Remanded

The Secretary, Hosdurg Taluk Consumer v. K.K.Vijayakumar and Others

Kerala HC24 Jan 2019Ex.FA/126/2009

Case brief

AI extract

What is this about?

High Court examined Execution First Appeals regarding garnishee proceedings for realization of decree amounts. Court held lower court erred in ordering deposit by garnishee without detailed enquiry on account details and competing attachments. Matter remanded below.

What did the court decide?

Execution First Appeals remanded to lower court for fresh consideration after verifying and enquiring the accounts of respondents in the hands of the garnishee.

The Secretary, Hosdurg Taluk Consumer Vs… — Execution and Attachment | Kerala HC (2019)

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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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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940

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Ex.FA.No. 126 of 2009

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E.A. NO. 35/2009 IN E.P. NO. 7/2009 OS 139/2007 of SUB COURT, HOSDRUG APPELLANT/S:

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THE SECRETARY, HOSDURG TALUK CONSUMER CO-OPERATIVE SOCIETY, LTD.NO.451, .KANHANGAD, HOSDURG VILLAGE, KASARAGOD DISTRICT.

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BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.SAJU.S.A

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RESPONDENT/S:

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1 K.K. VIJAYAKUMAR, REP. BY HIS POWER OF ATTORNEY HOLDER, N. PADMANABHAN, AGED 41 YEARS, S/O. KUNHIRAMAN, RESIDING AT NALAPADAN HOUSE, KIZHAKKUMKARA, AJANUR VILLAGE, HOSDURG TALUK.

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2 PUDUKKAI VAININGAT SREE VAIRAJATHAN KSHETHRA COMMITTEE, REP. BY ITS SECRETARY,, PUDUKAI VILLAGE, KASARAGOD DISTRICT.

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3 V.BALACHANDRAN SECRETARY, PUDUKAI VAININGAT SREE VAIRAJATHAN KSHETRA COMMITTEE,, RESIDING AT PUDUKAI VILLAGE, KASARAGOD DISTRICT.

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4 C.V.KRISHNAN, THREASURER OF -DO-

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ADDL.R5 IMPLEADED:

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5 THE JOINT REGISTRAR OF CO-OPERATIVE SOCITIES, KASARAGOD. (ADDL.R5 IS IMPLEADED AS PER COMMON ORDER DT. 9.4.2013IN EX.F.A NOS. 126/2009, 12/2011 & 13/2011) BY ADV. SRI.SURESH KUMAR KODOTH

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, ALONG WITH Ex.FA. NOS. 12 & 13 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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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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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940

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Ex.FA.No. 12 of 2011

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EA NO. 259/2010 IN EP 25/2009 of SUB COURT, HOSDRUG

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APPELLANT/S:

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THE SECRETARY,HOSDURG TALUK CONSUMER CO-OPERATIVE SOCIETY, LTD.NO.451, HOSDURG, P.O.KANHANGAD.

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BY ADV. SRI.SAJU.S.A

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RESPONDENT/S:

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1 KUNHAMBU KARANAVAR, RESIDING AT KOTTRACHEL THAIKADAPPURAM,, NILESHWAR VILLAGE, HOSDURG TALUK, PIN-671 314.

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2 PUDUKAI VAININGAT SREE VAIRAJATHAN ISWARANTE KSHETRA COMMITTEE, REPRESENTED BY ITS SECRETARY, PUDUKAI VILLAGE, PIN-671 314.

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3 P.BALACHANDRAN

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SECRETARY, PUDUKAI VAININGAT SREE VAIRAJATHAN, ISWARANTE KSHETRA COMMITTEE, RESIDING AT PUDUKAI, VILLAGE, HOSDURG TALUK, PIN-671 314.

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4 C.V.KRISHNAN SO. KANNAN THREASURER, PUDUKAI VAININGAT SREE VAIRAJATHAN, ISWARANTE KSHETRA COMMITTEE, RESIDING AT PUDUKAI, VILLAGE, PIN-671 314.

