this page is retyped and replaced v.c.o....
TRANSCRIPT
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2016
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.32399/2015 C/W W.P.NOS.32400/2015, 32402/2015,
32403/2015, 32404/2015, 32401/2015 & 32405/2015 (GM-CPC) W.P.NO.32399/2015:
BETWEEN:
PAFCO 2916 INC. C/O PEGASUS AVIATION
FINANCE COMPANY HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO
CA 94111, REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO
... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
AND:
KINGFISHER AIRLINES LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES
ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS
NO.24, VITTAL MALLYA ROAD BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR
... RESPONDENT (BY SRI.RAJESH S.V, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 29.4.2015 VIDE ANNEXURE-L PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO
AMEND THE EXECUTION PETITION IN EXECUTION CASE NO. 1267/2014 AND 1274/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION
IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN
ACCORDANCE WITH LAW.
R
This page is retyped and replaced V.C.O. dtd.30.11.2016
2
W.P.NO.32400/2015:
BETWEEN:
PAFCO 2919 INC. C/O PEGASUS AVIATION
FINANCE COMPANY HAVING ITS PRINCIPAL PLACE
OF BUSINESS AT FOUR EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO
CA 94111, REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
AND:
KINGFISHER AIRLINES LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD BENGALURU-560 001
REP. HEREIN BY ITS DIRECTOR ... RESPONDENT
(BY SRI.RAJESH S.V, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-L PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, IN EXECUTION CASE NO. 1268/2014
AND 1276/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION IN
WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW.
W.P.NO.32402/2015:
BETWEEN:
AWAS IRELAND LEASING THREE LIMITED HAVING ITS PRINCIPAL PLACE
OF BUSINESS RIVERSIDE ONE, SIR JOHN ROGERSON’S
QUAY, DUBLIN 2, IRELAND REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO
... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
AND:
UNITED BREWERIES (HOLDINGS)
This page is retyped and replaced V.C.O. dtd.30.11.2016
3
LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD BENGALURU-560 001
REP. HEREIN BY ITS DIRECTOR ... RESPONDENT
(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, AND RESTORE THE SAID
EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH LAW.
W.P.NO.32403/2015:
BETWEEN:
PAFCO 2916 INC. C/O PEGASUS AVIATION FINANCE COMPANY
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR
EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO CA 94111, REP. BY ITS POWER OF ATTORNEY
HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV.)
AND:
UNITED BREWERIES (HOLDINGS) LIMITED A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS
NO.24, VITTAL MALLYA ROAD BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR
... RESPONDENT (BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX
ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO AMEND THE EXECUTION PETITION IN EXECUTION CASE NO. 1274/2014 AND 1267/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT
This page is retyped and replaced V.C.O. dtd.30.11.2016
4
THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW.
W.P.NO.32404/2015:
BETWEEN:
AWAS IRELAND LEASING THREE LIMITED HAVING ITS PRINCIPAL PLACE OF BUSINESS RIVERSIDE ONE,
SIR JOHN ROGERSON’S QUAY, DUBLIN 2, IRELAND REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO
... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
AND:
UNITED BREWERIES (HOLDINGS) LIMITED, A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD
BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR
... RESPONDENT
(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV.,)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, AND RESTORE THE SAID EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH
LAW. W.P.NO.32405/2015:
BETWEEN:
PAFCO 2919 INC. C/O PEGASUS AVIATION FINANCE COMPANY
HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR
EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO CA 94111, REP. BY ITS POWER OF ATTORNEY
HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
This page is retyped and replaced V.C.O. dtd.30.11.2016
5
AND:
UNITED BREWERIES (HOLDINGS) LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES
ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD
BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR
... RESPONDENT (BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO AMEND THE EXECUTION PETITION IN EXECUTION CASE NO.
1276/2014 AND 1268/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION
IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW. W.P.NO. 32401/2015:
BETWEEN:
J.B. 2443 INC.
C/O CORPORATION SERVICE COMPANY, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 2711, CENTERVILLE ROAD,
SUITE 400, WILMINGTON DELAWARE 19808 REP. BY ITS POWER OF ATTORNEY
HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER
(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)
AND:
UNITED BREWERIES (HOLDINGS) LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD BENGALURU-560 001
REP. HEREIN BY ITS DIRECTOR ... RESPONDENT
(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
This page is retyped and replaced V.C.O. dtd.30.11.2016
6
THE IMPUGNED ORDER DATED 29.4.2015 ON I.A. II VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, (CCH-18) AND RESTORE THE SAID EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH LAW.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
All these writ petitions relates to execution of
decrees obtained by the decree holder in the Court of
United Kingdom. Since common questions of fact and
law are involved, they are heard and disposed of by this
common order.
