9911796707
TMI Blog2021 (6) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... e as Amicus Curiae JUDGMENT (ORAL) 1. This Court laid down the guidelines for execution of the decrees/awards vide judgment dated 05th December, 2019, hereinafter referred to as Bhandari Engineers-I. 2. Vide judgment dated 05th August, 2020, hereinafter referred to as Bhandari Engineers-II, this Court modified the guidelines issued in Bhandari Engineers-I to make them more comprehensive. 3. Mr. Dayan Krishnan, Senior Advocate assisting this Court as Amicus Curiae seeks the following modifications in the guidelines issued in Bhandari Engineers-II: (i) 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 Court shall attach the assets on the very first date of hearing. (ii) If the decree-holder is not aware of the assets of the judgment-debtor, the Court shall direct the judgment-debtor to deposit the amount within 30 days. (iii) If the decretal/awarded amount is not deposited by the judgment debtor, the judgment-debtor be directed to file the affidavit/additional affidavit of its assets and income within 30 days of the receipt of notice. (iv) If the amount is deposited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 judgment-debtor to deposit the decretal amount within 30 days of the receipt of the notice. 56. If the execution is filed within two years of the decree/award but the decree-holder has not disclosed the assets of the judgment debtor, the Executing Court shall issue notice, attach the assets and direct the judgment-debtor to deposit the decretal amount within 30 days of the receipt of the notice. 57. The Executing Court shall direct the judgment-debtor that if the decretal amount is not deposited, the judgment-debtor shall file the affidavit of assets on the date of cause of action, date of the decree/award as well as on the date of the swearing of the affidavit in Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within thirty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decree-holder 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 transferring, alienating or disposing of or otherwise parting with the possession of any assets to the tune of the decretal/award amount except in the ordinary course of business such as payment of salary and statutory dues. The Executing Court shall restrain the judgment-debtor from discharging any financial liability, other than the liabilities of Banks/financial institutions, without the permission of the Executing Court. Format of notices 63. The notice to the judgment-debtor other than Central Government / State Government / Municipal Corporation / PSU / Government Entity/Foreign State shall be in Format-I whereas the notice to the Central Government/ State Government/Municipal Corporation/ PSU/Government Entity/Foreign State shall be Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent 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 20 Detention of the judgment-debtor for failure to file the affidavit of assets 64. In the event of default of the judgment-debtor to file the affidavit in Form 16A Appendix E Order XXI Rule 41(2) of the Code of Civil Procedure within the stipulated time, the Executing Court shall consider detention of the judgment-debtor in civil prison for a term not exceeding three months under Order XXI Rule 41(3) of the Code of Civil Procedure. However, before passing the detention order, the Executing Court shall 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 required to disclose his occupation and income from all sources in the last five years; particulars of immovable properties in his name as well as joint names; financial assets including all bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery etc.; intangible assets; garnishee(s)/trade receivables; 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgmentdebtor to remove the defects/deficiencies and simultaneously act on the information available in the deficient affidavit as per law. 69. If any ground for lifting of the corporate veil of a judgmentdebtor company is made out as per law, then all the Directors/Promoters (other than independent/non-executive and nominee directors) of the judgment-debtor Company shall be directed to disclose their personal assets and income in the format of Annexure A1. 70. If any objections are filed raising claims such as HUF character or transfer, agreement to sell, mortgage, tenancy etc. to the property 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee-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 judgmentdebtor has means to pay the decretal amount or substantial part thereof and has refused or neglected to pay the same, pass an order for detention of the judgment-debtor in civil prison for a period not exceeding three months in terms of Section 58(1)(a) of the Code of Civil Procedure. Even after release from detention, the judgment-debtor shall remain liable to satisfy the decree/award in terms of Section 58(2) of the Code of Civil Procedure. The Court shall follow the procedure laid down in Sections 51(c), 55 to 59 and Order XXI Rules 37 to 40 of the Code of Civil 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 insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 afforded to the judgment-debtor to reply to the same. If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interest of justice to proceed to make a complaint under Section 340 CrPC, the Court need not order a preliminary inquiry. But if facts are not sufficient and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, the Court can direct a State agency to investigate and file a report along 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. Paras 54 to 83 reproduced in paragraph 6 of this judgment are substituted in Bhandari Engineers-II Judgment and the modified judgment is attached hereto and is named as Bhandari Engineers-III Judgment. The Execution Courts shall henceforth follow Bhandari Engineers-III in execution cases. 9. This Court appreciates the assistance rendered by Mr. Dayan Krishnan, Mr. Sanjiv Kakra, learned Senior Advocates as amici curiae, Mr. S. S. Jauhar, learned counsel for decree holder and Mr. Akshay Chowdhary, Law Researcher attached to this Court. 10. Copy of this judgment and Bhandari Engineers-III be sent to all Principal District Judges for being circulated to all the concerned Courts. 11. Copy of this judgment and Bhandari Engineers-III be sent to the Delhi Judicial Academy to sensitize the judges about the modified directions laid down by this Court. 12. Delhi Judicial Academy shall upload this judgment on their website (http://judicialacademy.nic.in) as good practices of this Court. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