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ADDL.R5 IMPLEADED:

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5 THE JOINT REGISTRAR OF CO-OPERATIVE SOCITIES, KASARAGOD.

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(ADDL.R5 IS IMPLEADED AS PER COMMON ORDER DT. 9.4.2013IN EX.F.A NOS. 126/2009, 12/2011 & 13/2011) BY ADV. SHRI.JAWAHAR JOSE

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, ALONG WITH Ex.FA.13/2011, Ex.FA.126/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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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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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940

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Ex.FA.No. 13 of 2011

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EA 26/2011 IN E.P. NO.1/2009 of SUB COURT, HOSDRUG APPELLANT/GARNISHEE:

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THE SECRETARY, HOSDURG TALUK CONSUMER CO-OPERATIVE SOCIETY LTD. NO. 451, P.O.KANHANGAD.

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BY ADV. SRI.SAJU.S.A

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RESPONDENT/PETITIONER/DECREE HOLDER AND JUDGMENT DEBTORS:

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1 VIDYADHARAN,

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S/O.LATE K. KUNHI RAMAN NAIR,, RESIDING AT KATTOOR HOUSE,, PANATHUR, PANATHADY VILLAGE,, HOSDURG TALUK, PIN-671 314.

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2 PUDUKKAI VAININGAT SREE VAIRAJATHAN EASWARANTE KSHETRA COMMITTEE, REP. BY ITS SECRETARY,, PUDUKAI VILLAGE, P.O.UPPLIKAI,, HOSDURG TALUK, PIN-671 314.

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3 C.V.KRISHNAN, S/O.KANNAN TREASURER, PUDUKAI VAININGAT SREE VAIRAJATHAN, EASWARANTE KSHETRA COMMITTEE, RESIDING AT PUDUKAI VILLAGE, HOSDURG TALUK,, PIN-671 314.

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4 V.BALACHANDRAN S/O.KRISHNAN, SECRETARY, PUDUKAI VAININGAT, SREE VAIRAJATHAN, EASWARANTE KSHETRA COMMITTEE,, RESIDING AT PUDUKAI VILLAGE, HOSDURG TALUK,, PIN-671 314.

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ADDL.R5 IMPLEADED:

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THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KASARAGOD.

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[ADDL.R5 IMPLEADED AS PER COMMON ORDER DATED 9.4.2013 IN EX.F.A NOS. 126/2009, 12/2011 & 13/2011]

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BY ADVS.

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN (SR.)

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THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, ALONG WITH Ex.FA.12/2011 & Ex.FA.126/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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Annie John,J.

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The appellant in Ex. F.A. No. 126 of 2009 is the garnishee in the proceedings initiated by the first respondent as per E.A.No.35 of 2009 in E.P. No. 7 of 2009 of Sub Court, Hosdurg. In Ex.F.A No. 12 of 2011, the first respondent therein has initiated garnishee proceedings against the appellant as per E.A. No. 259/2010 in E.P. No. 25/2009 in O.S. No. 55/2007 before the Sub Court, Hosdurg for realisation of decree amount of Rs.2,00,000/-. In Ex.F.A No. 13/2011, the first respondent therein has initiated garnishee proceedings as per E.A No. 26 of 2011 in E.P. No. 1 of 2009 in O.S. No. 55 of 2007 and the Sub Court, Hosdurg, as per order dated 22.02.2011, directed the appellant/garnishee to deposit Rs.2,47,110/-.

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Since the issues are common and the parties are same, the appeals were heard together and are being disposed of through a common judgment. For the sake of convenience, Ex. First Appeal No.

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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126 of 2009 is treated as the main case. The facts in the said case were adverted to in detail.

