JUDGMENT
The Court
1. Both the aforesaid applications are similar in nature and between the similar set of parties. Both are indebted to National Small Industries Corporation Limited creditor hereunder.
2. On 5th May, 1986, a decree was passed in the Ordinary Original Civil Jurisdiction of High Court at Calcutta as against both the debtors hereunder. The insolvency applications as above are in the nature of execution of such decree as against such debtors.
3. The applications were made on 26th June, 1998 basically with similar nature of statements which are as follows :–
“…..(a) The said Rajanlkant Hlmmatlal Kampanl and Sudarshan Ral
were served a notice under section 9(3) of the Presidency Towns insolvency Acts (Act 3 of 1909) in the prescribed form and served under registered cover both their respective present residential address and also at their business place at No. 11 Pollock Street, Calcutta within the aforesaid Jurisdiction specifying the amount due under the Decree dated 5th day of May, 1986 and requiring the Debtors to pay the same or to furnish security for the payment of such amount to the satisfaction of the petitioner or its agent. Such notice was served on Rajanikant Himmatlal Kampanl by registered post on or about 30th March, 1998 a copy of the said letter dated 27th March, 1998 is annexed Hereto and marked with the letter “A”. The Debtors had incurred the debt as partners of Sun Zippers (P) Ltd.;
(b) By the said letter, a sum of Rs. 7,94,964.24 was specified to be the amount payable by the decree with further Interest on the principal sum of Rs. 6.66,002.60P. at the rate of 6% per annum from the date of the decree and it was further mentioned that a period of not less than one month was specified after the service of the notice on the debtor within which the requisition had to be complied with and the consequences of non-compliance was also mentioned.
The Debtor have not complied with the requisition contained in the notice within the period mentioned in the said notice and as such, have committed an act of insolvency as provided in section 9(2) of the Presidency Towns Insolvency Act, 1909…..”.
4. It appears from the sale annexure to the petition that the petitioner’s Advocate served notice to the debtors on behalf of the creditors on 27th March, 1998 under section 9(3) of the Presidency Towns Insolvency Act, 1909 requiring their payment of the decretal amount etc. within 30 days from the date of receipt of the notice and for satisfaction of the Court. Subsection (3) of section 9 of the Presidency Towns Insolvency Act, 1909, speaks as follows :–
An insolvency notice under sub-section (2) shall-
(a) be in the prescribed form; (b) be served in the prescribed manner; (c) specify the amount due under the decree or order and require the debtor to pay the same or to furnish security for the payment of such amount to the satisfaction of the creditor or his agent; (d) specify for its compliance a period of not less than one month after its service on the debtor or, if it is to be served on a debtor residing, whether permanently or temporarily, out side India, such period (being not less than one month) as may be specified by the order of the Court granting leave for the service of such notice; (e) State the consequences of non-compliance with the notice.
5. Sub-section (2) basically gives some power to the creditor or creditors when he or they are forfited with decree or order against any debtor or debtors for payment of momey making insolvency applications for the purpose of appropriate adjudication.
6. However, such notice was received by the respondents/debtors. But they have not given any reply to set aside the Insolvency notice which a defaulting party may do upon being called by such notice under sub-section (5) of section 9 of the Presidency Towns Insolvency Act. The grounds, as taken by the petitioner, are made under the notice dated 27th March, 98 Itself. Accordingly to the petitioner since no such reply has been communicated by the respondents /deb tors as aforesaid Jointly or severally, the respondents/deb tors, in effect, admitted the claim.
7. In other words, acts of insolvency are complete.
8. On the basis of the apprehension on the part of the petitioner which might be taken up by the respondents/debtors as defence, the petitioner has argued at length basically about the applicability of the Limitation Act in this respect, apart from the aforesaid grounds.
9. Mr. A.C. Kar, learned counsel appearing in support of the petitioner has drawn my attention to the Article 136 of the Limitation Act. 1963 to
show that for the purpose of execution of decree 12 years period is made for making execution application from when the decree or order becomes enforceable or for any other purpose which according to this Court, not relevant for the purpose.
