C.V. Bhadang, J.—By this Petition, the Petitioners/Judgment Debtors are challenging the Orders dated 17.02.2016, 25.02.2016 and
03.03.2016 passed by the learned Principal District Judge, South Goa, at Margao in Execution Application no. 100 of 2015.
2. The brief facts necessary for the disposal of the Petition may be stated thus:
That the parties herein had entered into an Agreement dated 17.07.2009, a supplementary Agreement dated 01.09.2009 and lastly an additional
Agreement dated 29.05.2010 pertaining to a transaction of purchase of iron ore and its consequent sale to the overseas buyers. Disputes and
differences arose between the parties and the matter was referred to sole Arbitrator who by an Award dated 18.04.2013 and addendum to the
Award dated 19.05.2013 has held the Respondents to be entitled to recover an amount of Rs.14.76 Crores along with interest at the rate of 8%
per annum w.e.f. 31.12.2010 until realisation. The said Judgment and Award was unsuccessfully challenged by the Petitioners before the learned
District Judge, North Goa and thereafter before this Court in AUA no. 1 of 2015 which was dismissed on 07.08.2015. An application for review
of the said Judgment has also been dismissed on 03.03.2016. Thus, the Award has attained finality.
3. The Respondents had filed an Execution Application no. 396 of 2014 before the learned Principal District, North Goa, immediately after the
dismissal of the application under Section 34 of the Arbitration and Conciliation Act of 1996, (Act, for short), by the learned Principal District
Judge, South Goa. On account of an objection being raised about maintainability of the Execution Application before the Principal District Judge,
North Goa, the matter was eventually transferred by consent of the parties to the learned Principal District Judge, South Goa, and was registered
as Execution Application no. 100 of 2015.
4. On behalf of the Respondents, two applications were filed namely application (exhibit D-4) under Order 21, Rule 41 of Civil Procedure Code
(CPC, for short) for examination of the Judgment Debtors as to their properties and an application (exhibit D-5) under Order 21, Rule 37 read
with Section 151 of Civil Procedure Code for arrest and detention of the Judgment Debtors in civil prison. By the impugned Order dated
17.02.2016, both these applications are allowed which is the principal Order challenged in this Petition. The subsequent Orders dated 25.02.2016
and 03.03.2016, merely issue fresh warrants of arrest with police protection. Thus, the discussion will have to be confined to the challenge as
raised to the Order dated 17.02.2016.
5. I have heard Shri Sardessai, learned Senior Advocate for the Petitioners and Shri Rajal Wadhwa, learned Counsel appearing for the
Respondents.
6. It is submitted on behalf of the Petitioners that the impugned Order proceeds on the ground that the Petitioners have not obeyed the notice for
personal appearance and that no reply is filed to the application under Order 21, Rule 37 of CPC. The learned Counsel has pointed out to the
copy of the roznama from 20.12.2014 to 04.02.2015 in order to point out that reply was filed on behalf of the Judgment Debtors at exhibit D-18
to the application under Order 21, Rule 41 and at Exhibit D-19 to the application under Order 21, Rule 37 of CPC. That apart, a separate
objection (Exhibit D-17) was lodged to the Execution Application. The learned Senior Advocate pointed out that the observations in Para 22 of
the impugned Order that ""seriously speaking, there was no reply to the show cause against the detention in civil prison"", is incorrect and not borne
out of record. The learned Advocate also pointed out that the roznama dated 20.12.2014 states that Advocate Goswami on behalf of the
Judgment Debtors had informed that one of the Judgment Debtors will appear before the Court in person on the next date of hearing. It is
submitted that on 19.01.2015, the Judgment Debtor no. 4 was present in the Court. He, therefore, submitted that the impugned Order cannot be
sustained. The learned Senior Advocate has referred to the objections on behalf of the Judgment Debtor to the Execution Application as also to
the applications under Order 21, Rule 37 of the CPC and the application under Order 21, Rule 41 of the CPC in order to submit that the
impugned Order which directs the detention of the Judgment Debtors in civil prison is incorrect and exhibits, jurisdictional error, requiring
interference.
