$~36. * IN THE HIGH COURT OF DELHI AT NEW DELHI. versus M/S WESTERN EXPRESS (SERVICES) CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI

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1 $~36. * IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: EX.P. 252/2006 HINDUSTAN PAPER CORPORATION LIMITED... Decree Holder Through: versus M/S WESTERN EXPRESS (SERVICES) Through: Mr. Nikhilesh Krishna, Advocate... Judgement Debtor Mr. Dalpreet Singh, Advocate with Mr. Krishan Kumar Nareda, proprietor of the Judgment Debtor in person. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. (OPEN COURT) Ex.Appln. (OS) No. 1123/ This application has been preferred by the decree holder under Order XXI Rules 30, 41(3) read with Sections 51, 55, 58 and 151 CPC. The decree holder, by this application, seeks that the judgment debtor K.K.Nareda, be sent to civil imprisonment. 2. The background facts are that the decree holder filed a civil suit being CS(OS) No. 1938/2001 for recovery of Rs. 28,87,490.57/-. The plaintiff Ex.P.No. 252/2006 Page 1 of 24

2 pleaded that the defendant was appointed as their clearing and forwarding agent vide letter dated The claim arose on account of the defendant not delivering the goods to the plaintiff. The defendant did not appear to contest the suit despite service of summons and was proceeded exparte vide order dated The plaintiff led ex parte evidence of Mr. Dinkar Prakash Bhardwaj, Senior Accountant of the plaintiff at its Delhi office. After giving adjustment to the amount of bank guarantee and other permissible amounts, the amount recoverable from the defendant was stated to be Rs. 15,79,302.57/-. Besides the said amount, the defendant was also found liable to pay interest of Rs. 13,08,188/-. Resultantly, the court passed a decree for Rs. 28,87,490.57/- against the defendant with costs and pendente lite and future 15 % per annum till realization. 3. The decree holder instituted the present execution petition in November, Despite service, the judgment debtor did not appear and, consequently, bailable warrants were issued on Despite service of bailable warrants, the judgment debtor did not appear on on the ground that he was held up at Chittorgarh, Rajasthan. Ultimately, the judgment debtor appeared only on He was then directed to file a list of his movable and immovable assets standing in his name. 4. On , the judgment debtor made a disclosure of his three bank accounts and about his owning an Indica Car of 2005 model which was stated to be hypothecated with HDFC Bank, Rajouri Garden, New Delhi. The banker was directed not to release the papers of the Car without intimation to the Court. The judgment debtor informed that he had joined services of Innovative B2B Logistics Solutions Ltd., as G.M. (Domestic Ex.P.No. 252/2006 Page 2 of 24

3 Business Development) and is drawing a salary of Rs. 48,000/- per month. He stated that he would deposit in this Court 33% of his salary on the 10 th of every month. He stated that he would make the deposit without prejudice to his contentions and right to seek setting aside of ex parte decree. I may observe that neither the said 33% of the salary was ever deposited by the judgment debtor, nor did he seek the setting aside of the ex parte decree against him. He also did not prefer a Regular First Appeal to assail the exparte judgment and decree. 5. The judgment debtor did not appear when the matter was taken up on and, consequently, once again bailable warrants were issued for his production. However, the judgment debtor did not appear on the next date i.e. on His salary was attached by issuing notice to his employer B2B Logistics Solutions Ltd.. Once again, bailable warrants were issued for his production. 6. He appeared on the next date, i.e., On that date, he gave his current residential address which was stated to be on monthly rent of Rs. 11,000/-. He stated that the premises was taken on rent since September, 2008 and the rent was being paid in cash. He was asked to produce before the Court the rent agreement and rent receipts within a week. 7. The judgment debtor did not, once again, appear before the Court on and, consequently, bailable warrants were issued for his production. Warrants of attachment in respect of the Indica Car owned by the judgment debtor was also issued, returnable on On , the judgment debtor appeared in response to the warrants issued Ex.P.No. 252/2006 Page 3 of 24