2. Facts in brief which has led to filing of these
writ petitions are as follows:
RE: W.P.Nos.32399/2015 & 32403/2015
Decree holders in these two writ petitions having
obtained judgment and decree against respondents –
judgment debtors on 13.12.2013 by High Court of
Justice, Queen’s Bench Division, Commercial Court,
Royal Court of Justice have filed two Execution petitions
namely, Execution Petition Nos.1267/2014 and
7
1274/2014 before City Civil Court, Bengaluru. The
original judgment and decrees came to be modified
during the pendency of execution petitions. Hence,
applications for amendment came to be filed in these
two execution petitions seeking for amendment namely,
to amend the amounts mentioned in the respective
executive petitions. Applications for amendment of
executive petitions came to be opposed by both the
judgment debtors. At the time of hearing of these
amendment applications, Executing Court suo motu
raised the issue of maintainability of these execution
petitions i.e., Execution Petition Nos.1267/2014 and
1274/2014 since said judgment and decree passed
against Kingfisher Airlines Limited as well as United
Breweries (Holdings) Limited was one and the same.
After hearing the learned Advocates appearing for the
parties, Executing Court by impugned orders has
arrived at a conclusion that since the amount claimed
in both the Execution Petition Nos.1267/2014 and
1274/2014 are one and same and decree holder having
filed two Execution Petitions viz., 1268/2014 and
8
1276/2014 which relates to same transaction, decree
holder with an intention to recover double the decretal
amount, directed the decree holder to amend Execution
Petitions Nos.1267/2014 and 1274/2014 so that its
claim in both the petitions should not exceed the
amount due to the decree holder under the transaction
in which decree holder has obtained two (2) separate
decrees. In other words, it has been held that decree
holder has to restrict its prayer as against jointly and
severally liability fixed under the decrees, though it has
been held that two execution petitions i.e., Execution
Petition Nos.1267/2014 and 1274/2014 are
maintainable.
RE: W.P.Nos.32400 & 32405/2015: 3. Decree holder under these two writ petitions
having obtained a Judgment and decree against
respondents - Judgment debtors on 13.12.2013 by High
Court of Justice, Queen’s Bench Division, Commercial
Court, Royal Court of Justice have filed two execution
petitions namely Execution No.1268/2014 and
9
Execution Petition No.1276/2014 against Kingfisher
Airlines Limited and United Breweries Holdings Limited
before City Civil Court, Bengaluru. The original
judgment and decrees came to be modified during the
pendency of execution petitions. Hence, applications for
amendment came to be filed in these two execution
petitions seeking for amendment namely, to amend the
amounts mentioned in the respective executive
petitions. Applications for amendment of executive
petitions came to be opposed by both the judgment
debtors. At the time of hearing of these amendment
applications , Executing Court suo moto raised the issue
of maintainability of these execution petitions i.e.,
Execution Petitions Nos.1268/2014 and 1276/2014
since judgment and decree passed against both
judgment debtors are one and same. After hearing the
learned Advocates appearing for the parties, Executing
Court by impugned orders has arrived at a conclusion
that since the amount claimed in both the Execution
Petition Nos.1268/2014 and 1276/2014 are one and
same and decree holder having filed two Execution
10
Petitions viz., 1267/2014 and 1274/2014 which relates
to same transaction, decree holder with an intention to
recover double the decretal amount, directed the decree
holder to amend Execution Petitions Nos.1268/2014
and 1276/2014 so that its claim in both the petitions
should not exceed the amount due to the decree holder
under the transaction in which decree holder has
obtained two (2) separate decrees. In other words, it
has been held that decree holder has to restrict its
prayer as against jointly and severally liability fixed
under the decrees, though it has been held that two
execution petitions i.e., Execution Petition
Nos.1267/2014 and 1274/2014 are maintainable.
RE: W.P.NO.32401/2015, 32402/2015 AND W.P.32404/2015 4. Decree holders in these three writ petitions has
filed three (3) Execution Petitions Nos.1272/2014,
1273/2014 and 1275/2014 for enjoying the fruits of
judgment and decrees obtained by them from High
Court of Justice Queen’s Bench Division, Commercial
Court, Royal Court of Justice on 13.12.2013. Said
11
judgment and decrees came to be modified by the Court
which originally passed the judgment and decrees.