7. The learned Counsel for the Respondents has advanced oral submissions apart from filing brief written submissions. It is contended that the
Judgment Debtors have failed to satisfy the Decree in spite of having capacity to pay which clearly demonstrates bad faith and malafide intention. It
is submitted that the Petitioners had offered their immoveable property namely ""Acamol"" at the time of execution of additional Agreement dated
29.05.2010. However, at the time of opposing the application being CMA no. 60 of 2012 under Section 9 of the Act, it was claimed that the
property does not belong to the Petitioners/Judgment Debtors. An application under Section 340 of Cr.P.C. for initiation of proceedings in the
nature of perjury are also said to be pending. It is contended that the Petitioners have not complied with the Orders directing them to file affidavits
disclosing their assets and liabilities and at the same time had disputed the title to enlisted properties, by the Respondents/Decree Holders, creating
a situation, where Execution of the Award/Decree by attachment and sale of properties has become impossible. It is contended that all the
necessary pre-conditions envisaged in Section 51 of CPC read with Order 21, Rule 37 of CPC have been complied with and the impugned Order
is just and proper.
8. It is contended that on 08.03.2016, this Court had granted interim protection to the Petitioners on furnishing additional security by way of
property namely ""Posrem Bhat"" as it was represented that its valuation is Rs.13.12 Crores. It was also pointed out that another property namely
Acamol"" has already been furnished as security. The learned Counsel submits that in the Sale Deed of the year 2007, the property namely
Posrem Bhat"" is valued at Rs.24,15,360/-. It is contended that the said property is within 100 metres from the high tide line (HTL) and it is in No
Development Zone (NDZ). It is thus contended that the valuation report of the property known as ""Posrem Bhat"" which is based on the potential
of the said property for erection of shipping facilities/business is incorrect. It is contended that the property ""Posrem Bhat"" could not fetch amount
in excess of Rs.75 lakhs based on the ''direct comparison method'' which is quite insufficient looking to the decretal amount which is sought to be
recovered. Learned Counsel has placed reliance on the decision of the Hon''ble Supreme Court in the case of Shyam Singh v. Collector,
District Hamirpur, UP & Ors. reported in 1993 Supp (1) SCC 693, Jolly George Varghese & anr. v. The Bank of Cochin reported in
AIR 1980 SC 470 and Subrata Roy Sahara v. Union of India & Ors. reported in AIR 2014 SC 3241 in support of his various submissions.
9. I have given my anxious consideration to the rival circumstances and the submissions made. At the outset, it is necessary to mention that the
Award passed by the Arbitrator has attained finality as it was unsuccessfully challenged initially before the learned Principal District Judge, North
Goa, under Section 34 of the Act and thereafter in an Appeal before this Court under Section 37 of the said Act. The Review Application is also
dismissed by this Court. The said Award has thus become executable as a ''Decree'', for payment of money. Order 21, Rule 30 of the CPC
provides for mode of execution of a Decree for payment of money. It provides that every Decree for the payment of money may be executed by
the detention in the civil prison of the Judgment Debtor or by attachment or sale of his property or by both. It can thus be seen that the mode of
execution of Decree for payment of money, can either be by detention of the Judgment Debtor in civil prison or by the attachment and sale of his
property or simultaneously by both the modes. Section 51 of the CPC to the (extent relevant in respect of execution of a money Decree) provides
that such an execution can be by attachment or sale or by sale without attachment of any property and by arrest and detention in prison, for such
period not exceeding the period specified in Section 58 of CPC, where arrest and detention is permissible under that Section.
10. Although there are elaborate provisions made in Order 21 of CPC for execution of a Decree, the experience is perhaps, it is easier to obtain a
Decree than to get it executed. The following observations of the Hon''ble Apex Court in the case of Shyam Singh (supra), in para 11 are apposite
:
It has been said the difficulties of a litigant ""begin when he has obtained a decree."" It is a matter of common knowledge that far too many obstacles
are placed in the way of a decree holder who seeks to execute his decree against the property of the judgment-debtor. Perhaps because of that
there is no statutory provision against a number of execution proceedings continuing concurrently. Section 51 of the Code gives an option to the
creditor, of enforcing the decree either against the perso or the property of the debtor; and nowhere it has been laid down that execution against
the person of the debtor shall not be allowed unless and until the decree-holder has exhausted his remedy against the property. Order 21, Rule 30
of the Code provides that ""every decree for the payment of money as the alternative to some other relief, may be executed by the detention in the
civil prison of the judgment-debtor or by the attachment and sale of his property, or by both.
(Emphasis supplied)
11. Under Order 21, Rule 41 of CPC, a Decree Holder may apply to the Court, for examination of the Judgment Debtor, 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 or the Court may make an order for the attendance and examination of such Judgment Debtor or Officer or other person or for the
production of any books or documents.