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The appellant is not a party to the suit. The suit was filed by the first respondent against respondents 2 to 4 for realisation of money alleged to be due to him under the kuri transaction conducted by respondents 2 to 4. The suit was decreed. Certain amounts of the second respondent is lying in deposit in the appellant Bank in various accounts. There were more than 400 suits against respondent 2 to 4 in various courts in Hosdurg in respect of the very same kuri transaction. In almost all the suits, amounts lying in deposit with the appellant Bank was attached and in certain cases, amounts were deposited in court on the direction issued by the Court. The first respondent filed E.P to initiate garnishee proceedings against the appellant in respect of an amount of Rs.12,00,000/-. The appellant filed a counter stating that the amount lying in deposit is not sufficient to satisfy the decree debt. Thereupon, the first respondent filed E.A. No. 110 of 2009 under Order XXI Rule 46 of CPC to frame an issue and to try the same. But the court below, without framing the issue and trying the same, allowed the prayer in the EP and directed the appellant to deposit an amount of Rs.12,00,000/-.

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The learned counsel for the appellant contended that the

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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court below erred in passing order on E.A. No. 35 of 2009 when E.A. No. 110 of 2009 was pending for consideration. The court below ought to have noted that there are more than 400 suits, either pending or disposed of, in various courts in Hosdurg relating to the kuri transactions conducted by respondents 2 to 4. He has also contended that respondents 2 to 4 have deposited amounts in various accounts and there are several prior attachments from the very same court in respect of the amounts lying in specific account number. The court below ought to have conducted an enquiry contemplated under Order XXI Rule 46A, B and C of CPC, especially when the first respondent has filed an application in this behalf. He has further contended that the appellant was not given an opportunity to adduce evidence to prove its contentions.

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The first respondent filed a counter affidavit contending that the suit was filed when the defendants/respondents 2 to 4 failed to pay the amount on termination of the chitty. As against an amount of Rs.11,00,000/- already paid by him, Rs.10,00,000/- was sought to be realised. Since respondents 2 to 4 did not appear, an ex parte decree was passed on 08.01.2009. Since the amounts collected from various subscribers of the chitty were deposited with the appellant/garnishee, and in view of the attempt to transfer the said fund, an attachment

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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before judgment was applied for and it was granted attaching an amount of Rs.12,00,000/- from the appellant society as per Ext.R1(c) order of the court dated 06.08.2007. In the execution petition, the amount under attachment lying with the appellant was sought to be deposited to satisfy the decree. It is also understood that various other creditors have also moved the Court for recovery of money due to them. But disregarding the attachment, the first respondent settled payments directly on lesser terms with a condition that amounts will be deposited in fixed deposits with the garnishee.

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The arguments on the side of the first respondent is that the decree amount which is already in the possession of the appellant was attached and therefore, the appellant is liable to deposit that amount in execution proceedings initiated by the first respondent. The first respondent has filed E.A. No. 35 of 2009 under Order XXI Rule 46A seeking a direction against the garnishee for the deposit of the amount totalling to Rs.12,00,000/- in the custody of the garnishee due to the judgment debtor as per the order in I.A No. 918 of 2007 on the original side in the suit. According to the first respondent, notice was issued from the court to the garnishee calling upon him to deposit the attached amount of Rs.12,00,000/- and EP was posted to 02.06.2009 and on receipt of the said notice, garnishee has been making hectic

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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steps to transfer the attached amount to his interested and favourable third persons so as to avoid the execution of the decree passed therein. The Garnishee has also filed a counter contending that the petition is a frivolous one and not sustainable in law and that it has not made any attempt or effort to transfer the attached amount as averred by the 1^st respondent and there is no amount to satisfy the decree. Therefore, the Garnishee prayed for dismissal of the petition. In this connection, I have gone through the order passed by the court below. The relevant portion of the same reads thus:

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“It appears that the garnishee is inventing and making lame excuse to avoid deposit of amount. Attachment in other cases will not entitle the garnishee to hold the amount even against an express order of this Court for deposit. If at all there are other decree holders they can protect their interest by seeking notable distribution, if entitled to. It is not garnishee's concern to protect the interest of other creditors of the judgment debtors. To avoid a technical plea that there was no prayer in E.A.81/09 for deposit I am making a direction in the present E.A for deposit of attached amount.”