Hence, decree holders in these three (3) execution
petitions filed applications for amendment of the
execution petitions namely, decree holders sought for
incorporating the modified decretal amounts in the
pending execution petitions, contending interalia it is a
subsequent event. Said applications for amendment
came to be opposed by the judgment debtors in all three
(3) execution petitions by filing detailed objections. At
the time of considering these applications for
amendment, Executing Court suo moto raised the issue
of maintainability namely, as to how two (2) execution
petitions i.e., one against principal borrower and
another against guarantor based on same judgment and
decree is maintainable and heard the learned
Advocates. It came to be held by the Executing Court
that the decree holder has filed two execution petitions
i.e., against the principal borrower and guarantor
separately and as such decree holder would be
recovering twice the decretal amount and as such
12
decree holder cannot proceed against both the judgment
debtors simultaneously and if permitted to continue
there is chance of misuse and it may not be possible for
the Executing Court to ascertain as to how much
amount has been paid to the decree holder if two
petitions are continued. By recording such finding,
execution petitions filed by decree holders in Execution
Petition Nos. 1272/2014, 1273/2014 and 1275/2014
came to be dismissed as not maintainable.
5. It is the contention of Sri.Kevic Setalvad,
learned Senior counsel appearing for petitioner/decree
holder that judgment of Apex Court in
S.P.Chengalvaraya Naidu (dead) by LRs Vs Jagannath
(dead) by Lrs and others reported in [(1994) 1 SCC 1]
AIR 1994 SC 853 has been erroneously held as
applicable to the facts on hand, inasmuch as, in the
said case respondent therein had obtained a
preliminary decree from the Court without disclosing
certain vital facts to the Court which the respondent
was bound to disclose. Whereas such factual aspect
13
was not present in the instant case and it had failed to
note that the liability of the guarantor was co-extensive
with that of principal debtor and as such, judgment
debtor/s were liable to pay the decretal amount and as
such decree holder was entitled to independently
proceed against guarantor and principal debtor. Hence,
he contends Executing Court erred in directing the
decree holder to restrict the claim by amending the
execution petition so that claim in both the petitions
would not exceed the decretal amount though there are
two separate decrees. It is also contended that there is
no bar under any law which prevents the decree holder
from claiming decreetal amount under separate decrees
from the Principal debtor and guarantor and in support
of his submission has relied upon the Judgment of
Bombay High Court in the case of Jagannath
Ganeshram Agarwala Vs Shivnarayan Bhagirath and
others reported in AIR 1940 Bombay 247 which is to
the effect that liability of a surety is co-extensive, but is
not in the alterative and as such both principal and
surety would be liable at the same time to the creditors
14
and hence, Executing Court could not have directed the
decree holder to amend execution petitions which would
in effect result in decree holder restricting the claim in
execution petition contrary to the decree obtained by it.
He would also rely upon the Judgment of Division
Bench of this Court in the case of The Hukumchand
Insurance Co. Ltd., Vs The Bank of Baroda and
others reported in AIR 1977 Kar 204 whereunder it
has been held that liability of a principal debtor and
liability of a surety is co-extensive with that of the
former are really separate liabilities although arising out
of the same transaction and two liabilities are separate
and distinct. Hence, he would contend that liability of
the surety being co-extensive with that of principal they
are in fact separate liability which can be enforced
independently against both of them. He would also rely
upon the Judgment of Apex Court in the case of Bethia
Venkanna Vs Sait Chunilal Moolchand Registered
Firm, Kakinada, by Managing Partner, Chunilal
reported in AIR 1961 AP 63 whereunder it has been
clearly held that it does not preclude the decree holder
15
from proceeding to recover their amount from two
judgment debtors simultaneously by filing two
execution petitions and as such impugned order is
devoid of merit. He would draw the attention of this
Court to the fact that executing Court having not
chosen to follow the Judgment of Division Bench on the
premise that it was rendered long ago and infact said
Judgment has been subsequently followed in the case of
Venkateshwara Rao and others Vs Margadarshi Chit
Funds Ltd., and anr reported in 2003 SCC online AP
659 and as such the Division Bench Judgment has not
lost its precedential value. He would also further
contend that executing Court erred in relying upon the
Judgment of Madras High Court in the case of
Dr.Vimala and M/s.Sriram Chits and Investments
Pvt. Ltd., reported in 1999 SCC online Madras 710
though is not cited by counsel appearing for respondent
or any other party and without affording an opportunity
to distinguish said Judgment on facts since it does not
lay down the correct law.
