Back
HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
M/s. LA'Builde Associates
Versus
Bipinchandra Narandas Dalal
Chamber Summons No. 1170 of 2009 in Execution Application (L) No. 463 of 2009 In Award No. 8 of 2004
Decided on: 06-09-2013
On an application of decree holder under Order XXI, Rule 41, Court can direct judgment-de btor or any other person to be orally examined to ascertain property owned by judgment-debtor. - In the present case, the directions issued under Order XXI, Rule 41 are not empty formalities but are issued with specific purpose of collecting true and correct information about the affairs and status of the properties and assets of the judgment-debtor which can be sold and realized for the purpose of executing the decree obtained by the judgment-creditor.
Under Order XXI, Rule 41, not only the Court is empowered to know the true and correct details of assets and properties and debts of the judgment-debtor but in case of any dispute about the authenticity of the averments and contents of the documents annexed to such affidavits and documents to order oral examination of such deponent including cross-examination. Court is empowered to make further enquiry into the authenticity of the averments and contents of the documents under Order XXI, Rule 41 and the scope of enquiry is not limited.
If the Court is satisfied prima facie that the averments in the disclosure affidavit does not disclose true and correct affairs and the correct position of the assets/properties and debts of the judgment-debtor, further enquiry into the correctness of such affidavit and contents of documents is permissible under Order XXI, Rule 41.
On plain reading of Order XXI, Rule 41 of the Code of Civil Procedure, it is clear that the judgment-debtor or any other person on an application of the Decree holder may be ordered by Court to be orally examined to ascertain whether any debts are owing to the Judgment-debtor and whether said Judgment Debor has any property or means for satisfy the decree and the Court is empowered to. even direct such Judgment-debtor or other person for production of any books or documents.
The purpose of such oral examination is to ascertain the property owned by the judgment-debtor so that the same may be sold for recovery of decretal amount.
Civil Procedure Code, 1908 - Order XXI, Rule 41 - Attachment of property.
Guardioan and Manager filing affidavit on behalf of judgment- debtor, is answerable to Court and is liable to be subjected to cross-examination. - The guardian and Manager appointed by High Court in Guardianship petition, is liable to submit accounts of lunatic only in such guardianship proceedings and action if any against such guardian and Manger can be taken only in those proceedings. The guardian and Manager not only represents the judgment-debtor but has filed affidavit on his behalf and is answerable to this Court in this proceedings and is liable to be subjected to cross-examination.
Civil Procedure Code, 1908 - Order XXI, Rule 41 - Attachment of property.
Merely because judgment-debtor not filed affidavit in rejoinder, it cannot be concluded that what is stated by judgment-debtor is true. - Merely because affidavit in rejoinder is not filed by the judgment creditor to the affidavits filed by the judgment-debtor, High Court cannot come to the conclusion that what is stated in the affidavit filed in response to the order passed by the Court, under Order XXI, Rule 41, is deemed to have been proved and no further enquiry about the correctness thereof would be necessary. The purpose of Order XXI, Rule 41 of the Code of Civil Procedure is to ascertain property if any owned by the judgment-debtor so that the same may be sold for recovery of the decretal amount. It is held that no prejudice would be caused to the judgment-debtor if he is cross-ex amined provided he has nothing to conceal from the Court and if the judgment-debtor actually does not have any property, he should have nothing to fear from his cross-examination. The examination within the purview of Order XXI, Rule 41 of the Code of Civil Procedure, includes cross-examination because the purpose is to ascertain whether the judgment-debtor has any property so that the money decree can be satisfied. It is held that if cross-examination is not permitted the judgment-debtor may these state that he doeS not own any property and ii the judgment-debtor is cross-examined, there would be nothing illegal therein.
Civil Procedure Code, 1908 - Order XXI, Rule 41 - Examination of judgment-debtor.
Examination of judgment-debtor under Order XXI, Rule 41 of Code includes cross-examinatio n of judgment-debtor.
1. By this Chamber Summons, the applicants (judgment creditors) seeks directions against Mr. Anil Shantilal Parekh, guardian and Manager of the respondent appointed by this court to disclose on oath by filing an affidavit as to whether any debts are owing to the respondent and whether respondent had right, title and/or interest on 22nd April, 2004 or on that date any other property and/or means for satisfying the dues under the award dated 22nd April, 2004 passed by Shri. S.R.Shah, sole arbitrator including the respondent's assets, moveables and immoveable properties, bank accounts, jewellary, shares, securities, other investments, present source of income, details of the respondent's business/employment and other profitable/gainful activities carried out by the respondent and also to disclose all other details required to be disclosed by Form No. 16A of Appendix “E” to the Code of Civil Procedure, 1908 to facilitate the execution of the award dated 22nd April, 2004 by the applicant. Applicants also seek a direction against said Mr. Anil Shantilal Parekh to produce before this court and furnish to the applicants true copies of all the books of account, statement, income tax returns for last ten years of the respondent to enable the applicants to use those information for executing the award dated 22nd April, 2004 and also seek an order of arrest and detention of Mr.Anil Shantilal Parekh in civil prison for three months or for such period this court deem fit.
2. Some of the relevant facts are as under:
(a) By an agreement was executed between the applicants and the respondent on 15th May, 1981, the respondent agreed to sell to the applicants piece of land with tenant thereon situated at Village Anik Chamber, Mumbai described in paragraph (4) of the affidavit in support. Applicants paid Rs.3,20,000/- to the respondent as and by way of earnest money. Dispute arose between the parties and was referred to arbitration.
(b) By an order dated 13th February, 1987 in Lunacy Petition No. 4 of 1986, this court appointed Mr. Anil Shantilal Parekh as guardian and Manager of the person and property of the respondent. On 22nd April, 2004, Shri. S.R. Shah, Former Judge of City Civil Court, Bombay who was appointed as sole arbitrator made an award holding that the applicants could not be granted claim for the specific performance but in lieu of specific performance directed the respondent to pay to the applicants a sum of Rs.2,50,00,000/- as damages with interest at the rate of 6% per annum on the said amount from the date of award till payment.
(c) Arbitration petition filed under section 34 of the Arbitration and Conciliation Act, 1996 by the respondent for setting aside the said award came to be rejected. It is the case of the applicants that the application for restoration of the said petition is pending, however, there is no stay of execution of the award. Respondent filed a Miscellaneous Petition (2 of 1997) in this court which was disposed of by the consent order dated 3rd October, 1997 whereby the said property which was agreed to be sold to the applicants by the respondent was directed to be sold to one Origin Builders for Rs.80,00,000/-subject to the applicants' right.
(d) On 17th July, 2009, the applicants filed this Chamber Summons for various reliefs. On 8th February, 2011, applicants moved an application for leave to execute decree. By an order passed by this court, notice filed under Order 21 Rule 22 is made absolute after hearing the respondent. Respondent did not file any appeal against the said order. By an order dated 6th May, 2011, respondent undertook to file his reply to the Chamber Summons within two weeks from the date of the said order. This Court granted ad-interim reliefs in terms of prayer clauses (a) and (b) of the said Chamber Summons. Prayers (a) and (b) of the Chamber Summons are extracted as under:-
“(a) That this Hon'ble Court be pleased to direct Shri. Anil Shantilal Parekh, the guardian and Manager o
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