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From the above, it could be seen that various accounts maintained by the judgment debtors were the subject matter of attachment in other cases also. The appellant had also taken a contention that in some cases, amounts were paid. As regards the contention that there is no amount to satisfy the decree, the court below observed that despite being served with a statement of accounts

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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and amounts deposited in the said account by the judgment debtor, there was no move by the garnishee till date to verify the accounts and the amount in deposit therein. In this connection, we have gone through the I.A filed in the Execution Petition by the first respondent. The petition did not contain the details of the account from which the amount is to be credited. It is true that the attachment is effected through court and it was accepted by the appellant/garnishee. It is very interesting to note that nowhere the details of the account, especially the account number of the judgment debtor, were mentioned. The attachment was effected with respect to various accounts maintained by respondents 2 to 4. There is no specific order to that effect. Moreover, it was argued by the appellant's counsel that more than 400 cases were decreed against respondents 2 to 4, who have got accounts with the appellant Bank and all those decree holders got attachment of the accounts kept by the respondent 2 to 4. The appellant has paid certain amounts to the decree holders in other decree also. Now the case advanced by the first respondent's counsel is that the amount of the judgment debtor is in the hands of the appellant and it being the garnishee is bound to deposit the amount before court. Now the argument on the side of the appellant's counsel is that there is no amount with them to satisfy the decree at present

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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for the reason that they have made payments on the prior attachment effected on the account. Now the only question to be considered is whether the garnishee is bound to deposit the amount as ordered by the court. The definite case of the appellant is that there is no amount with them to satisfy the decree of first respondent. In fact, specific account of respondents 2 and 4 was not attached. There are enormous number of decree holders who obtained decree against respondents 2 to 4. So how much amount was available with the appellant at the time of attachment made by the first respondent is a crucial question to be considered. If there are several previous attachments, the amount shall be disbursed as per the earlier orders. Since the order of the court below is not specific, it is impossible for the appellant to remit the total amount as ordered by court. These are the factors to be enquired into. The court below has not enquired the above factors in detail and disposed of the matter in a few lines.

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We have gone through the orders and the documents produced on either side. We find that even in the petition and the counter, no details were mentioned except a few lines regarding their contentions and averments. Further the court below has vaguely passed the order without conducting an enquiry on the facts and the arguments advanced by either side. Therefore, we are of the opinion

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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that the matter has to be adjudicated and enquired in detail by the court below. Accordingly, we remand the matter to the court below for fresh consideration and the matter shall be disposed of within two months after verifying and enquiring the accounts of respondents 2 to 4 in the hands of the appellant/garnishee at the time of attachment.

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These Ex.F.As are disposed of as above.

sd/-

JUDGE.

sd/-

ANNIE JOHN, JUDGE.

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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APPENDIX IN EX.F.A No. 126/2009

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PETITIONER'S EXHIBITS:

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ANNEXURE R1(a): TRUE COPY OF THE PLAINT IN OS NO.139 OF 2007 OF THE SUB COURT, HOSDURG.

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ANNEXURE R1(b): TRUE COPY OF THE JUDGMENT IN OS NO.139 OF 2007 OF THE SUB COURT, HOSDURG.

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ANNEXURE R1(c): TRUE COPY OF THE ORDER OF ATTACHMENT.

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ANNEXURE R1(d): TRUE COPY OF THE COUNTER/OBJECTION OF THE GARNISHEE IN EA NO.110/2009.

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ANNEXURE R1(e): TRUE COPY OF THE COUNTER FILED IN EP NO.7/2009.

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ANNEXURE R1(f): TRUE COPY OF THE COUNTER FILED IN EA NO.35/2009.

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ANNEXURE R1(g): TRUE COPY OF THE LIST FURNISHED BY THE PETITIONER THAT WAS PRODUCED BEFORE THE COURT BELOW, ALONG WITH EA NO. 110/2009.