10. Mr. Kar has stressed the word ‘enforceable’. According to him, the decree does not become enforceable unless it is signed by the Judge both under Code of Civil Procedure as well as High Court rules. In the Instant case, decree was signed on 11th January, 1996 by the learned Judge. Therefore, decree becomes enforceable from the date of the signature and 12 years will run from such period alone. He further stated that the signature of the decree by a Judge is pre-requisite. Unless it is signed, decree cannot become operative. He has drawn my attention to Chapter XVI Rule 1, 4 & 10 of the Calcutta High Court, Original Side Rules where from I get the process of drawing up and completion of decree or order by the department of this Court. It appears that there is a process of drawing up and completion of a decree under Rule 10 as aforesaid, it is crystal clear that the decree shall, upon application in the prescribed manner be drawn up in the office of the Registrar, and be singed by the Registrar or Master and by the Judge, and be sealed with the seal of the Court, and shall bear the same date as the judgment in the suit
11. Mr. Kar the learned counsel has drawn my attention to a reported Judgment (Shankar Balwant Lokhando v. Chandrakant Shankar Lokhande & Anr.) In its paragraph 12 to draw a necessary Implication on the basis of the ratio of the Judgment In the aforesaid paragraph that limitation does not be gain to run from the date when direction is given to pass final decree. Mere giving of direction to supply stamped paper for passing final decree does not amount to pass a final decree until the final decree determining the rights of the parties by metes and bounds Is drawing up and engrossed on stamped paper/s supplied by the parties, there is no executable decree. Incidentally, I have to Indicate herein that the said decree was passed in a partition suit.
12. By showing such judgment, the petitioner contended that if the statute say signature of the Judge is must then it is judicial function but not any administrative function. Unless there is no signature on the decree party or parties have no access to proceed on the basis of such decree.
13. He also relied upon a single Bench Judgment of this Court reported in 1996(2) CLJ 61 (West Bengal Essential Commodities Corporation v. Swadesh Agro Farming & Ors.) wherein the ratio of such Supreme Court Judgment as also was followed. It was held therein that the word ‘enforceable’ as used in Article 132 of the Limitation Act, 1963 should be read with due regard to the fact that the Legislature does not use any word for frivolity and the said word makes It clear that the decree is required to be expressed on an acceptable paper, which in the common parlance is known as drawing up of a decree and only then It would become enforceable.
14. Mr. Kar further contended that such drawing up and completion of th decree is not an administrative action for the purpose of obtaining certified copy alone, but for the purpose of making it enforceable so that
execution can be preceded. Therefore, the same ought to be part and parcel of judicial function.
15. Mr. Ranjan Deb learned counsel appearing In support of the res pendents/debtors contended that five dates are very Important. Firstly, the decree was passed as far back as on 5th May, 1986. The decree was signed by the concerned Judge on 11th January, 1996. The notice under section 9(3) of the Presidency Towns Insolvency Act 1909 was dated 27th March. 1998. The application was verified by the deponent on 25th June, 1998 and then the same was filed by the Court on 26th June. 1998. Therefore, due diligence on the part of the petitioner has to be looked into by this Court.
16. He has drawn my attention to section 33 of the Code of Civil Procedure which says that the Court, after the case has been heard, shall pronounce Judgment, and on such judgment a decree shall follow.
17. Therefore, he also draw my attention to Order 20 Rule 7 of the Code of Civil Procedure which prescribes that the decree shall bear date the day on which the judgment was pronounced and, when the judge has specified himself that the decree has been drawn up in accordance with the Judgment, he shall sign the decree. Therefore, if the decree signed on any subsequent date after being drawn up that day relates back to the date of judgment.
18. According to him, Judgment was passed following the principle of Order 8 Rule 5(2) read with Rule 4 of the Code of Civil Procedure i.e. on the basis of the plaint alone.
19. Under Order 21 Rule 11(1) as well sub-rule 2 & 3 proscribe for Immediate execution in case of decree arising out of payment of money. Such application either may be oral or may be written under tabular statement, but expeditious proceeding for Immediate execution is needed. He stated further that under sub-rule (3) as above, the Court to which an application is made under sub-rule (2) I.e. written application under tabular statement etc. may require, the applicant to produce a certified copy of the decree. He also stated Original Side Rules of the High Court at Calcutta under Chapter XVI Rule 1, 4 as well as 11 also gives an idea with regard to similar principle for drawing up and completion of a decree. However, the Article 136 of the Limitation Act as prescribed period of 12 years from when become enforceable is negatived by Order 21 Rule 11 (3) of the Code of Civil Procedure where it is stated the Court may require the applicant to produce a certified copy of the decree. Therefore, having a drawn up and certified copy of the decree is not mandatory for the purpose of making execution application. Moreover, there is no scope of extension of such period in case of execution. According to him. power of the Court is 12 years either from the date of decree or from the date of default simplicltor.
