Partly allowed

T.F.George v. Bharathkshemam Company

Kerala HC5 Dec 2016CRP/740/2013

Case brief

AI extract

What is this about?

High Court revised the lower court order granting arrest against a guarantor under Section 115 CPC. It affirmed findings that the debtor possessed sufficient means but granted a six-month extension to pay the decretal amount in instalments. Arrest remains conditional on default.

What did the court decide?

Permited six months to pay decretal amount in six monthly instalments; arrest warrant kept in abeyance pending regular payment, revivable on default.

T.F.George Vs Bharathkshemam Company — Execution and Attachment | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938

¶5

CRP.No. 740 of 2013

¶6

ORDER DTD.25-10-2013 IN EP.366/2010 IN OS.NO.717/07 OF ADDITIONAL SUB COURT-I, THRISSUR

¶7

PETITIONER/JUDGMENT DEBTOR/DEFENDANT:

¶8

T.F.GEORGE,

¶9

S/O. THARAKAN FRANCIS, CHOOLPRAM DESOM, IRINGAPRAM VILLAGE, CHAVAKKAD TALUK.

¶10

BY ADV. SRI.N.J.JOHNSON

¶11

RESPONDENT(S)/PLAINTIFF/DECREE HOLDER:

¶12

1. BHARATHKSHEMAM COMPANY, THRISSUR VILLAGE AND TALUK PIN-680 001.

¶13

2. T.F. PAUL, S/O. THARKAN FRANCIS, MISSION QUARTERS DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, NOW RESIDING AT C/O. SUNDHARAN SHANMUGHAN, OPP. ACHANVEETTIL LANE, S.R.M. ROAD, PACHALAM, ERNAKULAM-682 018.

¶14

3. N.O. ELIZABATH,

¶15

W/O. T.F. PAUL, NOW RESIDING AT C/O. SUNDHARAN SHANMUGHAN, OP. ACHANVEETTIL LANE, S.R.M. ROAD, PACHALAM, ERNAKULAM-682 015.

¶16

R1 BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN

¶17

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶18

msv/

¶19

K.RAMAKRISHNAN,

¶20

C.R.P. No.740 of 2013

¶21

---------------------------------------------- Dated this the 5^th day of December, 2016

¶22

ORDER

¶23

The above revision has been filed by the petitioner, challenging the order passed by the court below issuing warrant of arrest against the petitioner under Section 115 of the Code of Civil Procedure.

¶24

It is alleged in the revision petition that the first respondent company is engaged in conduct of kuries and respondents 2 and 3 auctioned the chity conducted by the first respondent and the petitioner was also a surety for that transaction. Due to non payment of the amount, the first respondent filed O.S.17/2007 before the Sub Court, Thrissur for realisation of the amount and the First Additional Sub Court, Thrissur has decreed the suit. Since the amount was not paid, first respondent company filed E.P.366/2010 against the petitioner alone for realisation of the amount by arrest and detention in civil prison on the allegation that, in spite of sufficient means, he has neglected to pay the amount. The revision petitioner entered appearance and filed counter statement stating that he has no means to pay the amount. The officer of he company was examined as PW1 and the petitioner was examined as RW1. After considering the evidence, the court below found that the petitioner is having means to pay the amount and ordered arrest. Aggrieved by the same, the

¶25

C.R.P. No.740 of 2013

¶26

¶27

present revision has been filed.

¶28

Heard Sri.N.J.Johnson, counsel appearing for the revision petitioner and Sri.M.S.Narayanan, counsel representing Sri.N.Subramaniam, counsel appearing for the first respondent and notice to other respondents is dispensed with as they are only the principal debtors and the execution petition has been filed only against the revision petitioner alone.

¶29

The counsel for the revision petitioner submitted that, he want only time for payment of the amount and he wanted eight months time to pay the amount. He had also incidentally submitted that the order passed by the court below is not proper.

¶30

On the other hand, the counsel for the first respondent submitted that, the attempt of the petitioner is only to prolong the matter and the case is of the year 2007 and the execution petition is of the year 2010. But however he had submitted that he has no objection in court granting reasonable time.

¶31

It is an admitted fact that respondents 2 and 3 subscribed a 'kury' with the first respondent company and at the time of releasing the amount along with respondents 2 and 3, petitioner also executed documents as guarantor undertaking to pay the amount in case of default committed by the principal debtors.