16
He would further submit that principles of natural
justice was given a go by. Hence, on this ground also
he prays for setting aside the impugned order. He
would further contend that executing Court committed
an error in arriving at a conclusion that provisions of
Order 21 Rule 21 does not contemplate to proceed with
separate execution petitions against two Judgment
debtors independently. On the other hand, plain
reading of Order 21 Rule 21 CPC does not indicate that
the decree holder is precluded from proceeding against
different Judgment debtors simultaneously and
separately. He would also submit that power to direct a
party to make good the benefits it has gained by calling
upon them to disclose same and as such he contends
that Judgment of Madras High Court does not lay down
the correct law. On these grounds he seeks for setting
aside the order impugned in W.P.No.32399/2015,
W.P.No.32400/2014, W.P.No.32403/2015 and
W.P.No.*32405/2015.
*Corrected V.C.O. dtd. 30-11-2016
17
6. Insofar as W.P.No.32401/2015, W.P.No.
32402/2015, * and W.P.No.
32404/2015 are concerned he would reiterate the
contentions raised in the earlier writ petitions and very
heavily relies upon the Judgment of Division Bench
Judgment of Andhra Pradesh in the case of Bethia
Venkanna Vs Sait Chunilal Moolchand Registered
Firm, Kakinanda by Managing Partner, Chunilal
reported in AIR 1961 AP 63 which has been
subsequently followed by learned Single Judge of High
Court of Andhra Pradesh in the case of Venkateshwara
Rao and others Vs Margadarshi Chit Funds Ltd., and
anr reported in 2003 SCC online AP 659 and contends
that dismissal of Execution Petitions Nos.1272/2014,
1273/2014 and 1275/2014 on the ground of Execution
Petitions Nos.1269/2014, 1270/2014 and 1271/2014
has been filed against principal debtor was pending and
as such, it would result in every chance of misuse by
decree holder is erroneous and liable to be set aside.
Hence, he prays for allowing the writ petitions and in
*Corrected V.C.O dtd. 30-11-2016
18
support of his submission he has relied upon the
following Judgments:
(i) AIR 1961 AP 63 – Bethia Venkanna Vs Sait
Chunilal Moolchand Registered Firm,
Kakinanda by Managing Partner, Chunilal
(ii) AIR 1977 Kar 204 – The Hukumchand
Insurance Co. Ltd., Vs The Bank of Baroda
and others
(iii) 2002 (1) CTC 48 – Ram Narayan Bhatted
Vs Vimala Jhavar and six others
7. Per contra, Sri.Sajjan Poovayya, learned Senior
counsel appearing on behalf of respondents in
W.P.32401/2015, W.P.32402/2015, W.P.32403/2015,
W.P.32404/2015 and W.P.32405/2015 would support
the impugned orders and also contend that orders
passed by the Executing Court on maintainability
should not be interfered in exercise of supervisory
jurisdiction under Article 227 of Constitution of India
and such exercise should not be undertaken. He would
19
also submit that when Order 21 Rule 17 mandates
furnishing of all particulars about any pending
execution petitions in respect of same decree by the
decree holder and consequence of non furnishing of
such information under Rule 11 particularly Rule
11(2)(a) to (f) by the decree holder is an indicator to the
fact that decree holder had suppressed filing of
simultaneous execution petitions against principal
borrower and guarantor so as to have unjust
enrichment and as such there is no error committed by
the Executing Court in passing the impugned orders
and as such he prays for dismissal of the writ petitions.
In support of his submission he has relied upon the
following Judgments:
(i) (2015) 5 SCC 423 – Radhey Shyam and
anr Vs Chhabi Nath and others
(ii) (2003)6 SCC 675 – Surya Deva Rai Vs
Ram Chander Rai and others
(iii) AIR 1951 P & H 371- Mr.D.H.M.Framjee
and others Vs The Eastern Union Bank Ltd.,
Chittagong
20
(iv) AIR 1994 SC 853 – S.P.Chengalvaraya
Naidu Vs Jagannath
(v) AIR 2012 SC 2858 – Badami Vs Bhali
8. Sri S.V.Rajesh appearing for respondents in
W.P.No.32399/2015 and W.P.No.32400/2015 would
support the impugned orders and pray for dismissal of
the writ petitions.
