Saturday, 4 March 2017

Whether objection to application for garnishee order can be decided without framing issues?

The
application filed by the respondent no.1 is under Order 21 Rule 46
of the Civil Procedure Code for a garnishee order which
contemplates attachment of a debt not in possession of the
judgment debtor. The learned Counsel appearing for the
respondent no.1 pointed out that the order of attachment directing
the petitioners to deposit the rent is a garnishee order in terms of
Order 21 Rule 46A of the Civil Procedure Code. On perusal of the
provisions of Order 21 Rule 46C of the Civil Procedure Code, the
law contemplates that where the garnishee disputes liability, the
Court may order that any issue or question necessary for the
determination of liability shall be tried as if it were an issue in a
suit, and upon the determination of such issue the Court shall make
such order or orders as it deems fit. In such circumstances, taking
note of the stand taken by the petitioners in the reply filed to the
application under Order 21 Rule 46 of the Civil Procedure Code to
the effect that the petitioners are not responsible or liable to pay the
amount claimed by the respondent no.1 as according to them they
are not judgment debtors in the execution proceedings, I find that
the learned Judge was not justified to pass the impugned order
without holding an inquiry as contemplated under Order 21 Rule
46C of the Civil Procedure Code.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.182 OF 2012
M/s. Sparrow Technologies Ltd.,

