Punjab-Haryana High Court
Rajinder Kumar Chauhan And Another vs Tata Capital Financial Services & ... on 3 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:044549
CR-7470 of 2017 (O&M) -1- 2024:PHHC:044549
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-7470 of 2017 (O&M)
Date of Order:03.04.2024
Rajinder Kumar Chauhan and another
.Petitioners
Versus
Tata Capital Financial Services Ltd. and another
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: None for the petitioners.
Mr. Suresh Kumar Kaushik, Advocate
for Mr. Vikrant Sharma, Advocate
for the respondents.
ANIL KSHETARPAL, J
1. The petitioners herein are Judgement Debtor Nos.2 and 3. In an
execution petition filed for implementing arbitration award dated
28.06.2016, for recovery of Rs.1,77,15,404/- along with interest @18% per
annum, the Executing Court has ordered civil imprisonment of the
petitioners for a period of 3 months.
2. This revision petition is pending for the last 7 years. Though,
no stay was granted, however, the learned counsel representing the decree
holders submits that the petitioners were arrested but subsequently granted
bail on the same day. Neither the petitioners nor their counsel are present.
However, with the able assistance of the learned counsel representing the
decree holders, this court has perused the paper book containing the
impugned order. It is evident that the Executing Court has not recorded any
positive finding to the effect that the judgment debtors are intentionally
evading to pay the amount although they have sufficient resources.
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3. In execution of the civil court decree for recovery of the
amount, the inability of judgment debtors to pay the amount does not
automatically result in civil imprisonment. The Court is required to record a
positive finding that the judgment debtors are intentionally evading to re-pay
the amount despite resources.
4. At one stage, the petitioner appeared in the Court and stated that
he does not have any resources and therefore they are at the mercy of the
court. It has also come on record that previously the petitioners were sent to
6 months' imprisonment in criminal original contempt petition no.27 of
2013.
5. Keeping in view the aforesaid facts, the impugned order passed
by the Additional District Judge, on 18.09.2017, is set aside, while remitting
the matter back to the Executing Court to pass a fresh order keeping in view
the law laid down by the Supreme Court in paragraphs 10 and 11 of the
judgment passed in Jolly George Varghese and another vs. The Bank of
Cochin, (1980) 2 SCC 360, which read as under:-
"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 Arts. 14 and 19, obligates the State not to
incarcerate except under law which is fair, just and
reasonable in its procedural essence. Maneka Gandhi's
case as developed further in Sunil Batra v. Delhi
Administration, Sita Ram & Ors. v. State of U.P. and
Sunil Batra v. Delhi Administration 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
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CR-7470 of 2017 (O&M) -3- 2024:PHHC:044549
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 inferable 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."
6. All the pending miscellaneous applications, if any, are also
disposed of.
April 03, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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