9911796707
TMI Blog2020 (8) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, 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 and suggestions of the Courts below as well as the Delhi High Court Bar Association on the working of the aforesaid guidelines. The Trial Courts have submitted their response. Suggestions have been received from the Bar members, which have been considered by this Court. 4. This Court is of the view that the directions issued by this Court in the judgment dated 05th December, 2019 and formats of the affidavits (Annexures A, B and C) formulated by this Court require modification, in order to make them more comprehensive. The judgment dated 05th December, 2019, is hereby modified. The modified directions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain." (Emphasis Supplied) 7. Order XXI of the Code of Civil Procedure lays down the procedure for the execution of the decree. Order XXI Rule 1(b) of the Code of Civil Procedure enables the judgment-debtor to directly pay the decretal amount to the decree-holder. Order XXI Rule 1(a) of the Code of Civil Procedure gives an option to the judgment-debtor to deposit the decretal/award amount with the Executing Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the field covered by Morality. There is no doubt that the development of the law is influenced by morals. The infusion of morality for reshaping the law is influenced by the principles of Equity and Natural Justice, as effective agencies of growth. The ideal state is when the rules of law satisfy the requirements of justice and the gap between the two is bridged. It is this attempt to bridge the gap which occasions the development of New Jurisprudence. Existing Gaps The existence of some gap between law and justice is recognised by the existing law itself. This is the reason for the recognition of inherent powers of the court by express provision made in the Code of Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Civil Procedure is the format of the affidavit of assets to be filed by the judgment-debtor, which is reproduced herein below: - "[No. 16A Affidavit of Assets to be made by a Judgment-debtor [O. XXI, r.41(2)] In the Court of A.B......... ................................................................ Decree-holder. Versus C.D....................................... ................................ Judgment-debtor. I....................... of .......................state on Oath/solemn affirmation as follows:- 1. My full name is .......................................... (Block Capitals) 2. I live at 3. I am*........................married/single/widower (widow)/ divorced 4. The following pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months. Order XXI Rule 41(3) of the Code of Civil Procedure is reproduced below: - "Order XXI Rule 41(3) (3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three month unless before the expiry of such terms the Court directs his release." 22. Arrest and Detention of the Judgment-Debtor Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil Procedure prescribe the procedure to be followed for detention of the judgment-debtor in the civil prison. Section 55 contains the provision relating to arrest and detention; Section 56 contains the provision relating to prohibition of arrest and detention of women; Section 58 contains the provision relating to duration of detention and release; Section 59 contains the provision relating to release on the ground of illness; Order XXI Rule 37 contains provision for show cause notice to the judgment-debtor against detention in the civil prison; Order XXI Rule 38 contains the provision relating to warrants of arrest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estic servant and occupied by him; (d) books of account; (e) a mere right to sue for damages; (f) any right of personal service; (g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other employer, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions; (h) the wages of labourers and domestic servants, whether payable in money or in kind; (i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in execution of any decree other than a decree for maintenance: Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. Explanation III.-In clause (I) "appropriate Government" means- (i) as respects any person in the service of the Central Government, or any servant of a Railway Administration or of a cantonment authority or of the port authority of a major port, the Central Government; (ii) [* * *] (iii) as respects any other servant of the Government or a servant of any other local authority, the State Government. Explanation IV.-For the purposes of this proviso, "wages" includes bonus, and "labourer" includes a skilled, unskilled or semi-skilled labourer. Explanation V.-For the purposes of this proviso, the expression "agriculturist" means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer. Explanation VI.