioners were living hard life and has no sufficient
source of income, the revision petitioners were not in a position to pay the
decree amount. Therefore, the learned counsel submitted that, while
passing the order of arrest, the Court below has to give a clear-cut finding
on the issue of means to pay the decree amount or substantial part thereof.
The said aspect was not considered by the Court below and further against
the award amount, the respondent/decree-holder directly filed the Execution
Petition for arrest of the revision petitioners and the Court below also in a
mechanical manner passed the order of arrest of the revision petitioners.
Therefore, the learned counsel prayed for setting aside the order of arrest
passed against the revision petitioners.
6. Heard the learned counsel appearing for the revision petitioners. So
far as the respondent, Sri Ram City Union Finance Limited is concerned,
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CRP (NPD)No.4824 of 2017
despite service of notice on them and their name is printed in the cause list,
none appeared on their behalf.
7. This Court perused the cryptic order of the Court below. The
Hon'ble Supreme Court, in the judgment reported in (1980) 2 SCC 360 in
the case of (Jolly George Varghese and another vs. The Bank of Cochin)
held that to cast a person in prison, because of his poverty and consequent
inability to meet his contractual liability is too violative of Article 21,
unless, there is proof of the minimal fairness of his willful failure to pay,
inspite of his sufficient means and absence of more terribly pressing claims
on his means. It was further held that there must be some element of bad
faith beyond mere indifference to pay.
8. Therefore, though the judgment debtors may have some source of
income, but, duty is cast upon the Executing Court to conduct an inquiry,
which is popularly known as the "means inquiry", to ascertain that despite
sufficient income in the hands of the judgment debtors, they are deliberately
refusing to comply with the demand of the decree-holder and satisfy the
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CRP (NPD)No.4824 of 2017
decree amount. The Executing Court, without conducting such an enquiry,
cannot mechanically direct for the arrest and detention of the judgment
debtor. What is required to be seen is, Whether there has been a deliberate
attempt on the part of the judgment debtor to deny the decree-holder's
claim?
9. In the instant case, the first revision petitioner is said to have
been working in Electricity Department and earning Rs.12,200/- per month
and he is spending the same for his children's education and living hard life.
Similarly, the second revision petitioner is said to have been working in the
Electricity Department and earning Rs.16,500/- per month and the same is
required to meet out the educational expenses of his two daughters and he is
also living hard life. Insofar as the third revision petitioner is concerned, he
has no work at all. Hence, the endeavor of the Executing Court should be
to verify and ascertain the source of income of the revision petitioners and
find out whether the reasons stated by the revision petitioners/judgement
debtors for non-payment of the decree amount are true or not. Secondly, the
Executing Court should have considered that their monthly salary is
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CRP (NPD)No.4824 of 2017
Rs.12,200/-(insofar as first revision petitioner is concerned) and Rs.16,500/-
(so far as the second revision petitioner is concerned), which could be
utilized to settle the decree amount.
10. However, such an inquiry, having not been conducted by the
Executing Court, the impugned order suffers from infirmity and hence, the
same is liable to be set aside.
11. The Order of the Court below is non speaking order. Adequate
and intelligent reasons must be given for judicial decisions. The
requirement of giving reasons for the decision is essence and virtually a part
of “due process”.
12. Thus, this Court finds that there is fault in the decision making
process of the Court below and therefore, as stated supra, the order passed
by the Court below is set aside.
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CRP (NPD)No.4824 of 2017
13. Accordingly, the Civil Revision Petition is allowed, the order
impugned herein is set aside. No costs. Consequently, connected CMP is
closed.
02.09.2021
Index: Yes/No
Speaking/Non-speaking Order
sd
To
The Sessions Judge
(Fast Track Mahila Court) Namakkal.
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CRP (NPD)No.4824 of 2017
Krishnan Ramasamy, J.,
sd
CRP (NPD)No.4824 of 2017
02.09.2021
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