This writ petition challenged an order directing the arrest of a judgment debtor in execution proceedings arising from a bank loan. The High Court held that the evidence proved the debtor had means to pay and dismissed the petition.
The writ petition was dismissed and the interim stay order was vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938
OP(C).No. 2297 of 2016 (O)
E.P.NO. 249/2014 IN A.R.C.NO. 2530/2014 OF SUB COURT, KOTTAYAM
PETITIONER(S)/JUDGMENT DEBTOR :
SHAJI VARKEY, S/O. VARKEY, AGED 55 YEARS, ANDERIL PUTHENPURAYIL HOUSE, NATTAKOM VILLAGE, KOTTAYAM TALUK- 686 013.
BY ADVS. DR.V.N.SANKARJEE
SRI.S.SIDHARDHAN SRI.V.N.MADHUSUDANAN SRI.PRATHAP. S.R.K. SMT.R.UDAYA JYOTHI SMT.M.SUSEELA SMT.MARY JOHN
RESPONDENT(S)/DECREE HOLDER :
TRAVANCORE CEMENTS EMPLOYEES CO-OPERATIVE BANK, NATTAKOM, REPRESENTED BY IT'S SECRETARY, NATTAKOM, KOTTAYAM- 686 013.
BY ADV. SRI.GEORGE MECHERIL
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
OP(C).No. 2297 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS :
EXT. P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P. NO. 249/2014.
EXT. P4 TRUE COPY OF THE ORDER DATED 22.8.2016 JIN E.P. NO. 249/2014 ON THE FILE OF PRINCIPAL SUB COURT, KOTTAYAM IN EXECUTION PETITION.
RESPONDENT(S)' EXHIBITS :
| EXHIBIT R1(A): | TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER ON 27.02.2007. |
|---|---|
| EXHIBIT R1(B): | TRUE COPY OF THE AGREEMENT EXECUTED ON 23.03.2007. |
| EXHIBIT R1(C): | TRUE COPY OF THE ARBITRATION PETITION FILED BEFORE THE ASSISTANT REGISTRAR OF CO-OP. SOCIETIES, KOTTAYAM ON 31.07.2010. |
| EXHIBIT R1(D): | TRUE COPY OF THE AWARD IN A.R.C NO. 2530/2010 DATED 30.12.2010 OF THE ASSISTANT REGISTRAR, KOTTAYAM. |
| EXHIBIT R1(E): | TRUE COPY OF THE OBJECTION FILED ON 08.08.2016 IN E.P.NO. 249/2014. |
//TRUE COPY//
P.A.TO JUDGE.
Msd.
K.RAMAKRISHNAN, J.
=================== O.P.(C ).No.2297 of 2016
=======================
Dated this the 11th day of November, 2016
JUDGMENT
This is an application filed by the petitioner challenging Ext.P4 order passed by the Court below under Article 227 of the
Constitution of India.
O.P.(C).No.2297 of 2016 2
absence. He is entitled to get a gratuity amount of Rs.1,27,000/which was in fact given to the Bank and they have not properly credited to that amount. They received Ext.P1 letter from the Company intimating the disbursement of the gratuity amount. The award was passed ex parte without serving proper notice on the petitioner and without hearing him showing an exorbitant amount of Rs.2,26,601/-. Ext.P2 execution petition was filed seeking recovery of the amount by arrest and detention of the petitioner and the petitioner filed objection to the same evidenced by Ext.P3 stating that he has no means to pay the amount and also sought instalment facility in the alternate. The Secretary of the Bank was examined as PW1 and the petitioner was examined as DW1. After considering the evidence, the court below passed Ext.P4 order holding that he had means to pay the amount, in spite of that he has not paid the same and ordered arrest of the petitioner who is the 1st respondent in the execution proceedings. This order is being challenged by the petitioner by filing this petition.
for the petitioner and Shri. George Mecheril, learned Standing Counsel for the respondent.
O.P.(C).No.2297 of 2016 3
the gratuity amount has not been appropriated at proper time, if it has been appropriated so much amount would not have been due. Further the petitioner has filed AOP179 of 2016 before the Additional District Court, Kollam challenging ex parte award passed impleading the company also for not disbursing the amount in time seeking interest on the gratuity amount. So till that case is over, the execution should not be proceeded with. The learned counsel also argued that the evidence adduced is not sufficient to come to the conclusion that the petitioner has got sufficient means to pay the amount and he had wilfully defaulted the payment of the amount. So according to the learned counsel, the court below was not justified in ordering arrest of the petitioner.
O.P.(C).No.2297 of 2016 4
30.09.2016 an amount of Rs.3,25,627/- is still due.
of the respondent society bank and he availed loan of Rs.1,75,000/- on 23.03.2007 and even as per his pleadings in the petition, he was terminated from service by his employer viz., Travancore Cements for unauthorized absence on 31.07.2008.
According to the petitioner, the gratuity amount if had it been disbursed even at the time of his termination that amount would have been adjusted and so much amount would not have been due.
fault for non disbursement of gratuity amount by the employer. It is seen from Ext.P1 letter itself that the Bank had disbursed the amount in the year 2015, though letter dated was shown as 16.08.2016. The learned counsel for the respondent fairly conceded that amount of Rs.1,21,703/- has been disbursed towards the gratuity due to the petitioner and it was paid to the bank and that has been adjusted. It is after adjustment of the amount that an amount of Rs.3,25,627/- is due.
O.P.(C).No.2297 of 2016 5
respondent has/had sufficient means to pay the amount and in spite of that he had not paid the same. In order to prove that case, the Secretary of the respondent bank was examined as PW1 and for denial evidence, the respondent himself has gone to the witness box and gave evidence of DW1. PW1 stated that petitioner went abroad and earned money after his termination in spite of that he had not paid the amount. DW1 also admitted that he went abroad and worked there but according to him he did not get good employment. But he had not produced any document to show what was the employment he had there and what is the emoluments which he obtained from there. He had not produced his passport to show that he has permanently left that place and come and settled in India. The burden is on him to prove all those aspects. The decree holder has discharged their burden by proving that he went abroad for employment purpose and he employed there. So under such circumstances, it cannot be said that he has/had no means to pay the amount as well. Further, in the counter statement in the alternative he had pleaded for instalment payment. If he prayed for instalment payment that shows that he has got the capacity to raise the amount and pay it in instalment. So under such circumstances, he had pleaded no
O.P.(C).No.2297 of 2016 6
means to pay the instalment only to avoid arrest and that was rightly rejected the same. The pendency of AOP 179 of 2016 is not a ground to stay the proceedings at this stage. If the petitioner is so advised, he can approach the same court where the petition is pending for stay of the execution till the petition is disposed of, it is for that court to consider and pass appropriate order in that application in accordance with law. Under such circumstances, the order passed by the court below does not suffer any illegality or impropriety warranting interference at the hands of this Court under Article 227 of the Constitution of India. So the petition lacks merit and the same is hereby dismissed. The interim order of stay granted is hereby vacated.
Registry is directed to communicated this judgment to the concerned court immediately.
K.RAMAKRISHNAN, JUDGE
SKV
2 issues framed by the court
Whether the High Court should interfere with the lower court's order directing arrest of the judgment debtor under Article 227.
Whether the pendency of a separate case challenging the award warrants staying the execution proceedings.
2 provisions across 2 enactments
SHAJI VARKEY
TRAVANCORE CEMENTS EMPLOYEES CO-OPERATIVE BANK
K.RAMAKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
