Dismissed

Thommy v. Udaya Savings Company

Kerala HC15 Feb 2008CRP/1696/2000

Case brief

AI extract

What is this about?

In a civil revision petition challenging an order rejecting the petitioner's claim of inability to pay a decree debt, the High Court upheld the executing court's finding that the debtor held sufficient assets worth Rs. 10 lakhs against a debt of less than Rs. 50,000, as earlier security disputes were irrelevant to current solvency. However, the Court granted a three-month extension for payment.

What did the court decide?

The warrant of arrest remains valid, but three months' time is granted to the petitioners to pay the decree debt.

Thommy Vs Udaya Savings Company — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929

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CRP.No. 1696 of 2000(H)

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-----------------------

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( E.P.743 OF 1994OS.700/1991 of ADDL.SUB COURT, N. PARAVUR)

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REVN. PETITIONERS/ COUNTER PETITIONERS/JUDGMENT DEBTORS/DEFENDANTS :

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THOMMAY, S/O. OUSO, MAMBAYI, ELOOKARA KARA, KADUNGALLOOR VILLAGE.

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LEELAMMA, W/O. THOMMY, -DO-DO-

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BY ADV. SRI.S.SHYAM

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ADV. SRI.PHILIP M.VARUGHESE

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RESPONDENT//PETITIONER/DECREE HOLDER/PLAINTIFF:

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UDAYA SAVINGS COMPANY, ANGAMALY KARA, ANGAMALY VILLAGE, REPRESENTED BY ITS MANAGING PARTNER.

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BY ADV. SRI.S.V.BALAKRISHNA IYER

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ADV. SRI.P.B.KRISHNAN

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T. SANKARAN, J.

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C.R.P. No. 1696 OF 2000

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................................................................................... Dated this the 15^th February, 2008

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O R D E R

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The judgment debtors challenge the order dated 01.07.2000 in E.P.No. 743 of 1994 in O.S.No. 700 of 1991 on the file of the Addl. Sub Court, North Paravur. By the order impugned, the contentions put forward by the petitioners that they have no means to pay the decree debt or substantial portion thereof was rejected by the court below.

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The memorandum of Revision shows that the decree is for payment of a sum of Rs. 35,200/- with interest at the rate of 12% on the principal sum of Rs.30,000/from the date of the suit till date of decree and at the rate of 6% per annum thereafter and Rs.4,284/- as costs. The executing court has noted that the amount payable under the decree is less than Rs.50,000/-.

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The case of the decree holder is that the first judgment debtor is a business man and that he has landed properties. Though the first judgment debtor has sufficient means to pay the decree debt, he has wilfully abstained from paying the decree debt. The power of attorney holder of the decree holder was examined as P.W.1. He stated that the first judgment debtor is a business man having business in rice and real estate; he has landed property having an extent of one acre and that he is deriving income from the business and from landed property. The first judgment debtor was examined RW.1. He denied that he is a business man and that he has income from the business. He stated that he owns only an extent of 20 cents of land and that property is encumbered on account of debt due to a bank. R.W.1 had admitted that the extent of

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C.R.P. No. 1696 OF 2000

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20 cents of land would fetch a value of Rs.10 lakhs. The court below arrived at a conclusion that he has sufficient means to pay the decree debt and that he has wilfully refused and neglected to make payment as per the terms of the decree. On these findings, a warrant of arrest was directed to be issued against the judgment debtor.

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The learned counsel for the petitioner submitted that against the judgment and decree of the trial court, the defendants had filed A.S.No. 389 of 1994 before this court and an interim stay was granted in the appeal on condition that the defendants shall offer sufficient security for the decree amount. The aforesaid extent of 20 cents was offered as security. The plaintiff/decree holder opposed the offer to furnish security on the ground that the security furnished was inadequate. It was contended by the decree holder that the property was worth only Rs. 3 lakhs and that it was highly encumbered. The executing court did not accept the security . Accordingly, the stay was not available in favour of the judgment debtors. It is seen that subsequently, A.S.No. 389 of 1994 was dismissed for default on 22.08.2001. Learned counsel for the petitioners submitted that the court below was not justified in arriving at the conclusion that the property is worth Rs.10 lakhs as it had already rejected the security offered by the judgment debtors for the decree amount on the ground that the property offered is not adequate to be accepted as security for the decree amount. It was also pointed out that the decree holder themselves stated that the property was worth only Rs. 3 lakhs and therefore the admission by the first judgment debtor that the property is worth Rs.10 lakhs cannot be made a basis for arriving at the conclusion that he has sufficient means to pay the decree debt or a substantial portion thereof.

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I am not inclined to accept the contention raised by the petitioners. The direction to furnish security was made as a condition for granting stay. The property

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C.R.P. No. 1696 OF 2000

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having an extent of 20 cents was offered as security, but the court below did not accept the same as sufficient security. That means that stay was not available in favour of the judgment debtors. Subsequently, the appeal itself was dismissed for default and therefore, the effect of the interim order of stay has gone. Moreover, the objections raised by the decree holder regarding insufficiency of security was in the year 1995. The decree holder then contended that the property was worth Rs. 3 lakhs . The order impugned was passed in 2000. By that time, the value of the property would have gone up. The proceedings in the matter of offering security as a condition for stay cannot be made a basis for contending that the first judgment debtor has no means to pay the decree debt. The question is whether he is having sufficient property or assets. The first judgment debtor himself admitted that his property is worth Rs.10 lakhs and that there is a building in that property. The decree amount is less than Rs.50,000/-. The contention of the first judgment debtor that he has no means to pay the decree debt was therefore rightly rejected by the court below. No grounds are made out for interference under Section 115 of the Code of Civil Procedure.

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However, taking into account the facts and circumstances of the case, I am inclined to grant three months' time from today to the petitioners to pay off the decree debt.

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The Civil Revision Petition is disposed of as above.

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K.T. SANKARAN, JUDGE.

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C.R.P. No. 1696 OF 2000

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K.T. SANKARAN, J. ........................................................

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C.R.P. No.1696 of 2000

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Dated this the 15^th February, 2008

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O R D E R

Thommy v. Udaya Savings Company

Case brief

What is this about?

What did the court decide?

Thommy v. Udaya Savings Company

Case brief

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What did the court decide?

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