¶32

C.R.P. No.740 of 2013

¶33

¶34

It is also not in dispute that O.S.717/2007 was filed against the revision petitioner, respondents 2 and 3 for realisation of the amount and the same was decreed and since the amount was not paid, the first respondent company filed E.P.366/2010 for realisation of the amount by arrest and detention of the revision petitioner. It is true that the revision petitioner had raised the plea of no means. If the judgment debtor raised a plea of no means, the burden is on the decree holder to prove that the judgment debtor has the means to pay the amount and in spite of that, he is willfully evading payment. In order to prove this fact, the officer of the first respondent company was examined as PW1 and he deposed that the judgment debtor is having a residential building having a plinth area of 2,000 squire feet situated in a compound measuring 50 cents. He had also deposed that he is conducting a footwear shop named as Royal Footwear's at Chavakkad and getting a daily income of Rs.25,000/-. He had also submitted that he is having two vehicles worth Rs.3,00,000/-. Though he was cross examined at length, nothing was brought out to discredit on these facts. In order to contradict that evidence, the revision petitioner was examined as RW1 and according to him, he is not having any property in his name and the Royal Foot wears does not belong to him and he is not in possession of any vehicle.

¶35

C.R.P. No.740 of 2013

¶36

¶37

The court below relied on the decision reported in Mathaii M. Vaikeday v. C.K.Antony (2011 SAR (civil) 614) wherein the apex court has held that sufficient means contemplates the ability or capacity of a person in the ordinary course raise money with available lawful means. It was also held that, the financial assistance received by a person from family members can be taken into consideration in order to determine whether he had possessed sufficient means or not. But that was a case decided under Order 33 Rule 1 of the Code of Civil Procedure. But the same principle can be extended in this case also. Section 51 of the Code of Civil Procedure only says that, he has means to pay the debt and in spite of that he is not paying the amount, then it can be deemed to be a willful neglect to pay the amount. It is admitted by RW1 that he is residing in a building having a plinth area of 1,500 squire feet in a 35 cent compound. He did not disclose who is the owner of the property. According to him, he is depending on his elder son who is employed in Madras, he had also admitted that his wife is having a business by name Royal Foot wears and there are two employees in the said shop. So it is clear from this that he is getting income from the business conducted by his wife and he had not produced any document to prove that wife is the owner of the business. Best evidence will be available with him which he could have

¶38

C.R.P. No.740 of 2013

¶39

¶40

produced, which he had not done. So under such circumstances, the court below was perfectly justified in coming to the conclusion that he has got the means to pay the amount and he had willfully not paid the amount in spite of the means available to him and rightly ordered arrest and this court do not find any reason to interfere with the same invoking the revisional jurisdiction.

¶41

As regards the instalment is concerned, the respondent has no objection in granting some reasonable time. The petitioner wants eight months time whereas the respondent submitted that eight months time is on the higher side as the case is of the year 2007 and execution petition is of the year 2010 and no amount was paid so far. But however considering the amount involved and also considering the fact that the revision petitioner is a guarantor who was made to pay the amount payable by the principal debtors, this court feels that six months time can be granted to the revision petitioner to pay the amount.

¶42

So the revision petitioner is granted six months time to pay the amount and he has to pay the amount in six equal monthly instalments, first of which will have to be paid on or before 05.01.2017. Each subsequent instalment will have to be paid on the 5^th of every succeeding month and the last instalment will have to be paid

¶43

C.R.P. No.740 of 2013

¶44

¶45

on or before 05.06.2017. If the revision petitioner commits any default in one of the instalments payable, then court below is at liberty to proceed with the execution against the revision petitioner by arrest and detention as ordered by the lower court by the impugned order. If the petitioner pays the amount regularly without committing any default, then court below is directed to keep in abeyance the execution of the warrant till 05.06.2017. If the petitioner commits any default, then the benefit will not be available to the petitioner and the court below can proceed with the execution of arrest from the date of commission of the default of any one of the instalment payable.

¶46

With the above direction and observation the revision petition is disposed of accordingly.

¶47

Registry is directed to communicate this order to the court below at the earliest.

¶48

Sd/-

¶49

K. RAMAKRISHNAN, JUDGE

¶50

//True Copy//

¶51

P.A. to Judge

¶52

T.F.George v. Bharathkshemam Company

Case brief

What is this about?

What did the court decide?

T.F.George v. Bharathkshemam Company

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Narayanaswamy Vs Mani

B.Sarojam Vs State of Kerala

Muhammed Favas Vs Basheer

P.G.Ajitha Vs C.M.Divakaran

Hariprasad.K Vs Bharath Sanchar Nigam Ltd.

Sandeep Yadav Jadhav Vs Bharath Sanchar Nigam Ltd.