4 against him. It was again informed to the Court that the Car was hypothecated to the Bank and the loan is outstanding. The judgment debtor stated that some settlement has been worked out with the decree holder. The same statement was reiterated by the judgment debtor on the next date, i.e., on On , once again, the judgment debtor was not present and bailable warrants were issued for his production. On this date, the Court also took note of the fact that earlier order requiring the judgment debtor to file the rent agreement and the rent receipts on record had not been complied with. 9. Despite service of bailable warrants, the judgment debtor did not appear on Consequently, the Court issued non-bailable warrants for his production, returnable on On , the judgment debtor appeared. The Court took note of the fact that the judgment debtor had not filed his affidavit in respect of his moveable assets, including, the personal jewellery. He had also not complied with the order requiring him to deposit 33% of his salary every month. The judgment debtor was again asked to file an affidavit of his assets and personal jewellery and also the statement of bank account in which his salary received from M/s Innovative B2B Logistics Solutions Ltd. was being deposited. He was asked to file a statement of account for the period January, 2005 to February, 2010, in relation to his two bank accounts maintained by Corporation Bank, Pitampura Branch and IDBI Bank. 10. On the next date, i.e., , the Court observed that the Ex.P.No. 252/2006 Page 4 of 24

5 affidavit filed by the judgment debtor did not make out a disclosure with regard to his personal jewellery. He informed to the Court that he had obtained loans from State Bank of India, Parliament Street Branch, Citibank, Mathura Road, ABN Amro Bank, Barakhamba Road. The judgment debtor was then called upon to file an affidavit making the following disclosures: (i) whether he has any personal jewellery in his possession; (ii) Whether he owns in his name or in the name of his family members any movable or immovable property which have been funded by him; (iii) the account numbers of State Bank of India, Parliament Street, New Delhi branch, Citibank, Mathura Road, New Delhi branch and ABN Amro Bank, Barakhamba Road, New Delhi branch (collectively referred as, banks ). The affidavit shall be accompanied with statement of the loan accounts for the period 2007 till from the aforementioned banks. The affidavit shall also, in particular, disclose as to whether any security in the form of movable or immovable property has been given to the aforementioned banks for obtaining the said loans. (iv) his income, if any, for the period assessment year till the current assessment year. The income tax returns for the said period shall accompany the affidavit. (v) the rent paid by him for the premises situate at KP-231, Maurya Enclave, Pitampura, Delhi. The copy of the lease deed and rent receipts shall be filed along with the affidavit. 11. On , the Court after examining the statement of account of Union Bank of India, Connaught Place, New Delhi, filed by the judgment debtor observed that, prima facie, the disclosures made by the judgment debtor with regard to his salary is false. The relevant part of the order dated Ex.P.No. 252/2006 Page 5 of 24

6 reads as follows: A perusal of the statement of account of Union Bank of India, Connaught Place, New Delhi (UBI) seems to suggest that the JD has been in receipt of salary of more than Rs. 48,000/- p.m. This is clear on perusal of credit entries in the bank statement of the JD maintained with UBI. The credit entry for , seems to indicate that JD has received on account of salary a sum of Rs. 76,329/-. This entry is followed by several such like entries including those made in November, 2008, December, 2008 and February These entries do suggest that the JD had been getting a salary of more than Rs. 48,000/-. As a matter of fact, a salary slip of February, 2009 filed by JD shows that towards salary the JD has received, from the aforementioned employer, a sum of Rs. 94,776/-. Apart from the fact that the amount received towards salary was falsely stated before the Court, there has been a violation of the undertaking given to the court that the 33% of the salary will be deposited in the court. 12. The Court, therefore, issued notice to the judgment debtor as to why proceedings for contempt ought not to be taken against him. On , the Court upon taking note of the affidavit dated filed by the judgment debtor, again observed that there had been a violation of the order dated The court observed that the judgment debtor had not disclosed that, over and above the salary of Rs. 47,036/-, he had been receiving substantial perks. The Court also observed that non-compliance of the order requiring the judgment debtor to deposit 33% of his salary tantamounted contempt of court. At that stage, the judgment debtor stated that he be given time till , to deposit the decretal amount. The Court did not grant time till , however, as a last and final Ex.P.No. 252/2006 Page 6 of 24