-For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land- (a) by his own labour, or (b) by the labour of any member of his family, or (c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both. (1-A) Notwithstanding anything cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1872 invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of finding the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact and thus, possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to base its judgment on any, but only on relevant statements. Section 165 of the Indian Evidence Act, 1872 reads as under: "Section 165 - Judge's power to put questions or order production The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously as possible. Where parties have to be heard or evidence recorded in the course of execution proceedings, notice should be given, processes issued and dates fixed as in the case of original suits. As a rule one day during the week should be reserved for execution works so as to ensure proper attention being paid to it; some times two days are necessary. District Judges are responsible for seeing that proper arrangements are made for execution work by all courts subordinate to them. xxx xxx xxx 4. Distribution Of Execution Work By District Judge District Judges should record standing orders regulating the distribution of applications for the execution of decrees among the Courts subordinate to them, providing for the disposal of cases in which decrees were passed by officers who have ceased to be attached to the district, and for carrying on the execution proceedings already pending before such officers at the time of their ceasing to be employed therein. In framing such orders, every Court should be required as far as possible, to execute all decrees passed by itself; but, where this is not possible and it is necessary to send the decree to another Court for execution, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believe in the triumph of truth and justice. That is what upholds me in times of trial...." (Emphasis Supplied) 32. In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, the Supreme Court observed that the presiding officer of a Court should not simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost. The presiding officer has a legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. 33. In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, the Supreme Court observed that to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it with the hope that truth would ultimately prevail. People would have faith in Courts when they would find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where in fact the truth lies. 33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. xxx xxx xxx 35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. xxx xxx xxx 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth." (Emphasis Supplied) Fals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther description for a term which may extend to two years, and shall also be liable to fine." 41. Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken. 42. The judicial system has to protect itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty. In H.S. Bedi v. National Highway Authority of India, 2016 (227) DLT 129, this Court examined the scope of Section 209 of the Indian Penal Code. Restitution 43. One major incentive for the obstruction and delay of execution proceedings by the judgment-debtors is the ability to benefit by either tiring out the decree-holders into giving up or coercing them to settle for less. This occurs because of the reluctance of the Executing Court to wield their power to order restitution. 44. Unless Courts disgorge all benefits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the unrestituted amount." (Emphasis Supplied) 48. In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430, the Supreme Court again reiterated the principles relating to restitution. Relevant paras of the judgment are reproduced hereunder: Restitution and Mesne Profits 34. Experience reveals that a large number of cases are filed on false claims or evasive pleas are introduced by the defendant to cause delay in the administration of justice and this can be sufficiently taken care of if the courts adopt realistic approach granting restitution. xxx xxx xxx 38. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite some time, at times years, before the court is able to see through, discern and reach to the truth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .......C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and 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. xxx xxx xxx 54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. (Emphasis Supplied) 51. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation. 192. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases." (Emphasis Supplied) International Best Practices 53. This Court has examined the formats of the affidavits of assets, income, expenditure and liabilities to be filed by the judgment-debtor in execution cases in United Kingdom, United States of America, Canada, Ireland, Australia, Singapore, New Zealand and South Africa. However, this Court has incorporated only important questions and documents to keep the format concise and precise. The Courts below are at liberty to consider the following formats used in variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. http://www.ucprforms.justice.nsw.gov.au/Documents/PDF/ucpr_form_53_v3.pdf 6. Ireland The Courts Services of Ireland District Court (Civil Procedure) Rules, 2014 Enforcement of Court Orders Act 1926, Part - II, Section 15(1) - Examination of Debtors Order 51A, Rule 4 - Schedule: C - Forms in civil proceedings Form: 51A.02 Statement of means 1. http://www.courts.ie/rules.ns f/53bd32841fc5bbf280256d 2b0045bb5d/8bce12e357295 52e80257c91005a71fa?Ope nDocument 7. New Zealand New Zealand Ministry of Justice District Court Act, 2016 Part 10 - Enforcement of judgments - Sections 145 - 153 District Court Rules, 2014 [Repealed] Part 19 - Enforcement - Rule 19.15 - 19.1 Financial Statement of judgment debtor Individual - Form 36 MOJ36/05/14, MOJ208/10/19 Organization - Form 36a MOJ36a/02/14, MOJ208/10/19 1. https://www.justice.govt.nz/ assets/Documents/Forms/20 8w-filing-a-statement-ofjudgment-debtor.pdf 2. https://www.justice.govt.nz/ assets/Documents/Forms/Fin ancial-statement-individualform36.pdf 3. https://www.justice.govt.nz/ assets/Documents/Forms/20 9-filing-a-statement-ofjudgment-debtororganisation.pdf 4. https://www.justice.govt.nz/ assets/Document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lberta Regulation 221/2017 Form 13 - Financial Statement of Debtor (Individual Debtor) Form 14 - Financial Statement of Debtor (Corporate Debtor) 1. https://albertacourts.ca/docs/ default-source/qb/form14.doc?sfvrs n=2a82ad80_0 2. https://albertacourts.ca/docs/ default-source/qb/form14.doc?sfvrs n=2a82ad80_0 12. Canada Ontario Ontario Regulation 258/98: Rules of the Small Claims Court under Courts of Justice Act, R.S.O. 1990, c. C.43 Form 20I Ontario Regulation 258/98 1. http://www.ontariocourtform s.on.ca/forms/scc/20i/SCR-20I-Jan14-fil-EN.doc 13. Republic of South Africa Department of Justice and Constitutional Development Magistrates' Courts Act 32 of 1944 - Section 65I(2) & 74A Form No. 45 Statement of Affairs of Debtor 1. https://www.justice.gov.za/f orms/MCR/J927-form45.pdf 14. Republic of South Africa Johannesburg Central Magistrate‟s Court Civil Section The National Credit Act 34 OF 2005 Section 86(7)(c) Form B - Statement of Affairs of Debtor 1. https://www.justice.gov.za/ mc/mcjhb/form-B.pdf 15. U.S.A. Minnesota Judicial Branch, 4th Judicial District Minnesota Statutes Civil Procedure Minnesota Statutes 2012, sections 491A.02, subdivisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Florida Florida Rules of Civil Procedure, Discovery I Aid of Execution - Rule 1.560 (b),(c) Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet) 1. https://www.15thcircuit.com /sites/default/files/divisions/ county-civil/rb/Civil-Procedure-Rules-Updated-84-2017.pdf 25. U.S.A New Jersey Courts Superior Court of New Jersey Rules Governing the Courts of the State of New Jersey Process to Enforce Judgments - Orders for Discovery; Information Subpoenas - Rule 6:7-2 (b) Civil Action Information Subpoena Appendix XI-L 1. https://njcourts.gov/forms/ 11840_infor_sub_written_ quest.pdf Conclusion 54. The execution of decrees/awards deserve special attention considering that inordinate delay in execution proceedings would frustrate the decreeholders from reaping the benefits of the decrees/ awards. Execution proceedings instituted within two years of the decree/award 55. If the execution is filed within two years of the decree/award and the decree-holder has disclosed the assets of the judgment-debtor, the Executing Court shall, on the first date of hearing, issue notice to the judgment-debtor, attach the assets of the judgment-debtor and direct the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment/State Government/ Municipal Corporation/PSU/ Entity of Central/State Government/Foreign State. If the judgment-debtor is a Foreign State, the Court shall follow the principles laid down in the judgment dated 18th June 2021 in KLA Const Technologies Pvt Ltd v. The Embassy of Islamic Republic of Afghanistan, OMP(ENF)(COMM) 82/2019. Execution proceedings initiated after two years of the decree/award 61. If the execution proceedings are initiated after two years of the decree/award, the Executing Court shall, in the first instance, issue notice to the judgment-debtor to show cause as to why the decree be not executed against him. The directions relating to the deposit of amount, attachment of assets, filing of affidavit/additional affidavit of assets and the injunction to restrain the judgment-debtor from transferring/ disposing of its assets, shall be considered after the service of the judgment-debtor, unless the decreeholder has made out a case under Order XXI Rule 22 of Code of Civil Procedure. Restraint