Bhagwati Construction Company ... vs Union Of India
2021 Latest Caselaw 16710 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14494/2019

Bhagwati Construction Company, Suratgarh, Suratgarh A Partnership Firm Through Its Partner Bhagwati Prasad S/o Shri Khyali Ram, B/c Hindu Aged About 49 Years, R/o Ward No. 6, Suratgarh, District Sriganganagar.

----Petitioner Versus Union Of India, Through Commander Works Engineer (P), Bikaner

----Respondent Connected With S.B. Civil Writ Petition No. 14363/2019 Bhagwati Construction Company Suratgarh, A Partnership Firm Through Its Partner Bhagwati Prasad S/o Shri Khyali Ram B/c Hindu Aged About 49 Years, Resident Of Ward No. 6, Suratgarh, District- Sriganganagar.

----Petitioner Versus Union Of India, Through Commander Works Engineer (P), Bikaner.

                                                                    ----Respondent


    For Petitioner(s)        :     Mr. S.L. Jain
    For Respondent(s)        :     Mr. B.P. Bohra, Senior Panel Counsel
                                   for Union of India.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reportable 10/11/2021

1. In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

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2. These writ petitions have been preferred claiming the

following reliefs:

CWP No.14494/2019:

"A) Quash and set aside the impugned order dated 03.09.2019 (Annexure-6) passed by the Court of Additional District Judge, Suratgarh in Execution Case No.2/2014 (Annx1) - Union of India Vs. Bhagwati Construction Company; and B) The application filed by the non-petitioner dated before the Court of Additional District Judge, Suratgarh in Execution Case No.2/2014 (Annx1) - Union of India Vs. Bhagwati Construction Company be dismissed; and C) Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioner."

CWP No.14363/2019:

"A) Quash and set aside the impugned order dated 03.09.2019 (Annexure-6) passed by the Court of Additional District Judge, Suratgarh in Execution Case No.1/2014 - Union of India Vs. Bhagwati Construction Company; and B) The application filed by the non-petitioner dated before the Court of Additional District Judge, Suratgarh in Execution Case No.1/2014 - Union of India Vs. Bhagwati Construction Company be dismissed; and C) Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioner."

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3. Learned counsel for the petitioner submits that an award

dated 17.12.1999 was passed under the Arbitration and

Conciliation Act, 1996 against the present petitioner for a sum of

Rs.2,94,749/- alongwith 12% interest from 29.06.1999, for which

the execution petitions were moved by the non-petitioner on

26.05.2000.

4. Learned counsel for the petitioner further submits that

thereafter, the learned Executing Court directed the decree-holder

to file a list of properties of the judgment-debtor, whereupon on

28.05.2011, the non-petitioner produced a list of agricultural

properties only. As per learned counsel, even as per the revenue

records, the petitioner is not the owner of the said agricultural

properties.

5. Learned counsel for the petitioner also submits that since

admittedly, the petitioner is not having any other property, except

the agricultural land of which the petitioner is not even the owner,

therefore, the impugned orders dated 03.09.2019 passed by the

learned Executing Court are illegal, and the same also resulted

into civil imprisonment of the petitioner, assuming that it has the

means and capacity for making the payment, but it is not doing

so.

6. Learned counsel for the petitioner relied upon the precedent

law laid down by the Hon'ble Supreme Court in Jolly George

Varghese & Anr. Vs. The Bank of Cochin, reported in AIR

1980 SC 470, relevant portion of which reads as under:

"5. At this stage, we may notice the two provisions. Section 51 runs thus:

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51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had sine the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

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Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

(Emphasis added)

We may here read also order 21 Rule 37:

37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:

Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

6. Right at the beginning, we may take up the bearing of Art. 11 on the law that is to be applied by an Indian Court when there is a specific provision in the Civil Procedure Code, authorising detention for non- payment of a decree debt. The Covenant bans imprisonment merely for not discharging a decree debt. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Art. 51 (c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with

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one another". Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A. H. Robertson in "Human Rights-in National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.

From the national point of view the national rules alone count.. with regard to interpretation, however, it is a principle generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations.

The position has been spelt out correctly in a Kerala ruling on the same point. In that case, a judgment- debtor was sought to be detained under O. 21, r. 37 C.P.C. although he was seventy and had spent away on his illness the means he once had to pay off the decree. The observations there made are apposite and may bear exception:

The last argument which consumed most of the time of the long arguments of learned counsel for the appellant is that the International Covenants on Civil and Political Rights are part of the law of the land and have to be respected by the Municipal Courts. Article 11, which I have extracted earlier, grants immunity from imprisonment to indigent but honest judgment- debtors.

The march of civilization has been a story of progressive subordination of property rights to personal freedom; and a by-product of this subordination finds noble expression in the declaration that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." This revolutionary change in the regard for the human person is spanned by the possible shock that a resuscitated Shylock would suffer if a modern Daniel

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were to come to judgment when the former asks the pound of flesh from Antonio's bosom according to the tenor of the bond, by flatly refusing the mayhem on the debtor, because the inability of an impecunious oblige shall not imperil his liberty or person under the new dispensation proclaimed by the Universal Declaration of Human Rights. Viewed in this progressive perspective we may examine whether there is any conflict between s. 51 CPC and Article 11 of the International Covenants quoted above. As already indicated by me, this latter provision only interdicts imprisonment if that is sought solely on the ground of inability to fulfil the obligation. Section 51 also declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under s. 51 of the Code, but this does not violate the mandate of Article 11. However, if he once had the means but now has not or if he has money now on which there are other pressing claims, it is violative of the spirit of Article 11 to arrest and confine him in jail so as to coerce him into payment..........