7 opportunity, eight weeks time was granted to the judgment debtor to pay the decretal amount. 13. It appears that the judgment debtor made some proposal for settlement and the matter was adjourned on a few dates thereafter. On , once again, the judgment debtor was not present. He was directed to remain present in court on the next date. On , once again, the judgment debtor was not present and he was once again directed to remain present in court. Only on , the judgment debtor appeared with his counsel and the counsel stated that he shall file his objections within four weeks. 14. On , once again, the judgment debtor was not present and the Court after perusing the order-sheets, observed that the judgment debtor, playing ducks and drakes with the Court. Consequently, bailable warrants were issued for his production. The judgment debtor appeared in response to the warrants on He was, once again, called upon to file an affidavit disclosing his income, assets and sources of income. Copies of his bank accounts for the last three years were also required to be placed on record. He was also required to disclose his present place of employment and also to disclose how the amount of rent was being paid by him. He was called upon to disclose whether he is using any credit card. 15. Yet again, the judgment debtor defaulted in appearing on the next date i.e Consequently, once again, bailable warrants were issued for his production. One last opportunity was granted to file the affidavit in terms of the order dated subject to payment of costs of Rs. 10,000/- to the decree-holder. Ex.P.No. 252/2006 Page 7 of 24

8 16. On , the judgment debtor moved E.A.573/2013. In this application, the judgment debtor claimed that no amount was payable by him under the decree. He claimed that a fraud has been played upon him by the plaintiff/decree-holder. He claimed that in the balance-sheet of the decree holder as on , an amount of Rs /- was payable to the judgment debtor by the decree holder, as he was shown as one of the sundry creditors of the decree-holder. application and dismissed the same by observing: This Court considered the said In effect, what the judgment debtor is seeking to do is to go behind the decree. This submission ought to have been made at the stage when the suit was being contested. I am, therefore, not inclined to even issue notice in the application as I see no merit in the same. Dismissed. 17. The judgment debtor filed the affidavit in terms of the order dated The matter was adjourned to On the said date, once again, the judgment debtor was not present. The Court observed that despite the execution petition has been hanging fire since 2006, not a penny has been paid by the judgment debtor to the decree holder under the decree. Since the judgment debtor had not strictly complied with the order dated by making a complete disclosure, and, he was also not present, non-bailable warrants were issued for his production for On , the judgment debtor appeared and undertook that he shall appear on every date of hearing. Consequently, the non-bailable warrants were discharged. He sought two weeks time to approach the decree-holder to settle/make payment. Ex.P.No. 252/2006 Page 8 of 24

9 19. On , the judgment debtor stated that the Indica Car bearing registration No. DL4CU6328 still belongs to him and is in his custody, and that the said Car is now free from any loan. He stated that he had offered the said Car to the decree-holder, in satisfaction of the decree but the decree holder has not taken the same. On this, statement of counsel for the decree holder was recorded that the said car being of value less than Rs. One lakh, the decree holder is not interested. At this stage itself, I may observe that the judgment debtor has sought to make capital out of this statement of the decree holder to subsequently dispose of the car on his own, without the permission of the Court. However, that statement of the counsel for the decree holder has to be read in the context of the fact that the judgment debtor offered the said Car to the decree holder in satisfaction of the decree, which was for a much larger amount. Obviously, the decree holder could not be expected to accept the said offer. That statement of the counsel for the decree holder certainly could not be taken to mean that the judgment debtor could unilaterally and quietly dispose of the vehicle on his own. 20. On , this Court attached the following accounts and properties of the judgment debtor: (a) A/c No in Corporation Bank, Vardhaman Charve Plaza, Plot No. 22, K.P.Block, Community Centre, Pitampura, Delhi. (b) A/c NO in IDBI Bank, Mahipalpur, New Delhi. (c) A/c NO in Union Bank of India, 14/15-F, Connaught Place, New Delhi. Ex.P.No. 252/2006 Page 9 of 24

