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TMI Blog2020 (8) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... H JUNE, 2021) 1. In execution proceeding, the Executing Court has to ascertain the assets and income of the judgment-debtor to determine, whether the judgment-debtor has the means to satisfy the money decree. In many developed countries, the law prescribes a comprehensive format of affidavit of assets, income, expenditure and liabilities to be filed by the judgment debtor at the very threshold of execution proceedings to ascertain the financial means of judgment-debtor. However, Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets, income, expenditure and liabilities of the judgment-debtor. 2. Vide judgment dated 05th December, 2019, this Court, after considering the best international practices with respect to mandatory filing of an affidavit of assets, income, expenditure and liabilities by the judgmentdebtor, formulated the formats of affidavits to be filed by the judgment debtor at the very threshold of the execution proceedings. This Court also laid down the guidelines for expeditious hearing and disposal of execution cases. 3. Vide judgment dated 05th December, 2019, this Court sought the response an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Raj Durbhunga v. Coomar Ramaput Sing, (1871-72) 14 MIA 605 : 20 ER 912] had observed that the difficulties of a litigant in India begin when he has obtained a decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper India Ltd. [AIR 1925 Oudh 448 (PC)] the Court was constrained to observe that: (AIR p. 448) "Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights." 13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal v. Hazari Lal Kishori Lal [(1982) 1 SCC 525] in para 29 that: (SCC p. 539) "29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections." xxx xxx xxx 16. ……… the position has not been improved till today. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets and income to be filed by the judgment debtor at the very threshold of the execution proceedings to curb the delay and expedite the disposal of execution proceedings. 13. Justice is the ideal to be achieved by law. Justice is the goal of law. ‗Law as it is', may fall short of 'Law as it ought to be' for doing complete justice in a cause. The gap between the two gives an occasion to the Court to develop the law by evolving juristic principles for doing complete justice according to the current needs of the society. J.S. Verma, former CJI, in his lecture titled "New Dimensions of Justice", (1997) 3 SCC J3 observed that: - "Law, Justice and Morality Justice is the ideal to be achieved by Law. Justice is the goal of law. Law is a set of general rules applied in the administration of Justice. Justice is in a cause and depends on application of law to a particular case. Jurisprudence is the philosophy of law. Jurisprudence and Law have ultimately to be tested on the anvil of administration of justice. "Law as it is" may fall short of "Law as it ought to be" for doing complete justice in a cause. The gap between the two may be described as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprehensive and they give a complete overview of the entire assets, income, expenditure and liabilities as well as standard of living of the judgment-debtor. Relevant Legal Provisions 18. Order XXI Rule 41(2) of Code of Civil Procedure - Judgment-debtor to Disclose Assets Order XXI Rule 41(2) of the Code of Civil Procedure empowers the Executing Court to direct the judgment-debtor to disclose his assets on affidavit in Form 16A of Appendix E to ascertain his assets/means to satisfy the decree. Order XXI Rule 41(2) of the Code of Civil Procedure is reproduced herein below: - "Order XXI Rule 41 (1)………………… (2) 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 or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor." 19. Form 16A of Appendix E of Code of Civil Procedure - Format of Affidavit of Assets Form 16A of Appendix E of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llip;…… Rs……. .