20. In this context, he relied upon
(Sri Chandra Moult Deva v. Kumar Binoya Nand Singh & Ors.) wherein a Dvislon Bench of such Court held that decree comes into existence as soon as the judgment is pronounced and not on the day when it is sealed and signed. In accordance with section 33 and Order 20 Rule 6 & 7 the decree shall bear the date on which the Judgment was pronounced. It is on account of this legal fiction contained in this rule that the date of decree relates back to
the day on which the Judgment was pronounced. According to the Division Bench, the time required or preparation of formal decree cannot be excluded for the purpose of Article 136 of the Act. Tills proposition, however, is subject to the condition that the decree for realisation of money or any part thereof has been ascertained in this Judgment. In case of whole or any part thereof has been mentioned in the judgment then the whole of the decree or part of the decree, as the case may be. becomes enforceable immediately on pronouncement of Judgment. But where the amount decree or any part thereof has to be ascertained subsequent to the pronouncement of the judgment then the whole or part of the decree which has to be ascertained remains in abeyance till the amount is ascertained. Unless an order is made by the Court to produce certified copy of the decree execution has to proceed on the basis of the decree Itself In view of the Order 21 Rule 11(1), (2), (3) and Order 20 Rule 6 of the Code of Civil Procedure.
21. Next he cited a Judgment reported In (Biswapati Dey v. Kenrisington Stores & Ors.) in its paragraph 10, in appears that a single Bench of this High Court held that Article 136 of the Limitation Act of 1963 has set a new deadline beyond which no application for execution of the decree can be made. The period of 12 years is long enough to execute a decree when It is enforceable and the Intention of the legislature is quite apparent from the language used therein that the time to make the execution application is 12 years from the time when the decree or order becomes enforceable. Chapter XVII Rule 10 of the Original Side Rules of the Calcutta High Court come into play actually at the time of executing the decree through an execution application before the Original Side of Calcutta High Court and not before that although the decree might be enforceable on the day it is passed that is the distinction between the said two expressions viz “to excute” and “to enforce”. Accordingly, Chapter XVII Rule 10 cannot stand in the way of the language used in the third column of Article 136 of the Limitation Act, of 1963.
22. Further, he cited 1976 CHN 403 (Sunderlal & Sons v. Yagendra Nath Singh & Ors.) wherein a single Bench of this Court held in paragraph 3 therein that where the nature of the decree was such that it was Immediately executable the starting point of limitation would be the date of passing of the decree and not when the certified copy of the decree was obtained as was required by Chapter XVII Rule 10 of the High Court Rules. The legislative Intent on this aspect is manifest by the fact that the legislature has chosen not to exclude the. period of time taken for obtaining the certified copy for the purpose of execution under section 12 of the Limitation Act. In the face of such specific exclusion for certain other specified purpose in the different categories of exclusion, to exclude the time for obtaining certified copy for execution proceeding would be going contrary to the express legislative Intention. The language of Article 136 of the Limitation Act also does not warrant exclusion of this period. Then he stated that the procedure of execution has to be considered in the light of the Judgment and the decree is acceptable within 12 years from the date of decree.
23. Mr. Deb also distinguished Judgment reported (supra) paragraph 12 which was cited by the petitioner hereunder. He stated that the factual context of the judgment as stated in paragraph 12 is not
applicable in the instant case. The case therein was that the decree was yet to be passed but in the Instant case the decree has already passed. Therefore, Supreme Court Judgment is not applicable in that case. The ratio of the part of the judgment in paragraph 12 of the same has to be read upon going to the factual aspect specially stated in paragraph 1,2,3,4, & 8 of the same. The paragraph 8 of the judgment says that after passing a prlllmlnary decree of partition, the decree cannot be made effective without a final decree. Therefore, until the rights in the final decree proceedings are worked out or till a final decree in that is made, there is no formal expression of adjudication conclusively determining the rights of the parties with regard to the properties for partition in terms of the declaration of shares so as to entitled the party to make an application for execution of the final decree. Therefore, the ratio of the Judgment should be considered on the back-drop of the above factual aspect and cannot have any application in the present context.