9. Having heard the learned advocates appearing
for parties and on perusal of the records it would
indicate the decree holder in Execution Petitions
Nos.1267, 1268, 1274 & 1276/2014 are same and
judgment debtors in Execution Petitions
Nos.1267/2014 and 1268/2014 are also same
(Kingfisher Airlines). Likewise, judgment debtors in
Execution Petition Nos.1272, 1273, 1274, 1275 &
1276/2014 are same (United Breweries (Holdings)
Limited). Decree holder in Execution Petitions Nos.1273
and 1275/2014 are also same (AWAS Ireland Leasing
Three Limited). However, judgment debtors are
common in these two (2) petitions (United Breweries
21
(Holdings) Limited) whereas, decree holder (AWAS
Ireland Leasing Three Limited) has filed two (2)
execution petitions against principal borrower in
Execution Petitions Nos.1270 and 1271/2014 and
decree holder M/s.JB 2443 INC. filed Execution
Petition No.1272/2014 against guarantor and Execution
Petition No.1269/2014 against principal borrower.
10. Writ Petitioner/decree holders initiated
execution proceedings against respondents i.e.,
principal borrower - Kingfisher Airlines and guarantor –
United Breweries (Holdings) Limited by filing separate
execution petitions for recovery of amounts due and
payable as per judgment and decree passed in United
Kingdom Court which claim was allowed initially on
13.12.2013 as per Judgment and decree and later
modified on 23.06.2014. Cause notice was issued on
these execution petitions to the Judgment debtors and
they have appeared and filed their objections to all the
execution petitions. In view of respective decrees
having been modified, it resulted in filing applications
22
for amendment of execution petitions and at that point
of time, Executing Court suo moto raised the issue
regarding maintainability of two separate petitions filed
by decree holders against principal borrower and
guarantors and has passed the impugned orders by
recording following findings:
FINDINGS RECORDED BY EXECUTING COURT
11. In Writ Petition No. 32399/2015,
W.P.No.32400/2015, W.P.No.32403/2015 and
W.P.No.32405/2015 executing Court has held that two
execution petitions namely, against principal borrower
and guarantor are maintainable but has directed the
decree holder to amend the execution petitions so that
claim in the execution petitions would not exceed the
amount due under the transaction in which decree
holder has obtained separate decrees. However,
Execution Petitions Nos.1272/2014, 1273/2014 &
1275/2014 are dismissed as not maintainable on the
ground decree holder has filed Execution petitions
Nos.1269/2014, 1270/2014 and 1271/2014 and said
23
order is impugned in W.P.Nos.32401/2015,
32402/2015 and 32404/2015.
12. There cannot be any dispute with regard to
exercise of supervisory jurisdiction by this Court under
Article 227 of Constitution of India. Article 227 confers
every High Court power of superintendence over all
Courts and Tribunals through out territories in relation
to which it exercises jurisdiction.
13. Where the Court assumes a jurisdiction
which it does not have and failed to exercise jurisdiction
which it does have and available jurisdiction being
exercised in a manner which has occasioned injustice or
failure of justice would be the ground on which this
Court can exercise power under Article 227 of
Constitution of India. It has been held by Apex Court in
the case of RADHEY SHYAM AND ANOTHER vs
CHHABI NATH & OTHERS reported in (2015)5 SCC
423 that despite curtailment of revisional jurisdiction
under Section 115 CPC by Act No.46 of 1999, the
24
jurisdiction of High Court under Article 227 remains
unaffected. It has been held as under:
“25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King’s Court in India and of all the other Courts having limited jurisdiction subject to the supervision of the King’s Court. Courts are set up under the Constitution or the laws. All the Courts in the jurisdiction of a High Court are
subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Board principles of writ jurisdiction followed in England are
applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or Courts other than judicial Courts. There are no precedents in India for the High Courts to issue writs to the subordinate Courts. Control of working of the subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence
under Article 227.”
14. Keeping these principles in mind, facts on
hand in these writ petitions are to be examined in the
25
background of impugned order. At the outset it
requires to be noticed that a decree holder by virtue of
power available under Order 21 Rule 11, 21 and 30
would be entitled to proceed simultaneously against
different Judgment debtors for recovery of the decretal
amount. Code of Civil Procedure Code or any other law
does not indicate that decree holder would have to
restrict his claim in the simultaneous execution
petitions filed against the judgment debtors where the
claim is joint and several. Infact similar issue came up
for consideration before a Division Bench of Andhra
Pradesh High Court in the case of Bethia Venkanna Vs
Sait Chunilal Moolchand Registered Firm, Kakinada,
by Managing Partner, Chunilal reported in AIR 1961
AP 63 and point formulated for consideration was to
the following effect.