(etc.) Sworn before me, etc. ] *Strike off the word which are not applicable" 20. Order XXI Rule 41(1) of Code of Civil Procedure - Oral Examination of Judgment-Debtor Order XXI Rule 41(1) of the Code of Civil Procedure empowers the Executing Court to orally examine the judgment-debtor. Order XXI Rule 41(1) of the Code of Civil Procedure is reproduced hereunder: - "Order XXI Rule 41(1) - Examination of judgment-debtor as to his property (1) Where a decree is for the payment of money the decreeholder may apply to the Court for an order that (a) the judgment-debtor, or (b) where the judgment-debtor is a corporation, any officer thereof, or (c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents." (Emphasis Supplied) 21. Order XXI Rule 41(3) of Code of Civil Procedure - Detention of Judgment-Debtor In the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely:-- (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman; (b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the emoluments of any servant of the Government] or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension; (m) an expectancy of succession by survivorship or other merely contingent or possible right or interest; (n) a right to future maintenance; (o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and (p) where the judgment-debtor is a person liable for the payment of land-revenue, any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue. Explanation I.--The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable. Explanation II.--In clauses (i) and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der discovery and the like Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-- (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit." 25. Section 106 of the Indian Evidence Act - Burden of disclosing the assets The assets and income of a judgment-debtor are within his personal knowledge and Section 106 of the Indian Evidence Act casts the burden on him to disclose his assets and income. Section 106 of the Indian Evidence Act reads as under: "Section 106 - Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 26. Section 165 of the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2010) 10 SCC 677, Zahira H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, State of Rajasthan v. Ani, (1997) 6 SCC 162, Mohanlal Shamji Soni v. Union of India, 1991 Supp. (1) SCC 271, Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178, Sessions Judge, Nellore Referring Officer v. Intha Ramana Reddy, 1972 CriLJ 1485 with respect to the scope of the power under Section 165 of the Indian Evidence Act. 28. Delhi High Court Rules for Execution of Decrees The Delhi High Court Rules for execution of decrees [Volume I of High Court Rules and Orders, Part C, Chapter 12 - Part A - ‗General'] provides for expeditious disposal of the execution cases by District Courts. Rule 2 provides at least one day every week to be reserved for execution work to ensure expeditious disposal. Rules 4 and 5 provide for close supervision and control of the execution cases by the District Judge and report to the High Court in the event of any delay in the disposal of execution cases. Rules 2, 4 and 5 of Volume I of High Court Rules and Orders, Part C, Chapter 12, Part A - General of Delhi High Court Rules are reproduced hereunder: "CHAPTER 12 Execution of Decrees Part A - GENERAL 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential feature in the justice delivery system. People would have faith in Courts when truth alone triumphs. The justice based on truth would establish peace in the society. 30. Krishna Iyer, J. in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 described truth and justice as under: "8. …Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings." (Emphasis Supplied) 31. In Union Carbide Corporation v. Union of India, (1989) 3 SCC 38, the Supreme Court described justice and truth to mean the same. The observations of the Supreme Court are as under: "30. …when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France said: "T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination,... Truth, like all other good things, may be loved unwisely--may be pursued too keenly--may cost too much. xxx xxx xxx 35. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the ‗majesty of the law'." (Emphasis Supplied) 36. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court again highlighted the significance of truth and observed that the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover the truth to do complete justice. The Supreme Court further stressed that the Judge has to play an act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent. 39. In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, the Supreme Court observed that the Indian judicial system is grossly afflicted with frivolous litigation. Relevant portion of the said judgment is as under: "191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims." (Emphasis Supplied) Consequences of Making a False Claim in Court 40. Section 209 of the Indian Penal Code provides an effective mechanism to curb the menace of frivolous litigation. Section 209 of the Indian Penal Code provides that dishonestly making a false claim in a Court is an offence punishable with punishment of imprisonment upto two years and fine. Section 209 of the Indian Penal Code is reproduced hereunder: "Section 209 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court held as under: "148. The appellants must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or months it would have been different but here it is almost 14 years that have lapsed and the amount has not been paid. The questions, therefore, are really three: 1. Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of non-compliance? 2. Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and 3. Whether the Court should not remove all incentives for not complying with the judgment of the Court? 149. It is settled principle of law that no one can take advantage of his own wrong. Unless courts disgorge all benefits that a party availed by obstruction or delays or noncompliance, there will always be incentive for non-compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them. 150. Whatever benefits a person has had or could have had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. (Emphasis Supplied) Imposition of Costs 49. Imposition of actual and realistic costs in appropriate cases would go a long way in controlling the tendency of filing false cases. 50. In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings." (Emphasis Supplied) 52. In Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161, the Supreme Court again held that the Court must adopt a pragmatic approach and in appropriate cases, realistic costs and compensation be ordered in order to discourage dishonest litigation. The relevant paragraphs of this judgment are reproduced hereunder:- "191. In consonance with the principle of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by the abuse of the process of the court. One way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Form 38B - Affidavit of Financial Affairs 1. https://www.magistratescourt.wa.gov.au/_files/CJE_For m_38.pdf 2. https://www.magistratescourt.wa.gov.au/_files/CJE_For m_38A.pdf 3. https://www.magistratescourt.wa.gov.au/_files/CJE_For m_38B.pdf 3. Australia Magistrates‟ Court of Victoria Magistrates' Court General Civil Procedure Rules, 2010 Rules 72.02(4), 72.04(3), 72.05(5)(a) Rule 67.01(3)(8) Judgment Debtor‟s Statement of Financial Position - Individual - Form 72C Judgment Debtor‟s Statement of Financial Position - Corporation - Form 67C 1. https://www.mcv.vic.gov.au/ sites/default/files/201810/Judgment-debtorsstatement-of-financialposition-Form 72C.pdf 2. https://www.mcv.vic.gov.au/ sites/default/files/201810/Examination-ofjudgment-debtorcorporation-Form-67C.pdf 4. Australia Supreme Court of Queensland Uniform Civil Procedure Rules 1999, Rule 807 Statement of Financial Position Form 71, Version 3 1. https://www.courts.qld.gov.a u/__data/assets/word_doc/00 05/88421/form-071statement-of-financialposition.doc 5. Australia New South Wales Civil Procedure Act, 2005 Uniform Civil Procedure Rules, 2005 Part 38 - Examination of judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionairre.doc 10. U.K. Her Majesty's Courts and Tribunals Service (HMCTS) County Courts‟ Civil Procedure Rules, 1998 PART 71 - Orders to Obtain Information from Judgment Debtors Practice Direction Part 71 - Orders to Obtain Information from Judgment Debtors Rule 71.6 of Orders to Obtain Information from Judgment Debtors Para (4.1) of Practice Direction Part 71 - Orders to Obtain Information From Appendix A - Form EX140: Record of evidence (individual debtor) Appendix B - Form EX141 : Record of evidence (Officer of a company Form N316: Apply for an order for a debtor to attend court Form N316A: Application for order that officer of the debtor company attend court for questioning 1. https://assets.publishing.serv ice.gov.uk/government/uplo ads/system/uploads/attachm ent_data/file/688117/ex140eng.pdf 2. https://assets.publishing.serv ice.gov.uk/government/uplo ads/system/uploads/attachm ent_data/file/688119/ex141eng.pdf 3. https://assets.publishing.serv ice.gov.uk/government/uplo ads/system/uploads/attachm ent_data/file/688613/n316eng.pdf 4. https://assets.publishing.serv ice.gov.uk/government/uplo ads/system/uploads/attachm ent_data/file/688616/n316aeng.pdf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/courtforms/mc287.pdf 20. U.S.A. United States District Court, District of Connecticut General Statutes of Connecticut Volume- 13, Title 52-Civil Actions, Chapters 906- Post Judgments Procedure, Section 52-397 Financial Affidavit 1. https://www.jud.ct.gov/webf orms/forms/fm006-long.pdf 21. U.S.A. Commonwealth of Massachusetts Massachusetts Trial Court Rules Trial Court Rule III: Uniform Small Claims Rules Uniform Small Claims Rule 9: Enforcement of Judgments Sub Rule (c) Financial Statement of Judgment Debtor 1. https://www.mass.gov/files/ documents/2018/12/31/judfinancial-statement-ofjudgment-debtor.pdf 22. U.S.A. The Delaware Municipal Court, Delaware County, Ohio Ohio Revised Code, 1953 Title XIX Courts - Municipal - Mayor's - County - Chapter 1925: Small Claims Divisions - Collecting & enforcing judgments - 1925.13 (B) Motion for Debtor Exam or Financial Disclosure (Proceeding in Aid of Execution - SmallClaims Court) RC Section 1925.13 1. http://www.municipalcourt.o rg/wpcontent/uploads/DebtorExam-or-FinancialDisclosure-Applicationfor.pdf 23. U.S.A Wisconsin Statutes (Small Claims) Sections 799.26, 812.34 & 812.39, Wisconsin Statutes C-506B, 11/17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not deposit the decretal amount, the judgment-debtor shall file an additional affidavit in the format of Annexures A1/B1 along with the documents mentioned therein within 30 days of the receipt of this notice. 