10 (d) A/c No in Union Bank of India FP Block, Maurya Enclave, Pitampura, Delhi (e) One Indica Car bearing REgn. No. DL-4CU (f) All the moveable assets, i.e. Refrigerator, Sofa Sets, Television, Music System, Furnitures, All electronic, Dining Sets & Utensils, etc. lying at KP-231, Maurya Enclave, Pitampura, Delhi The Bailiff was directed to sell the moveable assets, including, the Car in question after attaching the same and deposit the sale proceeds with the Court. The judgment debtor was also directed to disclose his further assets, including, LIC policies and details of his current employment by filing an affidavit. However, the Process Server reported that the warrants of attachment could not be executed as the premises was found locked on , the date when he had gone to execute the warrants. This aspect was noticed in the order dated On , the judgment debtor stated that there is a possibility of settlement with the decree holder which was denied by the decree holder. Warrants of attachment were issued in respect of moveable assets and Car. The judgment debtor stated that on the next date, he shall handover the keys of the Indica Car bearing registration No. DL4CU6382. He stated that the aforesaid Car is parked at his residence. Consequently, the Court directed him to handover the Car and its keys directly to the decree holder within one week against receipt. The judgment debtor also stated that he has no objection to his moveable assets being attached. The decree holder, however, stated that the judgment debtor was evading attachment. Consequently, fresh warrants of attachment/sale were issued in respect of Ex.P.No. 252/2006 Page 10 of 24

11 moveable assets of the judgment debtor. The Bailiff was permitted to take police aid for breaking open of locks in case the premises if found locked or resistance is offered. The Court also directed the judgment debtor to file an affidavit making detailed disclosures of his assets, income, liabilities, expenditure and general information regarding standard of living and life style etc. 23. It appears that the Bailiff was able to recover two cheques of Rs. 40,000/- and Rs. 60,000/- issued by the son of the judgment debtor. The son of the judgment debtor then moved E.A. No. 974/2015 seeking a restraint against the presentation of the said cheques which were claimed to have been obtained under threat of humiliation and harassment. The Court after considering the submissions rejected the application of the judgment debtor s son. Consequently, the decree holder was able to receive a fraction of the decretal amount of Rs. One lakh only, after pursuing the present execution petition for about 9 years. 24. On , the judgment debtor again stated that he will handover the keys of the Indica Car aforesaid to the decree holder. The Court directed him to deliver the possession of the Car with keys within one week against receipt. Pertinently, on the same day, the decree holder disclosed that the said Car had, in fact, been sold by the judgment debtor and he had pocketed the sale proceeds. This was done on the same day on which warrants of attachment had been issued in respect of the moveable assets, returnable on Only then, the judgment debtor admitted that he had sold the Car in question on after the passing of the order dated He had no explanation to offer for reneging from his Ex.P.No. 252/2006 Page 11 of 24

12 statement made on The decree holder was then granted liberty to file an application to seek civil imprisonment of the judgment debtor. In consequence of the order dated , the decree holder has moved the present application. 25. The judgment debtor was directed to file an affidavit enclosing therewith his income tax, wealth tax, property tax and VAT returns with effect from for which directions have been issued earlier as well on On issuance of notice, the judgment debtor has filed his reply to this application. 27. The submission of learned counsel for the judgment debtor is that the decree in question has been obtained by the decree holder by perpetuating a fraud. He submits that the decree holder did not disclose that as on , the decree holder owed an amount of Rs. 41, to the judgment debtor, rather than the judgment debtor being liable towards the decree holder for any amount. In this regard, the judgment debtor has placed reliance on two pages purporting to contain some accounts of the decree holder. I may observe that these two pages had been filed as Annexure B along with EA 573/2013, which has already been dismissed. In relation to the said documents, averments made in para 8 of the said application reads as follows: Even, as per the schedule of claims recoverable, prepared as on 31 March 2005 and the balance sheet of the decree holder company, dated 31 March 2005, the judgment debtor has been Ex.P.No. 252/2006 Page 12 of 24