V/s
Mr. Ravinder P. Kumar,

CORAM : F.M. REIS, J.
DATE : 6th MARCH, 2012
Citation: 2012(4) ALLMR 142

Heard Shri A. Palekar, learned Counsel appearing for the
petitioner and Shri M.P. Singh, learned Counsel appearing for
respondent no.1.
2. At the outset, Shri A. Palekar, learned Counsel appearing for
the petitioner seeks leave to delete the names of respondents no.2
to 4 from the cause title. The respondents no.2 to 4 are deleted at
the risk of the petitioner.
3. Rule. Heard heard forthwith with the consent of the learned
Counsel appearing for the respective parties. The learned Counsel
appearing for respondent no.1 waives service.
4. The above petition challenges the order dated 21/01/2012
passed by the learned Additional District Judge, South Goa at
Margao in Execution Application no.73/2010 whereby an3
application filed by the respondent no.1 to execute the decree for a
specific sum of money came to be allowed and the application filed
by the respondent no.1 under Order 21 Rule 46 of the Civil
Procedure Code was partly allowed directing the attachment and
payment of the amount to the respondent no.1.
5. Shri A. Palekar, the learned Counsel appearing for the
petitioners has assailed the impugned order as according to him
such order could not have been passed without holding an
appropriate inquiry. The learned Counsel has further pointed out
that according to the petitioners, they are not parties to the original
decree passed in favour of the respondent no.1 and, as such, they
are not liable to pay the decreetal amount. The learned Counsel
further pointed out that the learned Judge has taken into
consideration the documents which were produced by the
respondent no.1 at the time of filing of the written arguments and
no opportunity was given to the petitioners to rebut such
documents. The learned Counsel has taken me through the
impugned order and pointed out that the learned Judge has
erroneously come to the conclusion that the petitioners are liable to
pay the decreetal amount without noting the fact that the petitioners
are not in any way directed to pay such amount as per the decree
sought to be executed. Learned Counsel has also taken me through
the order passed by this Court whilst disposing of the Writ Petition
No.860 of 2010 by judgment dated 21/09/2011 and pointed out that
the learned Judge was directed to decide the dispute afresh on all
aspects and pass a reasoned order and in the present case the
learned Judge has not at all given any categorical finding as to in
what manner the petitioners who are not parties in the proceedings
are liable to pay the decreetal amount. The learned Counsel further
pointed out that some documents produced by respondent no.1
have been relied upon by the learned Judge without considering
whether such documents have been duly proved by the respondent
no.1. The learned Counsel, as such, submits that the impugned
order deserves to be quashed and set aside.
6. On the other hand, Shri M.P. Singh, the learned Counsel
appearing for respondent no.1 has supported the impugned order.
The learned Counsel has pointed out that all the documents which
have been produced are proved documents and, as such, the
learned Judge was justified to rely upon such documents for the
purpose of passing the impugned order. Learned Counsel further
pointed out that the learned Judge was entitled to lift the corporate
veil as according to him the judgment debtor and the petitioners are
a group of companies having common share holders, and, as such,
the learned Judge was justified to lift the corporate veil and direct
the payment of the decreetal amount to the petitioners. The learned
Counsel has further pointed out that the proceedings are
unnecessarily being dragged for quite sometime depriving the
respondent no.1 from withdrawing the amount which he is entitled
as per the decree. The learned Counsel, as such, submits that there
is no reason for any interference in the impugned order.
7. I have carefully considered the rival contentions advanced by
the learned Counsel appearing for the respective parties. The
application filed by the respondent no.1 is under Order 21 Rule 46
of the Civil Procedure Code for a garnishee order which
contemplates attachment of a debt not in possession of the
judgment debtor. The learned Counsel appearing for the
respondent no.1 pointed out that the order of attachment directing
the petitioners to deposit the rent is a garnishee order in terms of
Order 21 Rule 46A of the Civil Procedure Code. On perusal of the
provisions of Order 21 Rule 46C of the Civil Procedure Code, the
law contemplates that where the garnishee disputes liability, the
Court may order that any issue or question necessary for the
determination of liability shall be tried as if it were an issue in a
suit, and upon the determination of such issue the Court shall make
such order or orders as it deems fit. In such circumstances, taking
note of the stand taken by the petitioners in the reply filed to the
application under Order 21 Rule 46 of the Civil Procedure Code to
the effect that the petitioners are not responsible or liable to pay the
amount claimed by the respondent no.1 as according to them they
are not judgment debtors in the execution proceedings, I find that
the learned Judge was not justified to pass the impugned order
without holding an inquiry as contemplated under Order 21 Rule
46C of the Civil Procedure Code. Apart from that, it is not in
dispute that the documents produced by the respondents were at the
stage of the written arguments filed by the respondent and though it
is sought to be contended by the learned Counsel for the
respondent that such documents have been proved, nevertheless,
this aspect will also have to be gone into by the learned Judge at
the time of holding an inquiry as contemplated under Order 21
Rule 46C of the Civil Procedure Code. The learned Judge, as such,
was not justified to dispose of the objections of the petitioners
without framing an issue and determining such issue in the manner
as provided in the suit in view of Order 21 Rule 46C of the Civil
Procedure Code. Without going into the merits of the rival
contentions of the learned Counsel with regard to their respective
claims about the liability of the petitioners to pay the amounts as
per the decree, I find it appropriate that the impugned order passed
by the learned Judge is to be quashed and set aside, and the
learned Judge be directed to decide the application under Order 21
Rule 46 of the Civil Procedure Code filed by the respondent no.1
after holding an inquiry in accordance with law. The learned
Counsel for the respondent no.1 submits that fresh orders may be
directed to be passed on all the applications filed by the respondent
against the petitioners herein. Taking note of the request of the
learned Counsel appearing for the respondent no.1, I find it
appropriate that such inquiry is to be disposed of as expeditiously
as possible and in any event preferably on or before 16/06/2012.
8. In view of the above, I pass the following order:
O R D E R
(i) The impugned order dated 21/01/2012 is
quashed and set aside.
(ii) The learned Judge is directed to decide all8
the applications filed by the respondent no.1
against the petitioners after holding due inquiry
and hearing the parties in accordance with law.
(iii) The learned Judge is directed to dispose of
the said proceedings as expeditiously as possible
on or before 16/06/2012.
(iv) The parties are directed to appear before the
learned Judge on 12/03/2012 at 2.30 p.m. and
abide by his further directions.
(v) The amount deposited by the petitioners
shall continue to be in deposit before the learned
Executing Court until the disposal of the above
applications, in accordance with law.
(vi) Rule is disposed of in the above terms.
(vii) The petition stands disposed of accordingly
with no order as to costs.
F.M. REIS, J.
NH/-
Print Page

No comments:

Post a Comment