59. It is clarified that if the decretal amount is deposited within 30 days of the receipt of the notice, the judgment-debtor is not required to file the affidavit/additional affidavit before the Court. 60. If the judgment-debtor is Central Government/State Government/ Municipal Corporation/PSU/Entity of Central/State Government/Foreign State, the direction to file the affidavit of assets in Form 16A Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure and attachment of assets is not necessary in the first instance. In such cases, the Executing Court shall direct the judgment-debtor to disclose the particulars of its bank account(s) in which there is sufficient amount to satisfy the decree/award, on affidavit within 30 days of the receipt of the notice. However, if the amount in the bank account(s) is not sufficient to satisfy the decree, the Executing Court shall direct the judgment-debtor to file the affidavit of assets in Form 16A of Appendix E of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of a decree/award dated ………..under which you are liable to pay Rs. ………………… to the decree-holder. You are hereby directed to deposit Rs……………with this Court within thirty days of the receipt of this notice. IN the event of failure to deposit Rs………… , you are directed to file an affidavit of your assets on the date of cause of action, date of the award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E of the Code of Civil Procedure within thirty days of the receipt of the notice. IN the event of failure to deposit Rs………… , you are further directed to file an additional affidavit in terms of the formats attached to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, judgment dated 24th June, 2021 in Ex.P.275/2021 , namely (i) Annexure A1 - if you are an individual and; (ii) Annexure B1 - if you are a proprietorship firm/partnership firm/HUF/company/trust, within thirty days of the receipt of the notice. You are directed not to transfer, alien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue a show cause notice to the judgment-debtor and afford an opportunity of hearing. The Court may also consider examining the judgment-debtor in terms of Order XXI Rule 41(1) of the Code of Civil Procedure before detaining the judgment-debtor. After the detention order is passed, the Executing Court shall direct the decree-holder to deposit the applicable subsistence allowance which at present is @ Rs.40/- per day per person with the Executing Court for detention of the judgment-debtor. Upon deposit of the subsistence allowance, the Executing Court shall issue non-bailable warrants against the judgment-debtor for his detention. 65. Format of additional affidavit of assets and income (i) Since Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure is not exhaustive to ascertain all the assets of the decree-holder, this Court, in exercise of its powers under Sections 30 and 151 and Order XXI Rule 41 of the Code of Civil Procedure read with Sections 106 and 165 of the Indian Evidence Act and Article 227 of the Constitution of India, has formulated the following three affidavits: • Annexure A1 - Affidavit of assets and income of the judgmentdebto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance. A salaried judgment-debtor has to disclose the particulars of his employment including salary, D.A., commissions, incentives, bonus, perks, perquisites and other benefits, Income Tax, pension and retirement benefits etc. A self-employed judgment-debtor has to disclose the nature of business/profession, share in business/profession, net worth of the business, number of employees, amount of regular monthly withdrawals, Income Tax, net income, annual turnover/gross receipts, gross profits etc. The judgment-debtor is also required to disclose the income from other sources, namely, agricultural income, rent, interest on bank deposits and investments, dividends, profit on sale of movable/immovable assets, mutual funds, annuities etc. The judgment-debtor is also required to disclose whether he has ever been arrested or kept in detention; whether