against judgment-debtor from transferring its assets 62. The Executing Court is empowered, at the initial stage itself, to restrain the judgment-debtor from transferrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of bank/financial institution till the next date of hearing. The following assets of the judgment-debtor as disclosed by the decree-holder are hereby attached: (Give details of assets, if provided by the decree-holder) Given under my hand and seal of the Court, this ...............day of ............20........." FORMAT - II "NOTICE IN CASE THE JUDGMENT-DEBTOR IS CENTRAL GOVT/STATE GOVT/MUNICIPAL CORPORATION/PSU OR CENTRAL/STATE GOVT. ENTITY/FOREIGN STATE (Case Number) (Title of the case) To .................. ..................... ..................... Take Notice that an Execution has been filed in respect 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 the particulars of your bank account(s) in which sufficient amount is there to satisfy the decree/award on affidavit within thirty days of receipt of this notice. Given under my hand and seal of the Court, this ...............day of ............ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) After examining Annexure A1, the Executing Court may direct the judgment-debtor to file an additional affidavit of his expenditure in the format of Annexure C1. (v) The additional affidavits - Annexures A1, B1 and C1 are not mandatory in case the judgment-debtor is a Central Government/State Government/ Municipal Corporation/PSU/Entity of Central/State Government/Foreign State. (vi) In pending execution cases, if the judgment-debtor has not already filed the affidavit of assets and income, the Executing Court shall, within four weeks, direct the judgment-debtor to file the affidavit of his assets and income or provide details of the bank account, as the case may be, in terms of this judgment. (vii) If the facts of the case so require, the Executing Court may, in order to facilitate execution proceedings, direct the parties to make compilation/extracts from the accounts/other data and present the assets and income in a tabular form, duly supported by an affidavit. 66. The aforesaid affidavits are very comprehensive and are useful to determine whether the judgment-debtor has the means to satisfy the decree/award. In the aforesaid affidavits, the judgment-debtor is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xure C1 requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities etc. 67. The affidavit of assets, income, expenditure and liabilities is to be treated as Guidelines to determine the true financial capacity/status of the judgment-debtor. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the judgment-debtor to disclose relevant information and documents to determine the financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties. 68. The Executing Court shall ensure that the filing of the affidavits by the judgment-debtor is not reduced to a mere ritual or formality. If the affidavits of the judgment-debtor are not in the prescribed format or are not accompanied with the relevant documents, the Court may take the affidavits on record and grant reasonable time to the judgment-debtor to remove the defects/deficiencies and simultaneously act on the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbanda v. Vimal Bindal, (2013) 198 DLT 555, which may be referred to. Attachment of assets of the judgment-debtor 75. Sections 51(b), 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure contain the provisions for attachment of properties in execution. Before attaching a property, the Executing Court shall ensure that the property does not fall in the list of properties which are exempt from attachment/sale under the Proviso to Section 60(1) of the Code of Civil Procedure. The Executing Court shall ensure the compliance of Sections 60 to 64 and Order XXI Rules 41 to 57 of the Code of Civil Procedure with respect to the attachment of properties in execution of decrees/awards. Detention of judgment-debtor 76. If the judgment-debtor does not satisfy the decree/award despite having means/capacity to pay, the decree-holder has to file an application for the detention of the judgment-debtor whereupon the Executing Court shall issue a show cause notice to the judgment-debtor to show cause as to why he should not be committed to civil prison. The Executing Court shall, upon being satisfied that the judgment-debtor has means to pay the decretal amount or substantial pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment-debtor. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful person so as to check frivolous litigations and prevent people from reaping a rich harvest of illegal acts through Court. The costs imposed by the Courts must be the real costs equal to the deprivation suffered by the rightful person and also considering how long they have compelled the other side to contest and defend the litigation in various courts. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. Consequences for raising false claims 80. If the judgment-debtor makes a false claim/statement in his/her affidavit, the decree-holder is at liberty to invoke Section 340 CrPC for prosecution of the judgment-debtor under Section 209 IPC. Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the judgment-debtor to show cause as to why a complaint be not made under Section 340 CrPC for having made a false claim under Section 209 IPC and a reasonable opportunity be affo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely Annexures A1, B1 and C1 or such information from the affidavits as is considered necessary, can be directed to be filed in any proceedings in which the Court considers it necessary to ascertain the financial capacity or status of a party such as proceedings under Order XXXVIII of the Code of Civil Procedure and proceedings under Section 9 of the Arbitration and Conciliation Act. The Arbitral Tribunals are also empowered to direct a party to file the aforesaid affidavits i.e. Annexures A1, B1 and C1 or such information from the affidavits as is considered necessary, in the proceedings under Section 17 of the Arbitration and Conciliation Act to ascertain the financial capacity/status of a party. 84. This Court appreciates the assistance rendered by Mr. Dayan Krishnan, Senior Advocate and Mr. Sanjiv Kakra, Advocate as amici curiae in formulating this procedure. Mr. Rajiv Nayyar, Senior Advocate; Mr. Rajiv Virmani, Senior Advocate; Mr. Jayant Mehta, Advocate; and Mr. Percival Billimoria, Advocate have also given valuable inputs. This Court also appreciates the extensive research on corresponding law in other countries by Mr. Akshay Chowdhary, Law Researcher, attached to this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ________________, do hereby solemnly declare and affirm as under: S. No. Description Particulars 1. Whether you have means to satisfy the award/ decree/order? If yes, please give the proposed Schedule of payment: 2. Name 3. Age 4. Educational Qualifications 5. Professional Qualifications 6. Occupation 7. Monthly income from all sources including employment, business, vocation, interest, investment, income from properties, assets etc. 8. Current source of income as well as sources of the income in the last five years 9. Whether you are assessed to Income tax? 10. Marital Status 11. Complete details of the immediate family members (Name, age, relation, occupation, income, residence and office addresses in last ten years) 12. Addresses: (i) Present Residential Address (ii) Permanent Residential Address (iii) Present Office address (iv) E-mail (v) Mobile No.(s) (vi) Landline Phone No.(s) Residence:- Office:- (vii) Passport No. (viii) Aadhaar Card No. (ix) PAN Card No. *Note 1 - If the judgment-debtor is a proprietor/partner of a Firm/member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lockers in the name of the judgment-debtor or in joint names with the judgment debtor (v) Particulars of the debts/ liabilities of the judgment debtor (vi) Particulars of the overdraft facility along with name and address of the bank, branch, account No., type and particulars of the security given to secure the overdraft 15. Investments (i) FDR(s), NSC, IVP, KVP, Post Office schemes etc. (ii) Deposits with Government and Non-Government entities (iii) Stocks, shares, debentures, bonds, units and mutual funds, etc. (iv) Insurance policies and their surrender value (v) Loan given to friends, relatives and others (vi) 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 16. 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 Conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members in the last ten years or from the date of beginning of the cause of action, whichever is later (iv) Details and particulars of shares purchased/investments made by the judgment-debtor in the name of immediate family members in the last ten years or from the date of beginning of the cause of action whichever is later 22. Inheritance Particulars of the estate in which the judgment-debtor is a beneficiary of inheritance along with market value of the property inherited 23. Existing charges on the assets (i) Particulars of all existing charges on the assets including mortgage, charge, pledge on the assets (ii) Whether the charges are registered, and the present status of the same (iii) Whether any of the assets are subject to attachment proceedings under any Act including Prevention of Money Laundering Act, 2002; Income Tax Act, 1961; Benami Transactions (Prohibition) Act, 1988 and Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 24. List of other assets not itemized above STATEMENT OF INCOME S. No Description On the date of the cause of action On the date of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the date of closure, present status of the assets and if the assets have been transferred, the particulars of the transfer and consideration received. 