Telangana High Court
Mrs. Veena Agarwal vs Margadarshi Chit Pvt Ltd on 29 November, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
APPEAL SUIT No.6 of 2020
JUDGMENT:
This Appeal is filed by the petitioner aggrieved by the order dated
14.10.2019 passed by the II Additional District and Sessions Judge, Ranga
Reddy District at L.B.Nagar in E.A.No.100 of 2015 in E.P.No.229 of 2014 in
ARC.No.683 of 2011.
2. The petitioner filed a claim petition under Order XXI Rule 59 read with
Section 151 of CPC seeking stay of sale of the attached articles contending that
they belonged to her. She filed a petition stating that she was the absolute
owner and possessor of the residential flat bearing Flat No.206, Prakjyothi High
Land, Dairy Farm Cross Road, Upperpally, Ranga Reddy District having
acquired the same by way of registered sale deed. She was also an Income Tax
Assessee engaged in the trading business as Proprietor of M/s.Aditya Steels for
the past several years. On 30.05.2015, some persons came to her house for
attaching the movables by showing an attachment warrant against her husband
Mr.Sharad Chand Agarwal, issued by the Court. Even after her specific claim
that the movables belonged to her and they had nothing to do with Mr.Sharad
Chand Agarwal, without paying any heed to her objection, the said persons
Dr.GRR, J
as_6_2020
forcefully attached the movables owned and possessed by her. The said
movables were as follows:
(i) Wooden Sofa Set (4 Pieces) - 2 Sets, (ii) TCL TV - 1 No., (iii) Electrolux
Fridge -1 No., (iv) Samsung Washing Machine - 1 No., (v) Almyrah Steel - 4
Nos., (vi) Computer LG - 1 No., (vii) Table Wooden - 1 No., (viii) Chairs
Plastic - 1 No., Wheel Chair - 1 No., (ix) Fans - 3 Nos., (x) Tables - 4 Nos.
2.1. She further stated that the above articles were owned and possessed by
her having purchased the same from out of her earnings. No other person has
got any claim and right over the same. The said articles could not be attached in
execution of the decree passed against Mr.Sharad Chand Agarwal and prayed to
release the above said articles.
3. The respondent No.1 i.e. M/s.Margadarsi Chits Private Limited
represented by its General Manager filed a counter affidavit contending that the
petitioner in collusion with Judgment Debtor No.4 (for short JDR.No.4) came
up with the present petition only to protract the proceedings. There were no
valid grounds to stay the sale of attached movables.
4. The petitioner examined herself as PW.1 and marked Exs.A1 to A5 on
her behalf. Ex.A1 is the agreement dated 31.03.2008 for purchase of the
household articles. Ex.A2 is the Encumbrance Certificate dated 02.03.2015
showing the names of the petitioner and one Aditya Agarwal as the executants
Dr.GRR, J
as_6_2020
of the property in Flat No.206, Prakjyothi High Land, Dairy Farm Cross Road,
Upperpally, Ranga Reddy District in favour of the Manager, Oriental Bank of
Commerce. Ex.A3 is the audit report of M/s.Aditya Steels, dated 30.09.2006.
Ex.A4 is the bill for purchase of Samsung Washing Machine dated 12.12.2014
in the name of the petitioner. Ex.A5 are the Income Tax Returns of the claim
petitioner for the period from 2003-2004 to 2013-2014 (11 in Number). The
respondent No.1 - Decree Holder (for short D.Hr.) examined its General
Manager as RW.1. No documents were marked on behalf of the respondent
No.1 - D.Hr.
5. The learned II Additional District and Sessions Judge, Ranga Reddy
District at L.B.Nagar on considering the evidence adduced by both the parties
observed that the Execution Petition (for short "EP") was filed for recovery of
money from JDR.No.4, who was none other than the husband of the claim
petitioner. The residential address of the claim petitioner as well as the
JDR.No.4 was one and the same and they were living in the same house as wife
and husband and there were no disputes between them. They were joint owners
of Flat No.206. The property that was attached were movables in Flat No.206.
As such, it was difficult to arrive at a conclusion as to who was the owner of the
movables available in the house of the claim petitioner and JDR.No.4.
Dr.GRR, J
as_6_2020
6. The Executing Court further disbelieved the Agreement of Sale of
household articles marked under Ex.A1 observing that when PW.1 was doing
flourishing business and was paying Income Tax Returns, her purchase of
movables like TV, Cooler, Fridge, Fans, etc., in second hand was unbelievable.
Admittedly no receipts were handed over to PW.1 along with Ex.A1, no sale
letter was obtained and delivery of possession was not mentioned in Ex.A1 and
the name of the vendor Sri Dhirendra Kumar Garg was not mentioned in the
claim petition.