any Court has issued bailable/nonbailable warrants against him; whether he has ever been released on bail/anticipatory bail; whether he has ever been prosecuted and/or convicted; whether he has ever been declared as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of the judgment-debtor (as existing on the date of the institution of proceedings in which decree was passed), the Executing Court may direct the objector to file a detailed affidavit along with all the relevant documents evidencing his claim including subsequent conduct in relation thereto. Verification of assets of the judgment-debtor 71. Upon filing of affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure and the additional affidavits namely Annexures A1, B1 and C1, the decree-holder shall verify the disclosures made in the affidavits, either himself or through an investigator. In appropriate cases, the Executing Court may order investigation by a Government Agency including a forensic audit, cost of which shall be borne by the decree-holder. Service of interrogatories on the judgment-debtor 72. If the judgment-debtor does not truly disclose all his assets and income, the decree-holder is at liberty to serve the interrogatories under Order XI of the Code of Civil Procedure and/or seek production of the relevant documents from the judgment-debtor. 73. In appropriate cases, the Court may order interrogatories, discovery, inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Procedure for detention of the judgment-debtor. Powers of Execution Court 77. In appropriate cases, the Executing Court may issue any of the following directions: (i) Issue notice and direct the Garnishee(s) to deposit in Court the amount due to the judgment-debtor as per law; (ii) Permit the decree-holder to inspect all the assets and the records of the judgment-debtor in the presence of the Local Commissioner to be appointed by the Court; (iii) Direct the auditor of the judgment-debtor company to submit a report with respect to the affairs of the judgment-debtor company; (iv) Permit the decree-holder to serve interrogatories on the auditors of the judgment-debtor; (v) Permit the decree-holder to inspect the records of the judgment debtor with the Income Tax Department and the other authorities to verify the disclosures made by the judgment-debtor; (vi) Appoint a receiver in respect of the attached properties of the judgment-debtor; and (vii) In extreme cases, appoint a Chartered Accountant as a Local Commissioner to inspect all the records of the judgment-debtor and submit a report to the Court with respect to the affairs of the judgment-debtor. Restitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with such other evidence that they are able to gather. Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 CrPC. Reference be made to Sanjeev Kumar Mittal v. State, (2010) 174 DLT 214 for principles relating to Section 340 CrPC and H.S. Bedi v. National Highway Authority of India, 2016 (155) DRJ 259 for principles relating to Section 209 IPC. 81. The Courts below shall expedite the execution proceedings and shall make an endeavour to decide the execution cases within one year of their institution. The Courts below shall send the list of all pending execution cases which are more than one year old, through their respective Principal District Judges. The list shall contain the name of the case; date of institution; number of hearings that have taken place; whether the judgment debtor has filed the affidavits of assets and income and the reasons for delay in disposal. List be prepared according to the seniority i.e. the oldest case shall be mentioned first. The Courts below shall also send a list of execution cases decided in the last o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 86. The modified directions and format of the affidavits (Annexures A1, B1 and C1) be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same. 87. Copy of this judgment and modified format of affidavits of assets, income and expenditure Annexures A1, B1 and C1 be sent to the Registrar General of this Court who shall circulate it to all the District Judges for being circulated to all the concerned courts. 88. Copy of this judgment be sent to Mr. Rahul Mehra, learned Standing Counsel for GNCTD who shall circulate it to all the SDM‟s dealing with execution cases as arrears of land revenue. The Principal Secretary (Revenue) shall ensure the compliance of these directions by all SDMs in execution cases. 89. Copy of the judgment along with Annexures A1, B1 and C1 be sent to the Delhi Judicial Academy to sensitize the judges about the modified directions laid down by this Court. 