The judgment dealt with the effect of international law and the enforceability of such law at the instance of individuals within the State, and observed:

The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the

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operational protocol. The individual cannot come to Court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member-States; but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority.

While considering the international impact of international covenants on municipal law, the decision concluded:

Indeed the construction I have adopted of s. 51, CPC has the flavour of Article 11 of the Human Rights Covenants. Counsel for the appellant insisted that law and justice must be on speaking terms-by justice he meant, in the present case that a debtor unable to pay must not be detained in civil prison. But my interpretation does put law and justice on speaking terms. Counsel for the respondent did argue that International Law is the vanishing point of jurisprudence is itself vanishing in a world where humanity is moving steadily, though slowly, towards a world order, led by that intensely active, although yet ineffectual body, the United Nations Organisation. Its resolutions and covenants mirror the conscience of mankind and insominate, within the member States, progressive legislation; but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts under these international covenants.

While dealing with the impact of the Dicean rule of law on positive law, Hood Phillips wrote-and this is all that the Covenant means now for Indian courts administering municipal law:

The significance of this kind of doctrine for the English lawyer is that it finds expression in three ways. First, it

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influences legislators. The substantive law at any given time may approximate to the "rule of law", but this only at the will of Parliament. Secondly, its principles provide canons of interpretation which express the individualistic attitude of English courts and of those courts which have followed the English tradition. They give an indication of how the law will be applied and legislation interpreted. English courts lean in favour of the liberty of the citizen, especially of his person: they interpret strictly statutes which purport to diminish that liberty, and presume that Parliament does not intend to restrict private rights in the absence of clear words to the contrary.

9. We concur with the Law Commission in its construction of s. 51 C.P.C. It follows that quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Art. 11 of the Covenant, because then no detention is permissible under s. 51, C.P.C.

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 Art. 11 (of the Covenant) and Art. 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

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would have, by this construction, sauced law with justice, harmonised s. 51 with the Covenant and the Constitution."

7. On the other hand, learned counsel for the respondent

vehemently submits that list of the agricultural properties of the

petitioner has been furnished before the learned court below, and

thus, it is clear that the petitioner is wilfully not abiding by the

orders.

8. Heard learned counsel for the parties as well as perused the

record of the case.

9. This Court, on a perusal of aforementioned application dated

28.05.2011, finds that the list of agricultural properties does not

include the name of the present petitioner as owner of the said

properties. This Court has also seen the affidavit of non-petitioner

filed before the learned Executing Court, and finds that the same

also does not make any disclosure of any property owned by the

present petitioner.

10. This Court also takes note of the facts, as noticed in the

impugned orders dated 03.09.2019 passed by the learned

Executing Court.

11. This Court further takes note of the observations made by

the learned Executing Court in the impugned orders, that the

petitioner does have means and capacity to pay, which fact is not

reflected from the record.

12. On a perusal of the list of properties, as above, and the

observations made by the learned trial court in its order dated

05.11.2012 (at Page 37 of the paper-book of CWP

No.14363/2019), it is clear that the petitioner does not have any

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means or capacity to pay. The relevant portion of the said order

dated 05.11.2012 reads as under:

"ijarq fZMdzhnkj ds }kjk d`f"kHkwfe ls lacaf/kr nLrkost tekcanh ds voyksdu ls Li'V gS fd lEiw.kZ d`f"kHkwfe vFkok mldk dksbZ va"k Hkkx en;wu Hkxorhizlkn ds uke ls bUnzkt ugha gS vfirq :iknsoh iRuh "ksjkjke] lR;ukjk;.k oYn "ksjkjke] ukudpan] oYn lqYrkukjke] eywjke oYn lq[kjke] dkywjke oYn lkyxjke] iseknsoh iRuh iUukjke] vkseizdk"k] Hkknjjke] Jo.kdqekj] tokgjyky] ds uke ls gksdj banzkt gS ,oa rglhynkj Hk-w v- lwjrx<- ds }kjk vius i=kad [email protected]@v- fnukafdr 29-11-2005 ds tfj;s en;wu Hkxorh iq= [;kyhjke iq= ukudjke ds uke ls fdlh izdkj dh d`f"kHkwfe ugha gksuk mYysf[kr fd;k x;k gSA"

13. In view of the above, the impugned orders dated 03.09.2019

passed by the learned Executing Court in Execution Case

No.2/2014 (Union of India Vs. Bhagwati Construction Company

and Execution Case No.1/2014 (Union of India Vs. Bhagwati

Construction Company) are quashed and set aside, as means and

capacity to pay is not established in this case. However, it shall be

open for the respondent to continue with the execution, strictly in

accordance with law.

14. The present petitions stand disposed of accordingly. All

pending applications also stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

77-78-SKant/-

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