7. The Executing Court however considering Ex.A4, the bill evidencing
purchase of Samsung Washing Machine, raised the attachment with regard to
the said item and dismissed the petition with regard to other movables.
8. Aggrieved by the said dismissal of the petition against other movable
properties, the claim petitioner filed this appeal contending that the court below
failed to appreciate the fact that no document was produced by the D.Hr., to
prove that the movable properties belonged to respondent No.5 - (JDR.No.4)
husband of the appellant. The respondent No.5 was not having the power to
dispose the movables for his benefit. The respondent No.5 does not have any
business income. The appellant and her son managed and run the business in
the name of M/s.Aditya Steels and they purchased the movables out of their
business income. The observation of the trial court that the respondent No.5
Dr.GRR, J
as_6_2020
was the joint holder along with the appellant in respect of the property bearing
Flat No.206 was not correct. The property stands in the name of the appellant
and her son. The respondent No.5 had no right, title and interest in the same
and prayed to allow the appeal.
9. Heard the learned counsel for the appellant and the learned counsel for
the respondent No.1 - D.Hr.
10. The learned counsel for the appellant submitted that the appellant was the
wife of respondent No.5 (JDR.No.4). The respondent No.5 gave guarantee to
the loan obtained from respondent No.1. The Executing Court gave attachment
warrant for attaching the movables to JDR.No.4 and the bailiff visited the house
of JDR.No.4 and attached the movables therein. They are the household articles
used on day to day basis. The respondent No.1 - D.Hr. was not proceeding
against the Principal or other guarantors. No document was filed by the
respondent No.1 - D.Hr. to show that the movables exclusively belonged to
JDR.No.4. The claim petitioner was a trader having independent source of
income. She filed Income Tax Returns in proof of her income. As per the
Encumbrance Certificate, marked under Ex.A2, the house property was in the
name of the claim petitioner and her son Mr.Aditya Agarwal, but not in the
name of the claim petitioner and the respondent No.5 as observed by the
Executing Court and prayed to allow the appeal.
Dr.GRR, J
as_6_2020
11. The learned counsel for the respondent No.1 - D.Hr. on the other hand
contended that no document was filed by the appellant - claim petitioner to
show the purchase of articles attached. Ex.A1 - agreement of sale was a created
document. No reliance can be placed upon the same. Purchase of movable
articles in second hand could not be believed. No interference is required in
dismissing the petition with regard to the attachment of other movables and
prayed to dismiss the appeal.
12. As seen from the record, the contention of the claim petitioner was that
she was the owner and possessor of the movable properties attached by the
Court. Admittedly, the claim petitioner was none other than the wife of
JDR.No.4 and they both were residing in the same Flat No.206, Prakjyothi High
Land, Dairy Farm Cross Road, Upperpally, Ranga Reddy District from where
the above movable properties were attached. The appellant - claim petitioner
examined herself as PW.1 and got filed the documents marked under Exs.A1 to
A5. Ex.A1 is the agreement of sale for purchase of household articles dated
31.03.2008. The Executing Court disbelieved the said document on the ground
that Sri Dhirendra Kumar Garg, the vendor was not examined and that the claim
petitioner could not have purchased the second hand articles when she had a
flourishing business. She filed Ex.A2, the Encumbrance Certificate to prove
that Flat No.206 was in the name of the claim petitioner and her son Mr.Aditya
Agarwal and it was mortgaged in favour of the Manager, Oriental Bank of
Dr.GRR, J
as_6_2020
Commerce and that the JDR.No.4 had nothing to do with it. She also filed
Ex.A5, Income Tax Returns which would show that the claim petitioner was a
trader and was having source of income to purchase the movable properties
present in her house. The respondent No.1 - D.Hr. failed to file any
documentary evidence to show that the movables belonged to respondent No.5
(JDR.No.4). When the respondent No.1 - D.Hr. failed to file any documentary
evidence to show that the movable properties belonged to respondent No.5 -
JDR.No.4, the executing court believing the said articles as that of JDR.No.4
and ordering attachment, as both the husband and wife are living together, is
considered as improper. Disbelieving the evidence adduced by the claim
petitioner and supporting the order of attachment where there is no evidence is
not in accordance with the principles of law. It is the duty of the executing
court before issuing attachment warrant to confirm that the property sought for
attachment belonged to judgment debtor and he has disposing power over the
same which he may exercise for his own benefit. In the absence of any proof
that the articles belonged to JDR.No.4, the attachment order will not sustain.
Hence, it is considered fit to raise the attachment.
13. In the result, the Appeal Suit is allowed raising the attachment in respect
of the movable properties from the house of the claim petitioner. No order as to
costs.
Dr.GRR, J
as_6_2020
As a sequel, miscellaneous applications pending in this appeal, if any,
shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date: 29th November, 2023
Nsk.
