Dismissed

Shivanand Shetty S/O Giriyappa Shetty v. Vivekasri Vividoddesha Souharda Sahakari Niyamit

Karnataka HC4 Sept 2024WP/105275/2024

Case brief

AI extract

What is this about?

Judgment-debtor challenged issuance of arrest notice in execution of a cooperative society award after attachment of movables failed. The High Court held his repeated refusal of notices and non-appearance showed bad faith beyond mere default; the Executing Court had followed procedure. Writ petition dismissed.

What the court decided

AI extract

Shivanand Shetty S/O Giriyappa Shetty Vs… — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC-D:12767 WP No. 105275 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 105275 OF 2024 (GM-CPC)

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BETWEEN:

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SHIVANAND SHETTY S/O. GIRIYAPPA SHETTY, AGE: 35 YEARS, OCC: BUSINESS, R/O. JEERHAL KALGUDI, TQ: GANGAVATHI, DIST: KOPPAL-583227.

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…PETITIONER

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(BY SRI. GIRISH V. BHAT, ADVOCATE)

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AND:

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VIVEKASRI VIVIDODDESHA SOUHARDA SAHAKARI NIYAMIT, REPRESENTED BY ITS MANAGER, VEERABHADRAYYA S/O. SHARANAYYA HIREMATH,

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AGE: 35 YEARS, R/O. WARD NO.14, AMAR BHAGATHSINGH NAGAR, GANGAVATHI, DIST: KOPPAL-583227.

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GIRIJA A BYAHATTI Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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RAGHAVENDRA S/O. MARISWAMI, AGE: 42 YEARS, OCC: BUSINESS, R/O. NEAR KALMATH, OPP. VINAYAK BAKERY, GANGAVATI, DIST: KOPPAL-583227

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 23.07.2024 PASSED BY THE SENIOR CIVIL JUDGE, GANGAVATHI IN ON I.A. NO.2 IN EP NO.43/2022 VIDE ANNEXURE-E, AND DISMISS THE SAID APPLICATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the petitioner’s counsel.

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This writ petition is filed invoking Articles 226 and 227 of the Constitution of India and prayer is sought to issue a writ of certiorari to quash the impugned order dated 23.07.2024 passed by the Senior Civil Judge, Gangavathi on I.A.No.2 in E.P.No.43/2022 vide Annexure-E and dismiss the said application and also pass such orders deems fit and necessary under the facts and circumstances of the case.

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The factual matrix of the case of the petitioner before this Court is that, respondent No.2 obtained loan from the respondent No.1 bank and he failed to repay the same. Hence the Deputy Register of Cooperative Society passed the award in the petition filed by the respondent No.1 bank to recover the same from the petitioner as well as respondent No.2 on 17.09.2021. The respondent bank initiated the

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execution proceedings in EP No.43/2022 before the Senior Civil Judge, Gangavathi in 2022 itself and respondent filed I.A.No.2 praying the Executing Court to issue arrest notice against the petitioner and respondent No.2. The Executing Court allowed the same and directed issuance of arrest notice to the petitioner and respondent No.2. Hence the petitioner is before this Court.

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The main contention urged by the petitioner before this Court is that, the impugned order in allowing the application filed by the respondent No.1 is highly illegal and erroneous. It is also contended that, on 10.01.2024, the Executing Court has passed an order for attachment warrant of movables of the JDRs No.1 and 2. Though the bailiff went to the house of JDRs for execution of the attachment order, but however, on that day respondent No.1/decree holder and his advocate were not present and hence the bailiff returned the same by submitting a report on

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16.01.2024, stating that attachment order was not executed. However, the decree holder, without taking further steps for the execution of the said order, has filed an application for issue of arrest notice of JDRs under Order XXI Rule 37 of CPC. The learned Civil Judge of the Executing Court has also, without application of mind, allowed the application and passed a non-speaking order without assigning any reasons and hence allowing of the very application is illegal. It is also contended that the impugned order issuing arrest notice is void, illegal and violation of Article 21 of Constitution of India.

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The counsel for the petitioner also relied upon the judgment of the Hon’ble Supreme Court in the case of Jolly George Varghese and Another Vs. The Bank of Cochin, reported in AIR 1980 (2) SCC 360, wherein it is held that, the words “or has had since the date of the decree, the means to pay the amount of the decree”. This implies, if superficially

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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 the 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 International Covenant on Civil and Political Rights and Article 21 of the Constitution. The simple default to discharge the decree is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberator or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes 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.

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Having heard the petitioner’s counsel and also perusing the grounds urged in the petition and also the principles laid down in the judgment of the Hon’ble Supreme Court referred supra, the record discloses that Annexure-A is the award passed in the year 2021 itself. The said award discloses that, when the notice was issued to this petitioner as well as the original borrower, both of them have refused to receive notice and hence the Registrar proceeded to pass the award. It is also to be noted that, this award was passed in the year 2021 and the Execution Petition in terms of Annexure-B is filed in the year 2022. No doubt the counsel for the petitioner relies upon the Annexure-C, where there is an endorsement regarding the decree holder did not assist the bailiff to execute the attachment of movables warrant. The counsel also brought to the notice of this Court the application is filed invoking Order XXI Rule 37 read with Section 151 of CPC before the Executing Court, seeking for an order of

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arrest notice as per Annexure-D. The counsel also brought to the notice of this Court the affidavit sworn to by the decree holder in terms of paragraph No.2, wherein it is stated that there are no any movables belonging to the JDRs at his residence and hence sought for an order for issue of arrest notice to the JDRs and why he should not be put behind the bars for violation of the court order.