13 shown as a creditor, who is shown to have credit balance of Rs The submission of learned counsel for the judgment debtor is that the decree holder was well aware of the fact that Rs was recoverable by the judgment debtor/defendant at the time of filing of the suit. Yet the decree holder/plaintiff filed the suit for recovery on a false premise. He submits that the decree holder-plaintiff was obliged to make a complete disclosure to the Court, even if the defendant/judgment debtor did not contest the suit and allowed the proceedings to go ex parte against him. He submits that fraud unravels all, and the decree based on a fraud can be set aside even in the present execution proceedings. In support of his submission, learned counsel for the judgment debtor has placed reliance on the following decision; (a) S.P.Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1 (b) United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. (2000) 3 SCC 581 (c) Ram Chandra Singh Vs. Savitri Devi and Ors. (2003) 8 SCC 319; and (d) A.V.Papayya Sastry & Ors. Vs. Government of A.P. & Ors. (2007) 4 SCC 221 Ex.P.No. 252/2006 Page 13 of 24

14 29. Learned counsel for the decree holder has submitted that the submission of learned counsel for the judgment debtor that fraud had been played upon the Court as well as the judgment debtor/ defendant by the plaintiff/ decree holder, is factually not correct. He has referred to the pleadings made in the plaint. In paragraph 13 of the plaint, the plaintiff had made the following averments: 13 That a sum of Rs.48,70,000/- was paid to the defendant by the plaintiff. At the time of expiry of the agreement of the defendant after adjusting the abovesaid sum of Rs.48,70,000 and after adjusting amount against the bank gurantee of Rs.5,57,886/- (principal + interest) and after adjusting the tax deducted at source and also after adjusting the amount of Rs.16,88, as mentioned in para 9 of the present plaint a sum of Rs.41, was payable to the defendant by the plaintiff. After adjusting the abovesaid amount of Rs. 41, from the amount claimable by the plaintiff from the defendant as mentioned in paras 8 and 10 of the present plaint a sum of Rs.15,79, excluding interest was recoverable from the defendant by the plaintiff at the time of expiry of the abovesaid agreement. Summary of accounts of the defendant with the plaintiff is filed herewith as Annexure-A. It is stated that defendant is also liable to pay to the plaintiff interest on the abovesaid 28% per annum. 30. He submits that the perusal of the aforesaid paragraph would show that the plaintiff had granted adjustment in respect of several amounts due to the defendant, including the amount of Rs.41,312.43/-, which the judgment debtor claims not to have been disclosed by the plaintiff in its claim. The principal amount of liability of the defendant/ judgment debtor had been worked out at Rs.15,79,302.57, after granting adjustments for all the amounts due to the defendant. In fact, Annexure-A filed along with the Ex.P.No. 252/2006 Page 14 of 24

15 plaint elaborately sets out the amounts due from the plaintiff to the defendant, and after adjustment of the said amount, the balance amount recoverable by the plaintiff, of Rs.15,79, as the principal amount was worked out. Annexure-A to the plaint reads as follows: SUMMARY OF A/C OF M/S WEESTERN EXPRESS (S) A. Total bill passed for Rs. 58,24, Less - Recovery against shortage shown in CA bill without any shortage certificate Rs.14,82, Rs. 2,05, ,88, ,36, Less - Tax deducted at source against CA bills 1,07, ,29, Add - Local cartage bills 1,26, Less - Add - Less 41,56, Tax deducted at source against cartage bills 2, ,53, Amt. of cash deposit with HPC Ltd. by M/s W.E.(S) 2,00, Amt of encashment of Teerm deposit (Principal + Int.) DD NO.2288/99/ (403390) 5,57, ,11, Paid by HPC against CA bills also confirmed by M/s W.E.(S) 48,70, Payable Amt. 41, Ex.P.No. 252/2006 Page 15 of 24

