A money-decree judgment debtor challenged an attachment warrant issued by a Commercial Court despite having failed to comply with conditional stay orders requiring deposit of the decreetal amount. The High Court found no illegality in the executing court's order and dismissed the petition.
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NC: 2024:KHC:10776 WP No. 4380 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 4380 OF 2024 (GM-CPC)
BETWEEN:
MR SYED ZAHID ALI S/O SYED MOHAMMED, AGED ABOUT 61 YEARS, R/AT 20, 1ST CROSS, MILLERS ROAD BENSON TOWN, BENGALURU – 560 001.
…PETITIONER
(BY SRI. NAVEED AHMED.,ADVOCATE) AND:
Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA
…RESPONDENTS (BY SRI. G. KRISHNAMURTHY, SENIOR COUNSEL FOR SMT. G.K.BHAVANA.,ADVOCATE)
NC: 2024:KHC:10776 WP No. 4380 of 2024
THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN COMMERCIAL EXECUTION NO. 246/2021 IN THE FILE OF LXXXII ACC AND SJ BENGALURU COMMERCIAL COURT(CCH-83) AND SET ASIDE THE IMPUGNED DTD 20.12.2023 IN COMMERCIAL EXECUTION NO. 246/2021 IN THE FILE OF LXXXII ACC AND SJ BENGALURU COMMERCIAL COURT (CCH-83) ENCLOSED AS ANNX-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated 20.12.2023 passed in Comml.Ex.No.246/2021 whereby the Executing Court is directed issuance of attachment warrant against the petitioner – Judgment Debtor.
NC: 2024:KHC:10776 WP No. 4380 of 2024
petitioner approached this Court in Commercial Appeal COMAP 83/2021 in which this Court granted a conditional order of stay on 07.09.2021, which reads as under:
ORDER ON IA.NO.1/2021
This application is filed seeking for stay of judgment and decree dated 30.03.2021 passed in Com.OS.No.3889/2017.
We have heard Sri M.D.Raghunath, learned counsel appearing for appellant and Sri Shanmukhappa, learned counsel appearing for respondents. Perused the judgment and decree which is under challenge. The appellant who is the defendant before trial Court has suffered a money decree which is a offshoot of suit filed by the respondents-plaintiffs contending inter alia that they have entered into Memorandum Of Understanding on 29.09.2011 with appellant-defendant to develop the property owned by him and in pursuance of said MOU, a sum of Rs.20,00,000/was paid initially and subsequently, a further sum of Rs.34,00,000/- Lakhs was paid and in all, a sum of Rs.54,00,000/- was paid by plaintiffs to defendant which is also duly acknowledged by the defendant and he has also executed a receipt on 16.11.2011 for having received the said amount. However, he had failed to execute Joint Development Agreement as agreed to as per MOU and defendant is said to have postponed on one pretext or the other. It is further case of plaintiffs that defendant had executed an absolute sale deed in favour of one Sri
NC: 2024:KHC:10776 WP No. 4380 of 2024
Dhananjaya on 15.04.2014 conveying the immoveable property in violation of Clause-7 of MOU and on coming to know of the same, in the year 2016, the defendant was confronted and he has admitted his liability and agreed to refund Rs.54,00,000/- and in furtherance of it, he issued two cheques i.e. for Rs.4,00,000/- and Rs.10,00,000/- which came to be dishonoured on presentation and defendant had failed to make said payment and as such, a complaint under Section 138 of N.I.Act has been filed and it is pending adjudication.
The defendant on service of suit summons appeared, filed the written statement contending that MOU had lapsed but admitted to have received Rs.54,00,000/- from the plaintiffs and also contended that suit is barred by time.
The learned trial Judge after considering the pleadings and after evaluating the evidence tendered by parties both oral and documentary, by impugned judgment, decreed the suit.
Several contentions have been raised in the appeal which requires to be adjudicated at the time of final hearing of the appeal. Sri M.D.Raghunath, learned counsel appearing for appellant would contend that if decree is executed, the present appeal would be rendered infructuous and contending that appellant has got a very good case on merits, he seeks for judgment and decree being stayed.