90. National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of this judgment along with Annexures A1, B1 and C1 be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold properties, land/ agricultural land and investment in real estate such as booking of plots, flats, etc. in the name of judgment-debtor or in joint names with the judgment-debtor (ii) Possession Whether the possession of the above properties is with the judgment-debtor? If no, give status of the possession (iii) Title documents Whether the title documents of the above properties are with the judgment-debtor? If no, give status of the possession of the title documents (iv) Litigation Whether any litigation is pending in respect of the above properties. If so, give particulars 14. Financial Assets/Debts (i) Particulars of all bank accounts including Current and Savings Accounts in the name of judgment-debtor or in joint names with judgment-debtor held in the last ten years Note : If any bank account(s) has/have been classified by the banks as willful defaulter under the Master Circular on ‗Wilful Defaulters' dated 01.07.2015 [RBI/2015-16/100DBR.No.CID. BC .22/20.16. 003/2015-16] or Reserve Bank of India (Frauds classification and reporting by commercial banks and select Financial Institutions) directions 2016 under Master Circular dated 01.07.2016(RBI /DBS/2016-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on/ association of the judgment-debtor, directly or indirectly, in any corporation, unincorporated business, company, partnership, trust, joint venture and Association of Persons, Society etc. in the last ten years or from the date of beginning of cause of action, whichever is later 20. Disposal and parting away of properties (i) Particulars of all properties transferred/agreed to be transferred or parted with the possession by any mode including sale, gift, relinquishment, General power of attorney, Special power of attorney, exchange, agreement, family settlement, lease, transfer of shareholding/investment etc. in the last ten years or from the date of beginning of cause of action, whichever is later; name/address of the transferee and the consideration received from the transferee(s) (ii) Partition/severance of status/ change of status of your assets and/or business entities such as partnership/HUF or MOUs/ agreements etc. 21. Properties acquired by the family members of the judgment-debtors (i) Particulars of the properties (movable/ immovable) acquired by immediate family members of judgment-debtor in the last ten years or from the date of beginning of the cause of act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; period of last employment; name and address of last employer; last drawn monthly salary, perquisites and other benefits provided by the employer and last drawn annual salary 26. If the judgment-debtor is self employed: (i) Nature of business/ profession (ii) Whether the business/ profession is carried on as an individual, sole proprietorship concern, partnership concern, company or association of persons, HUF, joint family business or any other form. (iii) Give particulars of your share in the business/ profession (iv) Amount of regular monthly withdrawal or drawings from the business (v) Whether you are a director or had been a director of a company in last five years? If so, give particulars (vi) Details of all firms and other business entities in which you have/had interest in the last five years (vii) Whether you have taken any loan/credit facility(s) from banks and other financial institutions in last five years? If so, give particulars (viii) Whether your accounts are audited (ix) Name and address of the auditors and date of last audit of accounts (x) Whether you are subject to audit under Section 44AB of the Income Tax Act, 1961 (xi) Whether you filed a Weal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on investments including deposits, NSC, IVP, KVP, Post Office schemes, PPF, loans etc. (v) Dividends (vi) Income from machinery, plant or furniture let on hire (vii) Gifts (viii) Profit on sale of movable/ immovable assets (ix) Mutual Funds (x) Annuities (xi) Any other source of income not covered above Note: - If you are expecting to receive a lump sum payment in the future, give further details including the amount and expected date of receipt of the payment 30 Any other income not covered above TOTAL INCOME Annual Rs. Monthly Rs. PERSONAL INFORMATION OF THE JUDGMENT-DEBTOR 31. Have you ever been arrested? 32. Have you ever been kept under detention? 33. Has any Court issued bailable/non-bailable warrants against you? 34. Have you ever been released on bail/anticipatory bail? 35. Have you ever been prosecuted for any offence? 36. Have you ever been convicted for any offence? 37. Have you ever been declared as proclaimed offender/proclaimed person by any Court? 