16 M/S Western Express (Service) summarized outstanding position 1. Shortage backed by joint survey report on which the No. & dt. are not mentioned. Although insurance claims were lodged with insurance co. 4,19, Less Claim settled by insurance co. 4,19, Rs. NIL 2. Material against RR- No. NPM which was not delivered by M/s W.E.(S) 14,98, (A) Valuation as per JSR/SR of damaged material although JSR/SR are incomplete for claim but claims were lodged Rs.70, Less Claim settled by insurance co (B) Notional value of damaged paper on the basis of 20% average from similar damage 85, ,20, Less Amt. payable against admitted bills after adjustment of advance paid and adjustment of security deposit 41, NET AMOUNT RECOVERABLE 15,79, Learned counsel for the decree holder also submits that a mere plea of fraud is not sufficient, as it is necessary to plead and prove the same. In this regard, he places reliance on Gayatri Devi & Others Vs. Shashi Pal Singh, (2005) 5 SCC From the aforesaid facts, it is clear that there is absolutely no merit in the plea of the judgment debtor with regard to the alleged fraud claimed to have been played by the plaintiff while filing and pursuing the suit. Since Ex.P.No. 252/2006 Page 16 of 24

17 the factual premises on which the said suit is based, does not exist, there is no basis in dealing with any of the decisions relied upon by the judgment debtor. There was no concealment of any relevant and material fact by the plaintiff, including the fact that Rs.41, was payable by the plaintiff to the defendant. However, that was not the full and complete story. The plaintiff had set out the amount due to it, after granting adjustment of all the amounts due to the defendant. 33. The submission of learned counsel for the judgment debtor that, had any amount been due to the decree holder/ plaintiff, the judgment debtor s name would have been shown as a sundry debtor in respect of Rs.41,312.43, has no merit. As noticed above, the same account also shows the much larger amount of Rs.15,79, was outstanding from the judgment debtor/ defendant. All these aspects were open to the defendant/ judgment debtor to place before the Court and contest the suit on merits. However, the judgment debtor consciously allowed the proceedings in the suit to go ex-parte. Pertinently, he did not prefer an application under Order IX Rule 13 CPC, or even a Regular First Appeal to assail the judgment passed in the suit. The plea with regard to the alleged fraud is, even otherwise, not open to be urged as the earlier attempt to raise the said plea was turned down by this Court vide order dated while dealing with E.A.(OS) No.573/2013, which has been noticed hereinabove. This order was not assailed by the judgment debtor. 34. I have consciously set out the proceedings which had taken place in the present execution proceedings in the last about 10 years. The aforesaid proceedings demonstrate that the judgment debtor had to be issued Bailable Ex.P.No. 252/2006 Page 17 of 24

18 Warrants for his production on 8 occasions and Non-Bailable Warrants two times. He was also issued notice of contempt on account of making a false declaration in his affidavit with regard to his income and not depositing 33% of his salary for satisfaction of the decree. He has not responded to the same. The Court has also returned findings in the order dated that the judgment debtor has not correctly disclosed his income. The judgment debtor, despite his Indica car being attached, proceeded to dispose it of, even after undertaking to deliver the car and the keys to the decree holder on Despite repeated directions, he has not made a disclosure of the rent agreement in respect of the premises he is residing at. The three orders passed by this Court on , and directing him to file affidavits, disclosing his assets and income etc. have remained uncomplied till date. 35. Learned counsel for the decree holder has extracted in the present application the amounts received by the judgment debtor in his one bank account with Union Bank of India, Maurya Enclave, Pitampura Branch between and , i.e. a period of about three years. He has received amounts of Rs.28,16,525/-, which translates to income of about Rs.9,50,000/- per annum. Pertinently, this is the income reflected only in one bank account. As particulars of other bank accounts have not been filed, it is not known if he has other income or not. 36. It is pointed out by learned counsel for the decree holder that the judgment debtor in his affidavit dated has disclosed his monthly expenses to the tune of Rs.14,820/-. Amongst the expenses claimed by the judgment debtor, is salary payment to one staff member of Rs.8,000/- per Ex.P.No. 252/2006 Page 18 of 24