“3. The simple point that arises for consideration in this appeal is as to whether simultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time?”
26
15. Having raised said question it came to be held
that a decree holder would be entitled under law to
proceed simultaneously against both Judgment debtors
in execution of the decree passed against them and no
specific permission is required for adopting such course,
since CPC or any other law would not lay down
positively that several applications for execution of a
decree cannot be filed simultaneously. In conclusion it
has been held that two execution petitions can be filed
by a decree holder and if decree holder chooses to
recover such amounts simultaneously from two
judgment debtors the only course which requires to be
adopted by such decree holder is to disclose the
amounts having recovered in either of the petitions, so
as to ensure that decree holder would not have unjust
enrichment as otherwise such decree holder would be
recovering twice the decretal amount or the amount to
which decree holder would be entitled to. It has been
held by Division Bench to the following effect:
“The argument proceeds on the basis
that, as regards the sum of Rs.14,619-13-7, there cannot be two E.Ps.
27
simultaneously pending against the two defendants. We are unable to accede to this contention. For the decree-holder is entitled under law to proceed
simultaneously against the different judgment-debtors in execution of his decree and even the specific permission of the Court is not required for such a course. There is nothing in the Civil Procedure Code or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously.
Under Order 21, Rule 11(2) (e), C. P. C.,
the decree-holder has to mention in an E. P. only "whether any, and (if any), what payment or other adjustment of
the matter in controversy has been made between the parties subsequently to the decree' and not the amount for which he has filed any E. P. which is pending. Under Order 21, Rule 11(2)(f), C. P. C., every application for execution of a decree should state whether any and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.
Certainly this provision does not bar
simultaneous executions. Order 21, R. 30, C. P. C., deals with simultaneous execution of a decree in several ways.
This provides for the execution of a decree for the payment of money by detention of the judgment-debtor or by the attachment and sale of his property or by both. Even these two modes of execution are mentioned as alternative to other reliefs which were available to
28
the decree-holder and it is for the latter to choose and decide. Rule 21 is general in its terms and it contemplates that the execution of a decree against the person
and property of the judgment-debtor can proceed simultaneously. In fact, its implication is that in the absence of a specific provision, the Court may not have any discretion to refuse the simultaneous execution.
7. In our judgment, a decree-holder can in law file two execution petitions when it is clear, that the execution in each petition is only for the decree amount due from the defendants concerned in that petition. It is not disputed that the full amount of decree
is due from each of them -- as in the present case, when E.P.No.42 of 1957 was filed against the second defendant, obviously the full amount of Rs.19,282-12-3 with subsequent interest and costs was due on that decree from the second defendant and the full amount of Rs.14,619-13-7 with interest and costs was due from the first defendant.
It cannot be pretended for a moment
that every Execution Petition filed against every judgment-debtor succeeds cent per cent and thereby results in the realisation of the entire amount due under the decree.
There is many a slip between the filing and the closing of an execution petition and a decree-holder has ordinarily to face the chance of an execution petition not being successful in full. He has to take a practical view of the matter,
29
realise the undeniable fact that he may meet a stiff contest in that petition and that the amount of effort, ingenuity and tactics which are put forward by the
judgment-debtors in that petition can be of large magnitude and can deprive him of realisation of the decree in full or in part.
It is only quite common that not only in suits but also in execution petitions all possible lines of fact and law are explored by parties concerned to gain success for themselves at the cost of the opposite party. Consequently, if the law were to force a decree-holder to treat an execution petition which he has filed for a certain amount as equivalent to having realised the amount, it would be like
forcing him to count the chickens before they are hatched. We find that the contentions raised on behalf of the appellant are untenable and agree with the conclusion reached by the lower Court.”
(emphasis supplied by me)
16. There cannot be any dispute to the
proposition that the liability of the surety with that of
principal borrower being co-extensive and they are
separate liabilities although arising out of the same
transaction and not withstanding that they stem from
same transaction, their liability would be separate and
distinct. For this proposition Judgment of Division
30
Bench in the case of The Hukumchand Insurance Co.,
Ltd., Vs The Bank of Baroda and others reported in
AIR 1977 KAR 204 whereunder it has been held that
liability of a principal debtor and liability of a surety
which is co-extensive with that of the former and they
are really separate liabilities although arising out of
same transaction. It has been held by the Division
Bench as under:
“12. Point (d): It is no doubt true xxx the surety is permissible.