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ANNEXURE R1(h): TRUE COPY OF THE ORDER IN EP NO. 49/2009.

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ANNEXURE R1(i): TRUE COPY OF THE ORDER IN EP NO.58/2009 EVIDENCING PAYMENT.

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ANNEXURE R1(j): TRUE COPY OF THE MEMO FILED BY THE GARNISHEE IN EP NO. 110/2009.

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ANNEXURE R1(k): TRUE COPY OF THE JUDGMENT DATED 31.03.2009 IN W.P.(C) NO. 4937 OF 2009.

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ANNEXURE I: TRUE COPY OF THE STATEMENT SHOWING THE AMOUNT IN DEPOSIT.

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ANNEXURE II: TRUE COPY OF STATEMENT SHOWING THE VARIOUS GARNISHEE ORDERS.

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ANNEXURE III: TRUE COPY OF THE STATEMENT SHOWING THE NUMBER OF GARNISHEE ORDERS PASSED AGAINST THE PETITIONER IN RESPECT OF THE ACCOUNTS OF RESPONDENTS 2 TO 4.

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ANNEXURE R1(l): TRUE COPY OF THE STATEMENT DATED 01.07.2010 ISSUED BY THE MUNSIFF'S COURT, HOSDURG.

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ANNEXURE R1(m): TRUE COPY OF THE STATEMENT ISSUED BY THE INFORMATION

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Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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OFFICER OF THE SUB COURT, HOSDURG.

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ANNEXURE R1(n): TRUE COPY OF THE ATTACHMENT APPLICATION IN RESPECT OF SB NUMBERS 976, 3582, 3583, 5692, 5731, 5801, 978, 981, 982, 1001 AND 1024.

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ANNEXURE R1(o): CERTIFIED COPY OF THE EXECUTION PETITION AND ORDERS IN EP NO.103/2008.

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ANNEXURE R1(p): CERTIFIED COPY OF THE PETITION AND ORDERS IN EP NO.55/2008.

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ANNEXURE R1(q): TRUE COPY OF THE CERTIFIED COPY OF THE EXECUTION PETITION AND ORDERS IN EP NO.53/2008.

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ANNEXURE R1(r): TRUE COPY OF THE CERTIFIED COPY OF THE EXECUTION PETITION AND ORDERS IN EP NO. 95/2008.

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ANNEXURE 1: TRUE COPY OF THE LIST SHOWING THE DETAILS OF ALL PAYMENTS WITH RESPECT TO THE ENTRIES SHOWN AS “NOT REMITTED” IN THE REPORT OF THE LEARNED SUBORDINATE JUDGE.

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RESPONDENT'S EXHIBITS: NIL

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APPENDIX IN EX.F.A No. 12/2011

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PETITIONER'S EXHIBITS:

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ANNEXURE 1: TRUE COPY OF THE LIST SHOWING THE DETAILS OF ALL PAYMENTS WITH RESPECT TO THE ENTRIES SHOWN AS “NOT REMITTED” IN THE REPORT OF THE LEARNED SUBORDINATE JUDGE.

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RESPONDENT'S EXHIBITS: NIL

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APPENDIX IN EX.F.A No. 13/2011

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PETITIONER'S EXHIBITS:

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ANNEXURE 1: TRUE COPY OF THE LIST SHOWING THE DETAILS OF ALL PAYMENTS WITH RESPECT TO THE ENTRIES SHOWN AS “NOT REMITTED” IN THE REPORT OF THE LEARNED SUBORDINATE JUDGE.

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RESPONDENT'S EXHIBITS: NIL

/True Copy/

PS to Judge.

Ex.F.A. Nos. 126/2009, 12 & 13 of 2011

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The Secretary, Hosdurg Taluk Consumer v. K.K.Vijayakumar and Others

Case brief

What is this about?

What did the court decide?

The Secretary, Hosdurg Taluk Consumer v. K.K.Vijayakumar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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