19 month. The judgment debtor had also filed an affidavit dated , wherein he has stated that he is offering consultation services in the transport industry on ad-hoc basis. However, he has not filed his Income Tax Returns for the period after As to what income he has derived by offering consultation, has not been disclosed. 37. I may observe that, on record, there is a photocopy of the lease deed dated entered into between one Sh.K.K. Srivastava and Ms.Meena Devi, w/o Sh.K.K. Nareda the judgment debtor, in respect of the first floor residential property at CP-123, Pitampura, Delhi. The rent disclosed in the said agreement is Rs.21,000/- per month. The judgment debtor on a query by the Court states that his wife Smt. Meena Devi is running her own transportation business. Pertinently, the said business is disclosed to be running from the same premises where the judgment debtor claims to be running his consultation business. He has stated before the Court that his wife Smt. Meena Devi is matriculate. He states that he is helping his wife in the said business. Looking to the entire circumstances, it would not be unreasonable to assume that the judgment debtor has resorted to running the business in the name of his wife. Pertinently, he himself is in the line of the transportation, and is a man of that field. His wife is merely a matriculate. It is not uncommon in our society for businesses being run in the names of spouses and children by the head of the family for taxation and other purposes. 38. The failure of the judgment debtor to disclose the income being derived from his profession and business, despite specific directions contained in the order dated , which was reiterated on Ex.P.No. 252/2006 Page 19 of 24

20 , shows that he is deliberately concealing his professional and business income. 39. From the facts taken note of hereinabove, it is amply clear that the judgment debtor is incorrigible. He has tried every trick in the trade to delay and defeat the execution proceedings. He has also acted with bad faith by, firstly, making false disclosure about his income; secondly, by not disclosing his income after , even though he claims to be running a consultancy business in the field of transportation; thirdly, by disposing of his Indica car unilaterally even though the same stood attached and he had undertaken to deliver the keys of the car as well as the car to the decree holder. It is also clear that he has had the means to satisfy the decree if not in one go, in installments, as he grossed nearly 9 ½ Lakhs Rupees income per annum during At this stage itself, I may observe that the said income is found credited to his one bank account, the statement whereof he had produced. The other accounts maintained by him, which have not been disclosed, have not been taken into account. 40. As noticed above, he is evidently running the transport business in the name of his wife as M/s Auto Global Express (as disclosed by the judgment debtor himself) from the same address where he claims to be running his consultancy business. He admits that he is assisting his wife in the said business. He has not disclosed the income derived in the name of his wife in M/s Auto Global Express. His wife has been shown to be a tenant of a residential premises on a monthly rent of Rs.21,000/-. He himself claims to have monthly expenses to the tune of Rs.15,000/-, including a salary Ex.P.No. 252/2006 Page 20 of 24