The question as to the liability of the
surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is co-extensive with that of
the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously. This proposition finds support in a passage from Halsbury's Laws of England (Third Edition, Volume 22 para 819)”
31
17. Division Bench of Madras High Court in the
case of Ram Narayan Bhatted Vs Vimala Jhavar and
six others reported in 2002 (1) CTC 48 after referring
to the Judgment of Andhra Pradesh High Court in the
case of Bethia Venkanna Vs Sait Chunilal Moolchand
Registered Firm, Kakinada, by Managing Partner,
Chunilal reported in AIR 1961 AP 63 whereunder it
was held that decree holder is entitled under law to
proceed simultaneously against different Judgment
debtors for the same amount in execution of his decree
and the specific permission of the Court is not required
for such a course held that there is no specific provision
of law which requires permission to be obtained from
the Court for simultaneous execution of decree by
decree holder before the Court which passed the decree
and also Court to which decree has been transferred.
Though it was examining as to whether under Order 21
Rule 22 CPC execution petition when filed as to
whether notice is necessary to be sent to the Judgment
Debtor or not. In principle it has been held by Division
Bench of Madras High Court that two simultaneous
32
petitions by decree holder arising out of same Judgment
and decree would be maintainable.
18. In the light of the law laid down by Division
Bench of Madras High Court as well as Division Bench
of Andhra Pradesh High Court in Bethia Venkanna’s
case referred to supra this Court is of the considered
view that decree holder would be entitled under law to
proceed against different Judgment debtors
simultaneously and in the instant case Judgment
debtors being separate and decrees being separate
particularly in W.P.32399/2015, W.P.32400/2015,
* W.P.32403/2015 and
W.P.32405/2015 two execution petitions filed by decree
holder will necessarily have to be held as maintainable
which is also the finding given by executing Court in
Execution Petitions Nos.1267, 1268, 1274 &
1276/2014. However direction issued to the decree
holder to amend the execution petitions so that the
amount claimed in the simultaneous petitions filed
against principal borrower and guarantor would result
*Corrected V.C.O. dtd. 30-11-2016
33
in claim being halved and same is impermissible. In the
background of undertaking given by learned Senior
counsel appearing for decree holder on 07.04.2016
which is to the effect that in the event of decree holders
were to realise any amounts from either of the
Judgment debtors amounts claimed in respective
petitions would be given set of or deducted from the
total claim deserves to be accepted for the purpose of
holding simultaneous petitions would be maintainable.
Judgment debtors cannot be heard to contend that
decree holder is required to restrict their claim in all
these execution petitions to the extent of 50% only.
However to allay the apprehension of Judgment debtors
that decree holder may suppress the fact of amounts
realized, it would suffice if decree holder is directed to
file an affidavit of undertaking indicating thereunder
that as and when amounts are realised in any of the
execution petitions i.e., filed against borrower or
guarantor they would file memo indicating the amounts
realized or received or recovered from the respective
34
Judgment debtors. As such the impugned orders
cannot be sustained.
19. On facts, it requires to be noticed that decree
holders namely, M/s.PAFCO 2916 INC., *M/S PAFCO
2919 INC., AWAS Ireland Leasing Three Ltd and JB
2443 INC. (USA) filed the following *ten execution
petitions against the decree holders as indicated herein
below:
Execution Petition No.
Name of decree holder
Name of judgment debtor
Rank of the judgment debtor in the
judgment
1272/2014 JB 2443 INC. (USA)
United Breweries (Holdings) Ltd.
Defendant-Guarantor
1269/2014 JB 2443 INC. (USA)
Kingfisher Airlines
Defendant-Principal Borrower
1273/2014 AWAS
Ireland Leasing Three Ltd.
United
Breweries (Holdings) Ltd.
Defendant-
Guarantor
1270/2014 AWAS Ireland
Leasing Three Ltd.
Kingfisher Airlines
Defendant-Principal
Borrower
1275/2014 AWAS Ireland
United Breweries
Defendant-Guarantor
*Corrected V.C.O dtd. 30-11-2016
35
Leasing Three Ltd
(Holdings) Ltd.