24. In reply, Mr. Kar has drawn my attention to various other important technical aspects to strengthen his argument as already made and also to meet the distinguishing feature of the arguments made by Mr. Deb. He has drawn my attention to Order 49 Rule 3 of the Code of Civil Procedure and stated that basis of the same Order 20 Rule 7 will not be applicable in the chartered High Courts. According to him. Rule 1, 4 & 10 under Chapter XVI of Original Side Rules are only the avenues for the purpose.
23. He further conteneed that there Is a change in the Limitation Act Old Limitation Act being Act of 1908 prescribes that the period of execution of decree or order of any Civil Court is 3 years from the date of decree or order which has been substantially changed under New Act i.e. Act of 1963 in its Article 136 by replacing the period as 12 years for the execution of the decree or order of any Civil Court from when the decree or order becomes enforceable. The Supreme Court judgment as above was relied upon for the reason that when statutory compliance is for administration of justice or when for justice but the non-compliance of statute is existable. Therefore, any contradictory view of the High Court is not at all a good law now after such judgment as (supra). In addition thereto, he stated that the partition or no partition or putting of stamps etc. might have been administrative work but the judicial act is signing of the judgment. Therefore, the ratio of the Supreme Court judgment is squarely applicable in this case.
26. Incidentally, he reiterated, In addition to the above points, that there is no scope of agitating any point of demurer at this stage since there Is no reply to the notice of insolvency prescribed under section 9(5) of the Presidency Towns Insolvency Act.
27. The arguments put forward by the parties have turned to a very interesting decisive factor. According to me, material part of conclderatlon is the diligence of the party applying for insolvency action. Therefore, I have . to take up the certified copy of the decree first. It appears to me that the decree was admittedly passed on 5th May, 1986 and the same was signed by the Judge as on 11th January, 1996. Therefore there is a gap of almost ten (10) years. Hence one has to come to a finding on the basis of the appropriate factual as to what step the petitioner has taken immediately
after passing of decree as for back as on 5th May, 1986. If the application for drawing up and completion of the decree is made within the prescribed period Immediately after passing of such decree, running of time for the purpose of limitation will step automatically because the drawing up and completion of the decree is part and parcel of Issuance of certified copy in the Original Side. Therefore, no matter as to whether the application for certified copy was made as on 1st February, 1996 only after signing of the judgment and order passed by a Judge of this court as on 11th January, 1996. But if no such application for drawing up and completion of the decree is made within the prescribed period and the party waited for long time and applied for certified copy when the signature in the decree was only made on 11th January, 1996 to make the decree effective for the purpose of execution is not acceptable as to the true connotation of Article 136 of the Limitation Act, 1963 for the purpose of making it enforceable. I do not find when such application was made for the purpose of drawing up and completion of the decree, but I only got date of making application for certified copy as on 24th January, 1996. Moreover, the petitioner has not made out such case about drawing up and completion of the decree. Hence, following the principle i.e. vigllanttbus at non derntenti bus jura subventunt meaning thereby the law helps those who are alert and not those who sleep on their rights, I hold against the petitioner.