27. In case of a self-employed person /proprietorship firm: (i) Office address and the branch offices, if any, (ii) Net worth of the business (iii) Number of employees (iv) Annual turnover/ gross receipts (v) Gross Profit (vi) Income Tax (vii) Net Income (viii) Amount of regular monthly withdrawal or drawings from the business (ix) Value of your business interest(s) (x) Value of your business assets (xi) Location of your business assets (xii) Location of the statutory records and books of account of the business (xiii) Details and value of benefits in kind, perks or other remuneration received from the business e.g. provision of car, payment of accommodation etc. 28. In case of a Company, partnership, HUF, joint family business or any other form (i) Details of registration and incorporation (ii) Registered Office and the branch offices, if any, of the judgment-debtor including all addresses from the date of beginning of cause of action till the date of filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment etc. 39. Particulars of all pending litigations, disputes, claims, arbitrations, FIR, Complaints etc. pending in any Court, Tribunal, Forum, Authority, in which you are a party Give the name of the case, name of the Court, nature of case, amount involved and the next date of hearing 40. Particulars of all decided/disposed of litigations, disputes, claims, arbitrations, FIR, Complaints etc. decided in any Court, Tribunal, Forum, Authority, in which you were party Give the name of the case, name of the Court, nature of case, amount involved and date of decision 41. Particulars of all the unsatisfied decrees/awards 42. Particulars of place of residence where you have resided during the preceding five years Period Address in full with Police Station & Distt. along with area (in sq. ft.) of the residential accommodation Whether owner/tenant? If rented, the amount of rent? From To 43. Particulars of credit/debit cards, its limit and usage 44. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 deed, for last five years (iii) If the judgment-debtor is a Director of the 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 has a share in 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) Account of the judgment-debtor in the books of the business (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. DEPONENT Verification: Verified at ____________on this ____ day of ___________ that the contents of the above affidavit relating to my income and assets are true to my knowledge, no part of it is false a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-attested by the deponent. STATEMENT OF ASSETS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the overdraft 23. Investments (i) FDR(s), NSC, IVP, KVP, Post Office schemes, Provident Fund(s) etc. (ii) Deposits with Government and Non-Government entities (iii) Stocks, shares, debentures, bonds, units and mutual funds, etc. (iv) Insurance policies (v) Loan given (vi) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assets and if the assets have been transferred, the particulars of the transfer and consideration received 32 Income from Other Sources (i) Agricultural Income (ii) Rent (iii) Interest on bank deposits and FDRs (iv) Interest 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) 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/P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; 51. Ration Card 52. PAN Card 53. Passport 54. Driving Licence 55. CIR/CIBIL Score Description Please Tick Attached NA To follow 56. Statement of Account of all bank accounts including current, savings and DEMAT accounts of the judgment-debtor for last three years 57. (i) If the judgment-debtor is 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets and income Declaration: 1. I/we declare that I/we have made accurate, true and complete disclosure of income and assets of the judgment-debtor from all sources. I/we further declare that the judgment debtor has no assets, income or financial resources other than those set out in this affidavit. 2. I/we undertake to inform this Court immediately upon any material change in the income and assets of the judgment-debtor or any other information disclosed in this affidavit. 3. I/we 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/we have self attested the copies after comparing them with their originals. 5. I/we 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/we have read and understood Sections 191, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; (ii) Annuity (iii) Householders (iv) Medi-claim 7. Entertainment & Recreation (i) Club (ii) Health Club (iii) Gym 8. Holiday & Vacations 9. Legal/litigation Expenses 10. Discharge of Liabilities (i) Credit card(s) payment (ii) Hire purchase/lease (iii) Repayment of Loans (a) House loan (b) Car loan (c) Personal loan (d) Business loan (e) Any other loan (iv) Name of the lenders (v) Mode of repayment (vi) Instalment amount (vii) Other liabilities 11. Miscellaneous (i) Newspapers, magazines, books (ii) Religious contributions/ Charities ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