21 payment of Rs.8,000/- to one employee. He has not disclosed from where he is deriving the income to meet the said monthly expenses. 41. Section 51 of the CPC provides that the Court may on the application of the decree holder, order execution of the decree, inter alia, by arrest and detention in prison, where arrest and detention is permissible under section 58. The proviso to the said section states that where the decree is for the payment of money which the present case is, execution by detention in prison shall not be ordered unless the judgment debtor has been given an opportunity of showing cause why he should not be committed to prison. In the present case, that opportunity has been afforded to the judgment debtor when notice on the present application was issued to him. He has also filed his reply. The Court can direct civil imprisonment of the judgment debtor for reasons to be recorded in writing which I am presently doing, and the Court is satisfied that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree, inter alia, (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof, and refuses or neglects or has refused or neglected to pay the same. 42. As noticed above, the judgment debtor has concealed his income and assets and has committed several acts of bad faith, as noticed above. He has also had the means to pay the amount of the decree holder, which he has stoutly refused and neglected to pay. Section 58 CPC provides that every Ex.P.No. 252/2006 Page 21 of 24

22 person detained in the civil prison in execution of a decree shall be so detained, where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period not exceeding three months. 43. Order XXI Rule 30 CPC states that every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment debtor, or by the attachment and sale of his property, or by both. In the present case, the judgment debtor has not disclosed his other property which could be attached and sold in execution to realize the decretal amount. 44. Order XXI Rule 41 CPC is also relevant in the facts of the present case. The said rule provides that where a decree is for the payment of money, the decree holder may apply to the court for an order that the judgment debtor discloses his property and means for satisfying the decree. Sub-rule (2) provides that where a decree for the payment of money has remained unsatisfied for a period of thirty days, the court may, on the application of the decree holder, and without prejudice to its power under sub-rule (1), by order require the judgment debtor to make an affidavit stating the particulars of the assets of the judgment debtor. In the present case, orders directing the judgment debtor to disclose on affidavit all his assets and income have been repeatedly been made, but to no avail. As noticed above, the order dated , and have not been complied with. Even the affidavits filed appear to curtail more information, than disclose truly and factually the assets and income of the judgment debtor. Order XXI Rule 41 Sub-rule (3) provides that in case of disobedience of any order made under sub-rule (2), the court may direct that Ex.P.No. 252/2006 Page 22 of 24

23 the person disobeying the order be detained in the civil prison for a term not exceeding three months. 45. In my view, the present is an imminently fit case to direct the civil imprisonment of the judgment debtor, looking to his entire conduct as discussed hereinabove. As noticed above, the execution petition has been pending for over nine years, during which period the petition has been listed dozens of time before the Court. With great difficulty the decree holder has been able to recover only Rs.1 Lakh towards partial satisfaction of the decree. The amount outstanding under the decree, as on date, is over Rs.50 Lakhs. Even though the dictation of this order has proceeded on two dates, the judgment debtor has exhibited stubbornness, and even during the recording of this order he has not come forward to show the colour of his money. 46. Learned counsel for the decree holder has stated that the decree holder shall pay monthly subsistence allowance for the subsistence of the judgment debtor during his civil imprisonment. 47. Looking to the facts & circumstances, the judgment debtor Mr. Krishan Kumar Nareda is directed to be placed in civil imprisonment for a period of three months, or for such shorter period within which the payment of the decretal amount is made to the decree holder in respect whereof warrants are hereby issued. 48. Learned counsel for the decree holder has deposited an amount of Rs.3,000/- with the Court Master towards the subsistence of the judgment debtor. He further states that if the same is found to be falling short of the Ex.P.No. 252/2006 Page 23 of 24

24 schedule fixed by the Government, he shall make up the balance within one week by depositing the same before the appropriate authority. The amount of subsistence allowance deposited with the Court Master shall be delivered to the Police officer who shall take the judgment debtor in custody for being sent to the civil prison. 49. Learned counsel for the judgment debtor states that the judgment debtor is a Diabetic patient. The Jail authorities shall ensure that he is provided medication while he is in imprisonment. He shall be permitted to carry his personal belongings like spectacles. 50. Order dasti to the parties, under signature of the Court Master. 51. List the execution petition on FEBRUARY 12, 2016 Sl/ B.S. Rohella VIPIN SANGHI, J. Ex.P.No. 252/2006 Page 24 of 24