28. Now, let me consider the other part of the argument as raised by the parties herein. According to the petitioner, the decree becomes enforceable only when decree or order is signed by a Judge and, therefore, although decree was passed as far back as on 15th May, 1986, but since it is signed by a Judge of this Court as on 11th January, 1996 the application then only become enforceable. To analyse this aspect of the judgment, I have considered the scope and ambit of the Original Side Rules, Code of Civil Procedure as well as earlier Judgments In this respect. I cannot confine myself alone in respect of the Judgment reported In (supra) alone which is basically made, under altogether a different factual aspect far from this case. Order 21 Rule 11 of the Code of Civil Procedure prescribes about application for execution of the decree and order whereunder Court may require the applicant to produce a certified copy of the decree. Court is not debarred from taking such principle in view of any embargo under Order 49 of the Code applicable in the Original Side. Although the word ‘shall’ is available under Chapter XVII Rule 10 of the original Side Rules but in view of the single Bench Judgment of this Court reported in 1976 CHN 403 (supra) decree Is Immediately executable I.e. starting point of limitation would be the date of passing of the decree and not when the certified copy of the decree was obtained as was required by Chapter XVII Rule 10 of the High Court Rules. According to (supra) Chapter XVII Rule 10 of Original Side Rules come Into play at the time of execution which cannot stand in the way of the language used in the third coloumn of Article 136 of the Limitation Act, 1963. There is a distination between the said two expressions viz,. “to execute” and “to enforce”. The case of the petitioner is to enforce. It should be because the nature of the application is for insolvency which is independent process unlike the usual execution application which are deriving from the decree itself. Therefore, such application cannot be regarded as an execution
application under Chapter XVII Rule 10 or other provisions under Original Side Rules. It is a proceeding to adjudicate where one is Insolvent or not like winding up application in company matters. It is a tactical approach to use as weapon of execution but the Insolvency petition cannot be regarded as execution application either in the “Original Side Rules” or in the “Code of Civil Procedure”. Such application can be made even without having of a decree or order of an appropriate Court of law Independently. Therefore, the rigidity of the procedural law as ‘to execute’ cannot be available for making insolvency petition. At best question ‘to enforce’ can be considered and the same is considered.
29. Moreover, an Insolvency petition Is to be made as early as possible from the date of the decree to establish before the Court of law as to whether the party is solvent enough to pay the decretal amount or not. Insolvency petition, if made, after 14 years of passing of decree one can become solvent or insolvent by the passage of time. Hence one has to be adjudged independently at the time of making such application Irrespective of passing of decree. If one is supported by a decree he can get additional benefit provided other laws are applicable in his favour. Therefore, an application in the form of insolvency petition cannot be regarded as a continuation of the decree in the form of a regular execution application but an independent approach before the Court like many others. Hence, enforceability is only the question and since several Division and single Benches had proceeded on the principle that the enforceabillty come from the date of decree lone single Bench Judgment following the different factual aspect under a Supreme Court Judgment cannot be regarded as settled principle for the purpose computation of the date of the decree In respect of money claim from the date of signature of a Judge on the decree to enhance the period. Moreover those judgments are based on different facts and to the question of execulability but not to the question of enforclabllity Independent from the mode of execution.
30. The petitioner has also taken a technical plea that Order 20 Rule 7 of the Code of Civil Procedure Is not applicable to the Original Side of the Chartered High Courts in view of the Order 49 Rule 3 of the Code Itself. But similar principle Is available tn the Original Side Rules itself in Chapter XVI Rule 4. Such rules speaks that every Judgment shall be dated as of the day on which the Judgment was pronounced ….. Hence, there cannot
be any embargo on such technical plea on the contrary the exposure is much were explicit.
31. Above all, signature of the decree In the instant case cannot alter the signature which passed earlier in a Judicial proceeding but the same can be compared deparunentally through the administration of the Court only in respect of mistaken part to rectify it by putting a signature of a Judge even after signature put forward by a Registrar/Master of the Original Side of the High Court. Such signature obviously a part of administrative action. At the time of such administrative action if the concerned Judge find that there is any material defects or it is pointed out by either of the party or by Registrar or Master, the Judge concerned signing the decree under administrative power can bring the matter to the judicial side to rectify the same accordingly. In that case alone, the decree can be said to be post-
dated but not otherwise which is the proper import of the Chapter XVI Rule 4 of the Original Side Rules of the Court itself.
32. Lastly the petitioner has taken a point of demurer since there is no reply to the notice of the petitioner under section 9(3) of the Presidency Towns Insolvency Act. But according to me such part is not very material since the Court has decided the question of law and entitled to decide such question of law irrespective of taking such point in the reply of the notice. Therefore, such attempt on the part of the petitioner is futile attempt.
33. Accordingly, I see no reason as to why the application will be allowed to proceed and will not be dismissed for the grounds above. Hence, the application stands dismissed. However, no order is passed as to costs. This order will govern both the Insolvency Case No. 1/1998 and Insolvency Case No. 2/1998.
The parties are entitled to have a signed copy minute of the operative part of the Judgment.
34. Application dismissed