38. If the answer to any of the above-mentioned questions is „Yes‟, give full particulars of the case/arrest/bail/detention/ conviction/sentence/ punishment etc. 39. Particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence 64. CIR/CIBIL Score Description Please Tick Attached NA To follow 65. Statement of Account of all bank accounts including current, savings and DEMAT accounts of the judgment-debtor for last three years 66. In case of salaried persons (i) Income Tax Return(s) along with the balance sheets, statement of income and Annexures for last five years (ii) Appointment Letter along with salary structure at time of appointment (iii) Salary slip (iv) Forms 16, 16A & 12BA (v) Cost to Company Certificate (vi) Copies of TDS certificates 67. In case of self-employed persons (i) If the judgment-debtor carries on business in the name of a sole proprietorship concern - Income Tax Return(s) along with the balance sheets, Profit & Loss Account, statement of income and Annexures of the proprietorship firm for last five years (ii) If the judgment-debtor is a partner in a firm - Income Tax Return(s) along with the balance sheets, Profit & Loss Account, statement of income and Annexures of the partnership firm, along with the Schedule showing the distribution of partners‟ remuneration and share of profits/losses of the partnership firm and the copy of the partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decrees/awards 80. Other relevant documents relating to assets and income Declaration: 1. I declare that I have made accurate, true and complete disclosure of my income and assets from all sources. I further declare that I have no assets, income or financial resources other than those set out in this affidavit. 2. I undertake to inform this Court immediately upon any material change in my income and assets or any other information disclosed in this affidavit. 3. I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me. 4. The copies of the documents filed with the affidavit are the true copies of the originals and I have self attested the copies after comparing them with their originals. 5. I understand that any false statement and misrepresentation in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code, 1860 punishable with imprisonment upto seven years and fine, and Section 209 of the Indian Penal Code, 1860 punishable with imprisonment upto two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s /Proprietor/ Trustee 17. Particulars of the transactions with the related parties whether in the form of expenses, loans or otherwise from the date of the beginning of cause of action upto the date of the affidavit 18. Have any Directors/Promoters/Partners /Proprietor/ Trustee taken loan/overdrawn/credit from the judgment-debtor? If so, give particulars 19. Has the judgment-debtor transferred any assets to any Directors /Promoters /Partners /Proprietor/ Trustee? If so, give particulars 20. Particulars of the benefits received by any Directors/Promoters/Partners/Proprietor/Trustee from the judgment-debtor other than by way of salary. e.g. provision of car, payment of accommodation etc. *Note 1 - If the judgment debtor is a company, this affidavit has to be executed by all Directors/Promoters (other than independent/ non-executive/ nominee directors); If the judgment debtor is a partnership firm, this affidavit has to be executed by all its partners; If the judgment debtor is a proprietorship firm, this affidavit has to be executed, by its proprietor and in case of a trust, by its Managing Trustee. Note 2 - All the documents attached to this affidavit have to be self-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Details of the foreign investments made including those made in last ten years or from the date of beginning of cause of action, whichever is later (vii) Other investments not covered by above items Particulars Current Value 24. Movable Assets (i) Motor Vehicles (List of cars, motorcycles, scooters etc. along with their brand and registration number) (ii) Livestock (iii) Plant & Equipments (iv) Mobile phone(s) (v) Computer/Laptop (vi) Other electronic gadgets including I-pad etc. (vii) TV, Fridge, Air Conditioner, etc. (viii) Any other movable assets having cost of acquisition of more than Rs.25,000/- each Particulars Cost of Acquisition 25. Intangible assets Intangible assets including patents, trademark, copyright, design, goodwill and their value 26. Garnishee(s)/Trade receivables (i) Name(s) and addresses of Garnishee(s) and the particulars of the debt, share and other properties recoverable from the Garnishee(s) with complete details of the transactions (ii) Trade receivables along with name, address and amount due from each Garnishee(s) 27. Corporate/Business Interests (i) Particulars of the interest/ position/ association of the judgment-debtor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on hire (vii) Profit on sale of movable/ immovable assets (viii) Any other sources of income not covered above Note: - If the judgment-debtor is expecting to receive a lump sum payment in the future, give further details including the amount and expected date of receipt of the payment 31 Any other income not covered above OTHER RELEVANT INFORMATION 34. Whether the Proprietor / Partners /Directors /Promoters / Trustees/ other key persons of the judgment-debtor have ever been arrested? 