1271/2014 AWAS
Ireland Leasing Three Ltd
Kingfisher
Airlines
Defendant-
Principal Borrower
1274/2014 PAFCO 2916 INC.
United Breweries
(Holdings) Ltd.
Defendant-Guarantor
1267/2014 PAFCO 2916 INC
Kingfisher Airlines
Defendant-Principal Borrower
1276/2014 PAFCO *2919 INC
United Breweries (Holdings) Ltd.
Defendant-Guarantor
1268/2014 PAFCO *2919 INC
Kingfisher Airlines
Defendant-Principal Borrower
Thus, it could be seen from the above referred tabular
column that decree holder has proceeded to execute the
decree by filing execution petitions both against the
principal borrower as well as guarantor, simultaneously
by filing two different execution petitions.
20. Under Order 21 Rule 11 CPC, a decree
holder would be entitled to proceed simultaneously
against the different judgment debtors in execution of
his decree as already discussed herein above. There is
*Corrected V.C.O. dtd. 30-11-2016
36
nothing in the Code of Civil Procedure or in any other
law which lays down positively that several applications
for execution of a decree cannot be filed simultaneously.
The rules of procedure are hand made of justice. Order
21 Rule 11 (2)(e) CPC mandates that the decree holder
has to indicate in the execution petition as to “whether
any, and (if any), what payment or other adjustment of
the matter in controversy has been made between the
parties subsequently to the decree” and not the amount
for which the decree holder has filed any other
execution petition which is pending. However, under
Order 21 Rule 2(f) CPC, the decree holder has to state
“whether any, and (if any) what, previous applications
have been made for the execution of the decree, the dates
of such applications and the results”. Thus, it would
indicate that Order 21 Rule 11 CPC does not bar
simultaneous executions. However, in case of two
execution petitions being filed namely, (1) for arrest of
judgment debtor and other execution petition is filed to
proceed against the property of same judgment debtor,
then in such a situation, executing Court may refuse
37
execution against the person and property of said
judgment debtor at the same time as indicated in Order
21 Rule 30 CPC.
21. In conclusion, it is held that a decree holder
would be entitled to file two execution petitions for
realizing or recovering the decretal amount due from
two judgment debtors, when judgment and decree
passed against them is joint and several. As such, the
reasoning adopted by the Executing Court either in
holding that two simultaneous execution petitions filed
by the decree holder against the principal debtor and
the guarantor is not maintainable or directing the
decree holder to amend the execution petitions so as to
conform the claim made in two simultaneous execution
petitions would not exceed the decretal amount put
together cannot be sustained.
22. In view of the fact that simultaneous
execution petitions having been filed by decree holder in
W.P.32401/2015, W.P.32404/2015, W.P.32402/2015
for realization of amounts due from the Judgment
38
debtors which decree is joint and several executing
Court was not justified in dismissing the execution
petitions 1272/2014, 1275/2014 and 1273/2014 as
not maintainable.
23. For reasons indicated hereinabove, I proceed
to pass the following:
ORDER
1. Writ petitions are hereby allowed.
2. Impugned orders in W.P.No.32399/2015,
W.P.No.32400/2015, W.P.No.32403/2015,
W.P.No.32405/2015 to the extent of
directing the claim of decree holder to
amend Execution Petitions Nos.1274/2014,
1276/2014, 1267/2014 and 1268/2014 is
hereby set aside. It is held that there being
two separate decrees and execution
petitions having been filed against principal
borrower as well as guarantor such
execution petitions are maintainable as filed
39
and decree holder would be at liberty to
proceed against Judgment debtors.
3. W.P.No.32401/2015, W.P.No.32402/2015
and W.P.No.32404/2015 are hereby
allowed.
4. Order dated 29.04.2015 passed dismissing
the Execution Petitions Nos.1272/2014,
1273/2014 and 1275/2014 as not
maintainable is hereby set aside and it is
held that said execution petitions are
maintainable and decree holder would be at
liberty to prosecute all these execution
petitions simultaneously against Judgment
debtors by independent execution petition
and as already indicated herein above the
decree holder shall file an affidavit of
undertaking in each of these execution
petitions undertaking thereunder to disclose
the amounts realised if any from either of
the Judgment debtors during the course of
40
execution proceedings and said affidavit of
undertaking shall be filed on the next date
of hearing before the executing Court.
It is made clear that no opinion is expressed
with regard to any other aspects relating to
execution petitions.
SD/-
JUDGE
*sp/SBN