IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29580 of 2009(O)
1. M.RAJEEV, NALINI NIVAS,
... Petitioner
Vs
1. K.C.AJITH, GOVINDA SADAN,
... Respondent
For Petitioner :SRI.V.PREMCHAND
For Respondent :SRI.K.RAJESH SUKUMARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/08/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P.(C) No.29580 of 2009
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Dated this the 3rd day of August, 2010
JUDGMENT
In the year 2006 respondent obtained a decree against
petitioner for realisation of Rs.16,00,000/- with interest which at
the time respondent launched E.P.358 of 2008 swelled into more
than Rs.18,00,000/- with liability to pay further future interest.
At that time there was an agreement between petitioner and the
respondent evidenced by Ext.P3 as per which respondent was to
withdraw certain amount deposited by petitioner in five cases
filed by the respondent under Section 138 of the Negotiable
Instruments Act. It was also agreed that petitioner shall pay the
amount in 90 equal monthly installments of Rs.20,000/- each
aggregating to Rs.18,00,000/-. Petitioner was to make payments
to the respondent on the due dates mentioned in Ext.P3,
agreement. Alleging that terms of the agreement are not
complied respondent filed E.P.No.358 of 2008 and sought
personal execution against petitioner. Executing Court after
considering materials on record came to the conclusion that
petitioner, having means has neglected or refused to pay the
W.P.(C) No.29580 of 2009 2
amount due under the decree and issued warrant of arrest.
Ext.P4 order to that effect is under challenge. Learned counsel for
petitioner contends that there was no willful laches on the part of
petitioner in paying the amount due under the decree. According
to the learned counsel, petitioner did not pay the amount since
respondent did not comply with his part of Ext.P3, agreement. It
is also contended by learned counsel that after Ext.P4, order
petitioner had filed Ext.P5, application to recall the warrant where
it was contended that petitioner has no means to pay the
amount. In the circumstances, order is bad in law. Learned
counsel for the respondent contends that apart from Ext.P3,
agreement three other agreements (produced along with the
counter and marked Exts.R1, R2 and R4) were also executed
between the parties all of which have been violated by petitioner
and hence respondent is entitled to proceed with execution of the
decree. It is also contended by learned counsel that there was no
contention raised by petitioner before Ext.P4, order was passed
that he has no means to pay the amount.
2. On the contention whether petitioner is entitled to
continue to pay the amount in terms of Ext.P3, agreement it is
W.P.(C) No.29580 of 2009 3
seen from Ext.P4, order that Executing Court has entered a
finding that petitioner has not complied with the conditions
regarding payment of the amount stated in Ext.P3. That, the said
amounts were not paid before due dates as stated in Ext.P3 is
not disputed by the learned counsel for petitioner as well.
Learned counsel for the respondent argues from Exts.R1, R2 and
R4 that it is in the light of the said agreements to be entered into
that petitioner and respondent executed Ext.P3 agreement.
Petitioner has violated Exts.R1, R2 and R4 agreements. As
pointed out by the executing court, and, as revealed from
Exts.R1, R2 and R4, petitioner has not complied with the terms
and conditions of the said agreements and hence there is nothing
illegal in respondent proceeding with execution of the decree.
3. So far as the finding of the executing court as to means
of petitioner is concerned, it is true that no evidence was
recorded. But I must bear in mind that petitioner had not dispute
the case of respondent that he has means. Claim regarding no
means came only after Ext.P4, order was passed and when
petitioner filed Ext.P5, application to recall the warrant. Certainly
that was not the the appropriate time when a plea of no means
W.P.(C) No.29580 of 2009 4
should and could have been raised by petitioner. Moreover, in the
light of Exts.P3, R1, R2 and R4 petitioner cannot contend that he
has no means. It is revealed from Exts.R1 and R2 that petitioner
is engaged in business. In the circumstance, finding of the
Executing Court that petitioner has means does not require
interference.
4. Petitioner has an argument that there was no willful
laches on his part in paying the amount. Once means is proved
and, there is non payment of the amount it is possible to infer
that there is neglect or refusal to pay the amount. If that be so,
it is idle for petitioner to contend that there was no willful laches
to pay the amount. Having heard counsel on both sides and gone
through the order under challenge as well as the materials placed
before me, I do not find reason to interfere with the order under
challenge.
5. Learned counsel for petitioner stating that even after the
impugned order, certain amounts have been paid by petitioner
requested that petitioner may be permitted to pay the balance
amount due in installments. I make it clear that it is open to the
petitioner to make such a request in the Executing Court and in
W.P.(C) No.29580 of 2009 5
case any such request is made Executing Court shall decide on
that request after hearing counsel for the respondent as well.
Resultantly, with the observation made above, this writ
petition is disposed of .
THOMAS P.JOSEPH, JUDGE
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