35. Whether the Directors/Promoters/Partners/Proprietor/ Trustees/ other key persons of the judgment-debtor have ever been kept under detention? 36. Whether any Court issued bailable/non-bailable warrants for appearance of Directors/Promoters/Partners/Proprietor/Trustees/ other key persons of the judgment-debtor? 37. Whether the Directors/Promoters/Partners/Proprietor/ Trustees/ other key persons of the judgment-debtor have ever sought bail/anticipatory bail? 38. Whether the Directors/Promoters/Partners/Proprietor/ Trustees/ other key persons of the judgment-debtor have ever been prosecuted for any offence? 39. Whether the Directors/Promoters/Partners/Proprietor/ Trustees/ other key pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment-debtor is a partnership firm - Income Tax Return(s) along with the balance sheets, Profit & Loss Account, statement of income and Annexures of the partnership firm, along with the Schedule showing the distribution of partners‟ remuneration and share of profits/losses of the partnership firm and the copy of the partnership deed, for last five years (iii) If the judgment-debtor is a Company - Income Tax Return(s) along with the balance sheets, Profit & Loss Account, statement of income and Annexures of the Company for last five years (iv) If the judgment-debtor in an Association of Persons, HUF, Joint Family business or Trust - Income Tax Return(s) along with the balance sheets, Profit & Loss Account, statement of income and Annexures of the Association of Persons, HUF, Joint Family business or Trust for last five years (v) GST/ VAT/ Excise/ Sales Tax registration, returns in last five years (vi) TDS certificates 58. In case of Income from other sources: (i) Lease Deed(s)/ Rent Agreement(s)/ License Agreement(s) in respect of the rental income (ii) Interest Certificate in respect of the interest income on deposits and investments (iii) Dividend Certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enal Code, 1860 punishable with imprisonment upto two years and fine. I/we have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860. DEPONENT Verification: Verified at ____________on this ____ day of ___________ that the contents of the above affidavit relating to the income and assets of the judgment-debtor are true to my/our knowledge, no part of it is false and nothing material has been concealed therefrom. I/we further verify that the copies of the documents filed along with the affidavit are true copies of the originals. DEPONENT ANNEXURE C1 FORMAT OF AFFIDAVIT OF EXPENDITURE* I _______________________, son of / daughter of / wife of / ___________________, aged about ____ years, resident of ___________________________, do hereby solemnly declare and affirm as under: STATEMENT OF EXPENDITURE S. No. Description Amount (in Rs.) Per Month 1. Housing (i) Monthly rent (ii) Mortgage payment(s) (iii) Repairs & Maintenance (iv) Property tax 2. Household Expenditure (i) Groceries/Food/Personal care/clothing (ii) Water (iii) Electricity (iv) Cooking Gas (v) Telephone (vi) TV Cable/Set-top Box & Internet services (vii) Domestic ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments relating to expenditure Declaration: 1. I declare that I have made accurate, true and complete disclosure of my expenditure from all sources. I further declare that I have no expenditure other than those set out in this affidavit. 2. I undertake to inform this Court immediately upon any material change in my expenditure or any other information disclosed in this affidavit. 3. I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me. 4. The copies of the documents filed with the affidavit are the true copies of the originals and I have self attested the copies after comparing them with their originals. 5. I understand that any false statement and misrepresentation in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code, 1860 punishable with imprisonment upto seven years and fine, and Section 209 of the Indian Penal Code, 1860 punishable with imprisonment upto two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860. DEPONENT Verification: Verified at ____________on this ____ day of ___________ tha ..... 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