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The counsel also brought to the notice of this Court the order sheet of the Trial Court as per Annexure-E. Having perused Annexure-E, the Executing Court issued notice against both the petitioner as well as other principal borrower. At the first instance notice was not served. The order sheet discloses that, on 06.01.2023, notice to JDRs No.1 once again unserved, but JDR No.2 is served on his wife, that is the petitioner herein. In spite of service of notice, he

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did not appear before the Executing Court and he was absent when the matter was called on

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20.02.2023 and also on 12.04.2023. Even re-issued notice to the JDR No.1 on several occasions and ultimately notice against JDR No.1 was served on 20.09.2023. Thereafter, attachment warrant of movables of JDRs No.1 and 2 was re-issued on 10.01.2024 and also report was received that the same was unexecuted as no valuable property was found and the same is found in the order dated 21.02.2024. Thereafter only an application is filed under Order XXI Rule 37 of CPC for seeking an arrest warrant against JDRs No.1 and 2. The said I.A. is allowed and arrest notice is issued against both JDRs No.1 and 2 through RPAD and same was returned with an endorsement unserved as door locked and notice issued to JDR No.2 through post was returned with an endorsement that he refused. Hence arrest warrant was issued against the JDR No.2 since he had refused.

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Having taken note of this fact into consideration, it is very clear that, when the notice was issued by the Registrar when the claim was made, this petitioner has refused to receive the notice and did not appear before the Registrar and hence award was passed in 2021 itself. Having perused the records also, it discloses that cause notice was issued to this petitioner in the Execution Petition though this petition was filed in 2021-22 and the notice was also served and he did not choose to appear before the Executing Court. Thereafter only attachment of movables warrant was issued and the same was returned with an endorsement ‘No movables were found’.

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No doubt the counsel appearing for the petitioner relied upon Annexure-C, wherein an endorsement is made that the bailiff has filed a report stating that decree holder did not assist him to execute the movable warrant. But on perusal of the order sheet

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of the Trial Court, it is very clear that, when the attachment of movables was reissued and the same was returned unexecuted with a report of the bailiff that no valuable movables are found and thereafter only an application under Order XX1 Rule 37 of CPC is filed and the same is numbered as I.A.No.2. The

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Court also issued notice to the JDRs No.1 and 2 on the application filed by the DHR and the same was also sent through Court as well as through RPAD. The notice sent through Court was returned unserved as door locked and this petitioner has refused the notice sent through RPAD. Then only the Court has issued the arrest warrant against this petitioner after following the procedure and hence Annexure-C cannot be relied upon.

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Having taken note of all these materials on record, at no point of time this petitioner either appeared before the Registrar when the recovery proceedings was initiated and he had refused notice, and

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thereafter also when the cause notice was served, he did not appear before the Trial Court and thereafter only an application was filed for arrest notice. For the arrest notice also the petitioner had refused and then only the court duly exercised the powers and passed an order of arrest warrant.

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When such being the case, when this petitioner fails to respect the proceedings initiated against him, in spite of service even he had not responded and not obeyed to the cause notice, the question of invoking the writ proceedings does not arise. I do not find any error committed by the Trial Court and the Trial Court had followed the procedure and even issued the cause notice to him and the same has been served. Thereafter when he did not appear and responded to the cause notice when an application was filed under Order XXI Rule 37 of CPC, the same was also considered. Before issuing the arrest warrant also arrest notice was issued and the same

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was also refused. When such being the case, the petitioner is not entitled for any relief.

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Though the counsel appearing for the petitioner relied upon the judgment of the Hon’ble Supreme Court reported in AIR 1980 (2) SCC 360 (supra), under the very judgment also it is very clear that, if the judgment-debtor fails to obey the order or respond to the proceedings invoked against him, held that, simple default to discharge is not enough. But there must be some element of bad faith beyond mere indifference to pay some deliberate or rescuant disposition in the past or alternatively from a current means to pay the decree or a substantial part of it. The provision emphasizes 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.

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In the case on hand also, though the counsel relies upon this judgment, it goes against him having taken

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note of the fact it is not a simple default. Even when the proceedings was initiated against the petitioner before the Registrar, he did not appear before the Registrar and refused to appear, and thereafter award was passed. Even after the filing of the Execution Petition also, though cause notice was issued and the same was served, he did not choose to appear and contest the matter. Even he did not respond to the cause notice and when an application was filed under Order XXI Rule 37 of CPC, arrest notice was also issued and the same was also refused. Hence it is clear that it is nothing but the deliberate act by the petitioner. It is also a clear case of element of bad faith beyond mere indifference to pay and deliberate act of refusal to appear before the Registrar as well as the Executing Court. The said fact not only establishes the mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.

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When such being the factual aspects of the case, the judgment relied upon by the petitioner’s counsel will not come to the aid of the petitioner. Hence the petitioner is not entitled for any relief as sought in the writ petition. Hence, I do not find any ground to entertain this writ petition.

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In view of the discussion made above, I pass the following:

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ORDER

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Writ petition is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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gab CT-MCK List No.: 1 Sl No.: 49

Shivanand Shetty S/O Giriyappa Shetty v. Vivekasri Vividoddesha Souharda Sahakari Niyamit

Case brief

What is this about?

What the court decided

Shivanand Shetty S/O Giriyappa Shetty v. Vivekasri Vividoddesha Souharda Sahakari Niyamit

Case brief

What is this about?

What the court decided

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