Sub-rule (2) of Rule 41 Order 21 of the CPC provides that where a decree for the payment of money has remained unsatisfied for a period of
thirty days, the Court may on the application of the Decree Holder and without prejudice to its power under sub-rule (1), by order require the
Judgment Debtor or where the Judgment Debtor is a corporation, of any Officer thereof, to make an affidavit stating the particulars of the assets of
the Judgment Debtor.
Sub-rule (3) of Rule 41 Order 21 of CPC provides that 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 months, unless before the expiry of such term, the Court directs his release.
12. Order 21, Rule 37 read with Rule 40 of the CPC in terms provides the execution of a Decree for payment of money by the arrest and
detention in the civil prison of the Judgment Debtor. The relevant provisions may be reproduced as under :
37. Discretionary power to permit judgment debtor to show cause against detention in prison.- (1) Notwithstanding anything in these rules, where
an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is
liable to be arrested in pursuance of the application, the court shall, instead of issuing a warrant for his arrest, issue a notice calling upon on him to
appear before the court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the
execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the court.
(2) Where appearance is not made in obedience to the notice, the court shall, if the decree holder so requires, issue a warrant for the arrest of the
judgment debtor.
Rule 40. Proceedings on appearance of judgment debtor in obedience to notice or after arrest.- (1) When a judgment debtor appears before the
court in obedience to a notice issued under rule 37, or is brought before the court after being arrested in execution of a decree for the payment of
money, the court shall proceed to hear the decree holder and take all such evidence as may be produced by him in support of his application for
execution, and shall then give the judgment debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the court may, in its discretion, order the judgment debtor to be detained in the custody
of an officer of the court or release him on his furnishing security to the satisfaction of the court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the court may, subject to the provisions of section 51 and to the other provisions of this
Code, make an order for the detention of the judgment debtor in the civil prison and shall in that event cause him to be arrested if he is not already
under arrest:
Provided that in order to give the judgment debtor an opportunity of satisfying the decree, the court may, before making the order of detention,
leave the judgment debtor in the custody of an officer of the court for a specified period not exceeding fifteen days or release him on his furnishing
security to the satisfaction of the court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment debtor released under this rule may be re-arrested.
(5) When the court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment debtor is under
arrest, direct his release.
It can thus be seen, that before a Judgment Debtor can be committed to civil prison, in execution of a Decree for payment of money, the Court is
obliged to issue a notice calling upon the Judgment Debtor to appear before the Court and to show cause why he should not be committed to civil
prison. Rule 40 Order 21 of CPC, inter alia, provides for an inquiry being conducted by the Court when the Judgment Debtor in pursuance of the
notice shows cause.
13. The provisions of Section 51 of Civil Procedure Code to the extent relevant, read thus :
Section 51 � Powers of court to enforce execution.- Subject to such conditions and limitations as may be prescribed, the court may, on the
application of the decree holder, order execution of the decree�
(a) ...
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible
under that section;
(d) ...
(e) in such other manner as the nature of the relief granted may require:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment
debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied�
(a) that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree,-
(i) ...
(ii) ...
(b) that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part
thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) ...
Explanation : In the calculation of the means of the judgment debtor for the purposes of clause (b), there shall be left out of account any property
which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
(Emphasis supplied)
It can thus be seen that the detention of a Judgment Debtor in civil prison can be ordered under proviso (b) to Section 51 where the Judgment
Debtor has or had, since the date of the Decree, the means to pay the amount of the Decree or some substantial part thereof and refuses or
neglects or has refused or neglected to pay the same.
Thus, the finding about the Judgment Debtor having sufficient means to pay and satisfy the Decree and the consequent, neglect or refusal to do so,
is the sine qua non for an Order directing the detention of the Judgment Debtor in civil prison.
14. On examination of the relevant provisions as aforesaid, it is evident that the detention of a Judgment Debtor in civil prison may be ordered
under different heads for different reasons as under :
(I) Under the substantive provisions of Section 51 read with Order 21, Rule 37 of the Civil Procedure Code where the Judgment Debtor appears
before the Court, shows cause and the Court holds that in spite of having sufficient means, the Judgment Debtor has refused or neglected to pay
the decretal amount.
(II) Under sub-Rule (2) of Rule 37 Order 21 of Civil Procedure Code, where the Judgment Debtor fails to appear in obedience to the notice
under Rule 37(1) of Order 21 of Civil Procedure Code.
(III) Under sub-rule (3) of Rule 41 Order 21, where in disobedience of the Order under sub-rule (2) of Rule 41 of Civil Procedure Code (i.e.
where the Judgment Debtor is directed to appear for being examined as to his property), the Judgment Debtor fails to appear before the Court.
