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TMI Blog2022 (2) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of an inquiry of whether 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 refused or neglects or has refused or neglected to pay amount of the decree the judgment-debtor is hereby directed under O.XXI Rule 40(2) of the Code of Civil Procedure to furnish security in the sum of Rs. 12,89,19,458/- (Rupees Twelve Crores Eighty Nine Lakhs Nineteen thousand Four hundred Fifty Eight) by way of Cash Deposit with the Registry of this court within a period of six weeks from the date of being provided a copy of the order." 3.1. Noticing the relevant facts, the respondent- Ultrabulk A/S, the company operated under the laws of Denmark is the decree holder in whose favour stands judgment and decree dated 9.11.2017 passed by the High Court of Justice Queen's Bench Division, Commercial Court of England and Wales, United Kingdom in the matter of Ultrabulk A/S Vs. Arun Kumar Jagatramka for a sum of USD 5,062,462/-, equivalent to more than rupees 32 crores, in addition to interest. The petitioner had executed personal guarantee in Australia in favour of the respondent- decree-holder for the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means to pay the amount of the decree for substantial part thereof has neglected to pay the same. On such basis the prayer made, "Pending the conclusion of the inquiry of whether the Judgment Debtor 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; this Hon'ble Court be pleased to pass an order under Order XXI, Rule 40 (b) of the CPC directing the Judgment Debtor to furnish security of by way of a cash deposit of Rs. 12,89,19,458 (Rupees Twelve Crores Eighty- Nine lakhs nineteen thousand four hundred and fifty-eight) with the Registry of this Hon'ble Court within a period of 6 weeks." 3.5.1 In paragraph No.3 of the application it was stated that the judgment-debtor claimed to be residing in Kolkata in the address mentioned, however, three post consignments were returned on account of change of address of the decree-holder. It was suggested that the decree-holder had not been residing at Kolkata and his presence was noticed in Gujarat in Gandhinagar on particular day. It was further stated that the judgment-debtor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the business delegations of Government of India going abroad. It was further submitted that the judgment-debtor has been trying to dishonour, transfer, conceal or remove his personal assets. It was contended that in light of the past proclivity, tendency and conduct of the judgment-debtor who has been acting in bad faith in relation to his property, there is a grave and imminent possibility of the judgment-debtor alienating his shareholdings in four Australian companies. 3.6 The judgment-debtor in his reply to the application of decree-holder inter alia contended that the decree held by the decree-holder of the English Court was not enforceable in India. It was claimed that the judgment-debtor was permanent resident of Kolkata and did not change his address and that due to COVID-19 situation he could not travel to Kolkata and was stuck in Ahmedabad. He admitted that he had property at Jamnagar but did not reside in the said property. It was contended that the value of assets to the extent of 23.82 crores has in it the major portion of value consist of investment and shares and that the actual realizable value of the shares is less than the book value. It was claimed by judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. (4) A judgment-debtor released ..... (5) When the Court ....." 4.1 Thus, Sub rule (2) of Rule 40 provides that pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required. 5. The court considered the facts of the case, attendant aspects and the submissions raised by both the sides. 5.1 The executing court in passing the impugned order inter alia took note of the following aspects pleaded by decree-holder in paragraph No.17 of the order. 5.2 With regard to the aspect of the judgment-debtor owning the shares of the Australian companies, referring to the affidavit dated 12.2.2020 of the judgment-debtor, it was noted that book value of the shares in the Wollongong Coal Limited, Goldric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge of the orders of the court the judgment-debtor has not obeyed them. This makes it clear that the party who was absolutely no regard for the orders of the court must be made to bear the consequences of his own action. The judgment-debtor has chosen to wilfully and blatantly flout the orders passed against him in the present execution proceedings from the vey inception thereof." 5.7 The present decree is money decree. The court below has noticed the conduct of the judgment-debtor reflecting his unwillingness to satisfy the decree. On the basis of the factual material before it, the conclusion is drawn by the court below that though the judgment-debtor has means to satisfy the decree but has neglected in discharging his obligation. Upon assessing the facts and conduct of the judgment-debtor the Executing Court has duly found that they are indicative of unwillingness and avoidance on part of the judgment-debtor to pay the decreetal amount despite availability of means with him to pay. The Court has considered therefore that order for furnishing security deserved to be passed. The view taken by the court below is reasonable on facts and in law. 5.8 In view of all the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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