Dismissed

K.T.Jaffar v. M/S.Essen Trading Company

Kerala HC20 Jun 2016CRP/199/2016

Case brief

AI extract

What is this about?

In this Civil Revision Petition, the High Court dismissed the appeal challenging the execution court's order finding the judgment debtor possessed sufficient means to pay the decree debt. The revision court upheld the findings regarding the petitioner's landed property and decline to accept medical evidence proving he was incapacitated from working.

What did the court decide?

The Civil Revision Petition is dismissed, the impugned order is upheld, and the execution petition stands restored for potential arrest of judgment debtor.

K.T.Jaffar Vs M/S.Essen Trading Company — Execution and Attachment | Kerala HC (2016)

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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.HARILAL

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MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938

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CRP.No. 199 of 2016

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EP.17/2015 OF SUB COURT, OTTAPPALAM OS.357/2011 of PRL.SUB COURT, IRINJALAKUDA DATED 04-03-2016

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PETITIONER(S)/DECREE DEBTOR:

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K.T.JAFFAR, PROPRIETOR, BISMI TRADING COMPANY, S/O.UMMER, 45 YEARS, KURUPPAMTHODI HOUSE, SANKARAMANGALAM DESOM, PATTAMBI VILLAGE AND TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.R.SREEHARI

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RESPONDENT(S)/DECREE HOLDER:

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M/S.ESSEN TRADING COMPANY, REPRESENTED BY ITS MANAGING PERTNER BABY E.N, S/O.NARAYANAN, EDATHIPARAMBIL, PALISSERI DESOM, KALLUR THEKKUMURI, VILLAGE, CHALAKKUDI TALUK, KALLUR POST. 680 317.

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BY ADV. SRI.O.D.SIVADAS

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = C.R.P. No. 199 of 2016

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- - - - - -- - - - - - - - - - - - - - Dated this the 20th day of June, 2016

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O R D E R

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The petitioner herein is the defendant in O.S. No.357/2011 on the files of the Principal Sub Court, Irinjalakuda, as well as the Judgment Debtor in E.P.No.17/2015 of the same court. The above Execution Petition was filed for realisation of decree debt by arrest and detention of the Judgment Debtor in civil prison.

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According to the respondent, as per the

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decree, the petitioner is liable to pay an amount of `26,09,916/- with interest at the rate of 12% per

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annum from the date of suit till the date of decree and thereafter, at the rate of 6% per annum on the principal amount till realisation. The respondent further submitted that the petitioner has not paid

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C.R.P. No. 199 of 2016

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-: 2 :-

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the decree amount in spite of having sufficient

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means to pay the amount. He has willfully refused to pay the said amount so as to defeat the decree. So, if warrant is issued to the petitioner, the decree amount could be realised.

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The petitioner entered appearance and filed a counter affidavit, contending that he has no means to pay the amount. According to him, the business which was being conducted by him, has failed and now he has no means to pay the decree amount. So also, he is undergoing treatment for mental depression for the last five years.

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The respondent was examined as PW1 and Exts. A1 to A3 were marked. No oral evidence was

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adduced on the side of the petitioner; but produced documents marked as Exts.B1 to B7. The court below considered the question, whether the petitioner/ Judgment Debtor has sufficient means to pay the

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C.R.P. No. 199 of 2016

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-: 3 :-

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decree debt and also considered the evidence adduced

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by both parties. After considering the evidence on record, the court below found that the petitioner has sufficient means to pay the decree amount and the plea of no means has no bona fides . The legality and correctness of this finding is challenged in this Original Petition(Civil).

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Heard the learned counsel for the

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petitioner and the learned counsel appearing for the respondent.

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The learned counsel for the petitioner advanced arguments, in support of the grounds raised in the Civil Revision Petition and drew my attention to Exts.B1 to B7 produced by the petitioner.

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Per contra, the learned counsel appearing for the respondent advanced arguments to justify the impugned order and drew my attention to Exts.A1 to A3 produced by the respondent before the court

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C.R.P. No. 199 of 2016

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-: 4 :-

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below.

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The point to be considered is, whether

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there is any illegality or impropriety in the

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finding that the petitioner has sufficient means to pay decree debt? Needless to say, the initial burden

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is on the decree holder to show that the judgment debtor has sufficient means to pay the decree debt. In order to discharge the said burden, the respondent was examined as PW1 and going by the deposition of PW1, it shows that he has mentioned the details of the landed property and the income, which is being received from the buildings, by way of rent. On an examination of the deposition, this Court finds that nothing has been brought out in cross-examination to discredit the evidence given by the respondent. In order to prove the ownership and possession of the landed property, the respondent has produced Exts.A1 to A3 copy of the sale deeds.

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C.R.P. No. 199 of 2016

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-: 5 :-

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The petitioner submits that the property

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covered by Ext.A3 sale deed had been sold away in auction, by the proceedings initiated by the

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Dhanalekshmi Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act),2002 and now he is not in possession of that property. But, at the same time, he admitted that he is in possession of the shop rooms covered by Exts.A1 and A2. But, it is his case that the said property is under attachment made by the DRT as per Ext.B3. Therefore, it could be seen that even now, he is in possession of the property and building covered by Exts.A1 and A2.

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Merely on the reason that the property is attached by another creditor, it cannot be said that he is not in ownership and possession of the property. So also, it is the case of the respondent

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C.R.P. No. 199 of 2016

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that he is getting `20,000/- as rent from the said

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shop rooms covered by Exts.A1 and A2. No evidence

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has been produced to substantiate the said contention except Ext.B5 certificate from the Panchayat. Ext.B5 certificate issued by the Panchayat shows that as submitted by the respondent in his oral evidence, four shop rooms belong to the petitioner. But, licence has not been granted to those shops to conduct business. Therefore, it stands undisputed that the petitioner is in possession of four shop rooms. Therefore, in my view, it cannot be said that he is a man having no means.

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Coming to the other contention that he is undergoing treatment for mental depression, he has produced Exts.B1, B6 and B7 certificates to prove the same. In Ext.B1, the Doctor certified that he is suffering from affective disorder and he is coming

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C.R.P. No. 199 of 2016

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-: 7 :-

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for regular follow up. Ext.B6 does not say the particulars of the disease for which the Doctor treats him and Ext.B7 is a medical bill issued by the Medi Lab Research Centre, which shows that he has purchased medicines for `1,342/-.

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As rightly held by the court below these evidence are not sufficient to arrive at a conclusion that the petitioner is physically disabled or mentally unsound to do work. Even if, Ext.B1 is taken at its face value, it cannot be taken to mean that he is suffering from any kind of mental disorder, which disabled or incapacitated him to do work.

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More importantly, as rightly held by the court below, it is pertinent to note that the petitioner stayed away from entering the witness box to prove his bona fides as regards the plea of no means. It could be reasonably presumed that he is

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C.R.P. No. 199 of 2016

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-: 8 :-

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afraid of such a situation, whereby the respondent would get an opportunity to cross-examine him and to elicit concealed means and the properties, which are in his possession.

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In the above analysis, this Court also

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finds that the respondent has successfully discharged the initial burden, narrating the means of the petitioner in evidence. But, the petitioner miserably failed to rebut the evidence adduced by the respondent. There is no illegality or impropriety in the impugned order and this Civil Revision Petition is only to be dismissed.

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This Civil Revision Petition is dismissed

accordingly.

Sd/- K. HARILAL,

NaN/DST

//True copy//

P.A. To Judge

K.T.Jaffar v. M/S.Essen Trading Company

Case brief

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K.T.Jaffar v. M/S.Essen Trading Company

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