Per contra, Sri Shanmukappa, learned counsel appearing for respondents would support the judgment and
NC: 2024:KHC:10776 WP No. 4380 of 2024
decree and contends that judgment and decree which is under challenge being a money decree if this Court were to arrive at a conclusion that it requires to be stayed subject to appellant depositing of decreetal amount, it may be stayed, as otherwise, even after succeeding in the appeal in the ultimate analysis, decree would be a paper decree and as such, successful plaintiffs would not be able to recover the decreetal amount.
Having heard the learned Advocates appearing for the parties and having regard to Rule 5 of Order XLI of CPC, we are of the considered view that judgment and decree requires to be stayed subject to appellant depositing entire decreetal amount excluding a sum of Rs.14,00,000/- which is said to have been paid by the appellant to respondents in the proceedings initiated under Section 138 of N.I.Act which fact is not seriously disputed by Sri Shanmukappa, learned counsel appearing for respondents. We are of the view that in the event of plaintiffs succeeding in the present appeal, they should not be driven to the Executing Court to recover the said amount by filing an execution petition and spending their valuable time.
In view of the fact that appellant has already sold the immovable property which was agreed to be jointly developed under MOU dated 29.09.2011, the chances of plaintiffs recovering amount from defendant-appellant would be remote. In other words, he would contend that judgment and decree passed by trial Court if affirmed would only be a paper decree, as such we are of the considered view that
appellant should be directed to deposit the decreetal amount excluding Rs.14,00,000/- already paid before this Court within a period of eight (08) weeks from today in two installments and the first installment shall be deposited within four weeks and the balance 50% within four weeks thereafter, failing which, this interim order of stay shall automatically stand vacated without reference to the Bench. Accordingly, IA.No.1/2021 is allowed.
ORDER
Heard.
Admit.
Call for records.
Paper books to be filed in fourteen weeks, failing which, appeal shall stand dismissed without reference to the Bench.”
by this Court would stand vacated and the appeal itself would stand dismissed.
“Having heard the learned counsel for the appellant and having perused the order of the Hon’ble Apex Court, it is seen that liberty was granted only to the limited extent of preferring an application for modification of the order dated 07.09.2021. Hence, in our opinion, application seeking recall of the order dated 16.03.2022 is not sustainable.
Accordingly, I.A.No.1/2022 stands rejected.”
NC: 2024:KHC:10776 WP No. 4380 of 2024
petitioner to do so, the impugned order dated 20.12.2023 passed by the Executing Court requires to be stayed. The said submission made on behalf of the petitioner was taken note of the this Court
and the following interim order was passed on 26.02.2024:
“Heard.
Learned counsel for the petitioner submits that the petitioner would take necessary steps to obtain interim order in COMAP.No.83/2021 which is pending before the Hon’ble Division Bench and in order to enable the petitioner to do so, the impugned order dated 20.12.2023 passed in Com.Ex.No.246/2021 may be kept in abeyance for a limited period. The said submission is placed on record.
Issue emergent notice to the respondents returnable by 15.03.2024.
In the meanwhile, for the limited purpose of enabling the petitioner to take necessary steps to obtain appropriate orders in COMAP.No.83.2021 before the Hon’ble Division Bench, the impugned order dated 20.12.2023 passed in Com.Ex.No.246/2021 is hereby stayed till the next date of hearing.
Re-list on 15.03.2024.
Liberty is reserved in favour of respondents to seek vacation / modification of this order.”
obtained by the petitioner in the aforesaid COMAP No.83/2021. In
any event, the conduct of the petitioner in repeatedly not complying with the orders passed by this Court as stated supra in COMAP No.83/2021 is sufficient to come to the conclusion that the petitioner is not entitled to any more indulgence at the hands of this Court.
Sd/JUDGE
DHA List No.: 1 Sl No.: 11
1 issue framed by the court
Whether the Executing Court's order dated 20.12.2023 directing issuance of an attachment warrant against the judgment debtor could be interfered with under Article 226/227.
Colour shows how this judgement treated each authority
Radhey Shyam Vs. Chhabi NathApplied¶9
(2015) 5 SCC 423 · Who else cites this
1 provisions across 1 enactments
Syed Zahid Ali
M/s Ganapathi Vishnu Lakshmi Bramma Saraswathi Enterprises
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