These are all distinct powers available under distinct heads and for different reasons.
15. For the present purpose, a perusal of the impugned Order would clearly show that the learned Executing Court has not exercised any power
under Rule 41(3) of Order 21 of CPC since perhaps that stage has not arrived as the Petitioners are only directed to remain present, for being
examined as to their properties. Such an order, per se, cannot act to the prejudice of the Judgment Debtors and cannot be said to have resulted
into any manifest injustice, as all that the Judgment Debtors are required to do is to remain present for being examined as to their properties which
can only assist the Executing Court in proceeding with the Execution Application. Thus, I am not inclined to interfere with the part of the order
directing the Petitioners to remain present for being so examined.
16. This takes me to the material challenge to the Order under 21 Rule 37 of CPC. Here again, although strenuous attempt was made on behalf of
the petitioner to show that the Judgment Debtors had never made any default, much less wilful default, to remain present before the Executing
Court, what I find is that these considerations would be irrelevant for the present purpose, for the simple reason that the impugned Order is not
based on Rule 37(2) of Order 21 of CPC. In other words, the Petitioners have not been directed to be detained in civil prison on the ground of
disobedience of any notice to show cause against their detention in civil prison. The impugned Order is clearly relatable to the powers available to
the Executing Court under Rule 37 Order 21 of the CPC. The considerations thus will have to be confined to ascertain whether the requirements
of Section 51 of the Act read with the procedural safeguards under Rule 37(1) of Order 21 of CPC have been complied with and satisfied or not.
17. Under Clause (b) of proviso to Section 51 of Civil Procedure Code, where a Judgment Debtor has had since the date of the Decree the
means to pay the amount of the Decree or a substantial part thereof or has refused or neglected to pay the same, he can be committed to civil
prison. In the present case, under the additional Agreement dated 29.05.2010, the Petitioners had furnished the security of the property known as
Acamol"" admeasuring 12,81,000 square metres near Cuncolim Industrial Estate in Village Ambaulim of Quepem Taluka, towards the payment of
Rs.12.26 Crores. The Additional Agreement clearly recites that this security is in addition to the security already given by the Judgment Debtors in
the Agreement for sale and the supplementary Agreement and the security already given under these two Agreements shall be deemed to have
been given under the Additional Agreement ""as if they are given afresh today"". In the order dated 08.03.2016, this Court had noted submission on
behalf of the Petitioners that the title Deeds in respect of the property named ""Acamol"" if required, can be produced by the Judgment Debtor
before the Executing Court. A submission was made that alternatively, the Judgment Debtors would furnish the security of the property known as
Posrem Bhat"" admeasuring 2125 square metres bearing survey no. 201/3 at Sancoale Taluka, Mormugao District, South Goa. According to the
Petitioners, the valuation of the said property namely ""Acamol"" based on the valuation report dated 04.03.2016, was Rs. 13.12 Crores. In the light
of these submissions, by way of an interim relief, this Court had granted stay of the impugned order on condition that the security of the property
namely ""Posrem Bhat"" will be offered and the Executing Court shall pass necessary Orders in respect of attachment and sale of property now
being offered in pursuance of the said Order or of any one of the property known and identified as above, at the option of the Petitioners. This was
only an Order at the interim stage. The parties are at a serious dispute as to the valuation of the property namely ""Posrem Bhat"". They have
produced their own valuation reports which indicate a wide divergence as to the valuation of the property. A perusal of the valuation report dated
04.03.2016 issued by Mahendra Kakule, which is relied upon by the Petitioners, prima facie, shows that the valuation is on the basis of
investment value of the said property and the consequent income which can be derived from the said facility by optimum utilisation of
barge/repairs constructions"". In other words, it can, prima facie, be seen that the valuation is based on the probable income which can be derived if
the property is used for erection of a barge for repairs and constructions. On the other hand, the valuation report produced and relied upon by the
Respondents is on the basis of the current market value/price in which the property is valued approximately at Rs.75 lakhs. Assuming that there
can be a certain amount of divergence between the valuation by two experts, the same cannot be to such a large extent. It can, prima facie, be
seen that this is on account of the fact that the experts/valuers have employed different methods for the valuation of the property namely ""Posrem
Bhat"". If the said property is in a No Development Zone, as claimed by the Respondents, its valuation is bound to be affected. Prima facie, at this
stage, based on the current market price, the valuation is said to be approximately Rs.75 lakhs which would be quite insufficient to satisfy the
award or any substantial part thereof.
18. On behalf of the Respondents/Decree Holders, it was submitted that the Executing Court can be permitted to proceed for attachment and sale
of the property named ""Acamol"" which has already been furnished as security under the Additional Agreement. However, this was not acceded to
on behalf of the Petitioners, inter alia, on the ground that the said property is very huge admeasuring more than 12.80 lakhs square metres. It can
be seen that on one hand, the property namely ""Posrem Bhat"" is insufficient to satisfy the impugned Award or any substantial part thereof, and on
the other hand, the Petitioners have their own reservations for the Executing Court to proceed against the property namely ""Acamol"" and are not
willing for the property namely ""Acamol"" being put to attachment and sale. After the matter was closed for Judgment, the Petitioners produced two
affidavits namely of Bhalchandra Bakhle and Ameet Bakhle showing willingness to offer two shops situated at Mumbai for attachment and sale, for
satisfaction of the impugned Award. In my considered view, this attempt by the Petitioners cannot be said to be bona fide, particularly when they
are not willing to permit the Executing Court to proceed against the property by name ""Acamol"" which is already furnished as security and are now
showing willingness to offer two shops situated, beyond the territorial jurisdiction of the Executing Court and which would require the Decree to be
transferred for execution to the competent Court at Mumbai. Thus, the submissions advanced on the basis of these two affidavits cannot be
accepted.
19. A perusal of Para 22 of the impugned Order shows that the Executing Court has found that ""seriously speaking, there was no reply to the
show cause notice against detention to the civil prison"". A brief reference to the reply would be necessary at this stage. In the said reply, the
Petitioners had initially raised certain preliminary objections about the territorial jurisdiction of the Principal District Judge, North Goa, which does
not survive now in view of the fact that the execution has been transferred to the Court of the Principal District Judge, South Goa. Under the
caption ""Further Objections"", certain contentions were raised about the execution being initiated at a premature stage as the Award passed by the
Arbitrator was subject matter of challenge before this Court. That also does not survive now, inasmuch as AUA no. 1/2015 and the review
application have been disposed of confirming the Award. Under the caption ""Reply on merits"", certain contentions are raised with regard to some
representations and misleading statements made by the Respondents in the Petition under Section 9 of the Act. The said reply further mentions that
It is no where recorded in the Order sought to be relied upon by the Decree Holder that the Judgment Debtor did not have rights or interest in
Acamol"" property."" It further recites that ""At the relevant time, there were certain difficulties with regard to the properties that were being faced
which are no longer existent today."" Thus, there is nothing in the reply to show that any acceptable cause was shown against an Order for detention
in civil prison. It was in this context that the Executing Court has said that seriously speaking there was no reply to the show cause against detention
in civil prison. The Executing Court, in para 43 of the impugned Order, has held as under :
It has been borne out from the records that the judgment-debtors have been playing on words to avoid the execution of the award in favour of the
decree-holders by raising one objection or the other. It is apparent therefore that the judgment-debtors have the means and are still refusing to pay
entitling therefore the decree-holders to the relief seeking their arrest and detention in civil prison.
It has been further held that the Judgment Debtors have failed to show cause in terms of Order 21, Rule 37 of CPC against their detention in civil
prison. Therefore, the Decree holder would be entitled to an Order for detention of the Judgment Debtors in civil prison. I am unable to hold that
the findings so recorded and the discretion so exercised, can be said to be perverse or arbitrary requiring interference by this Court.
20. Before concluding, it would be necessary to advert to the nature of the challenge to the impugned Order. The Petition is filed under Article 226
read with Article 227 of the Constitution of India. It is well settled that a writ under Article 226 of the Constitution of India would not issue, against
an Order passed by a Civil Court of plenary jurisdiction (as in the present case), in a dispute arising between private parties, which is of a
contractual nature. (See the case of Shalini Shyam Shetty & anr v. Rajendra Shankar Patil reported in (2010) 8 SCC 329). Thus, the
challenge has necessarily to be examined in the context of the supervisory jurisdiction available under Article 227 of the Constitution of India which
has to be exercised in order to ensure that ""inferior Courts and Tribunals"" are kept ""within the bounds of their authority."" The Petition under Article
227 of the Constitution of India is not an Appeal in disguise. Thus, unless and until it is shown that the findings recorded are perverse and/or the
sub-ordinate Court has assumed jurisdiction not vested in it or failed to exercise jurisdiction vested or that there is material irregularity in the
exercise of jurisdiction, resulting into manifest injustice, no interference is called for. None of these circumstances or grounds exist in this case.
21. In the result, I find that the Petition is without any merit and it is accordingly dismissed. Rule is discharged with no Order as to costs.