Execution petition in national consumer
Ari Ben
(Querist) 10 March 2020
This query is : Resolved
I filed an execution petition to recover the dues from The opposing party , in this case a builder. After Six months on my hearing date, the hon court refused to issue an arrest warrant. She wants details of opposing parties bank details or properties which can be attached. My opposing party is almost bankrupt and I am sure he will have no monies in his banks, and most of has assets are already attached. My question is how does the court expect me to get the builders bank details, he will not provide as he is hostile and how do I get his properties details. My Advocate is suggesting I use a private agency To get these details . My Next Hearing is inn6 months, what do I do. He also suggested I file in NCLAT, but , it’s will be again a long drawn and expensive suggestion.
Kindly Help
Ari
KISHAN DUTT KALASKAR
(Expert) 10 March 2020
Dear Sir,
Normally arrest warrants cannot be issued by the Courts unless you project before the Court that JDR having sufficient amounts not ready to pay the decretal amount. Court do not bother from which source you obtain bank details of the builder.
Raj Kumar Makkad
(Expert) 10 March 2020
Of course, it is very difficult for a layman to get the details of such shrewd persons who live live their life with many faces BUT even then one has to try his best to obtain the information of the other properties of the JD so that those may be taken into possession by Court and then be auctioned. Arrest is the last resort.
Rajendra K Goyal
(Expert) 12 March 2020
Proceed as advised by your lawyer to get the information needed by the court.
T. Kalaiselvan, Advocate
(Expert) 18 March 2020
Notice may be issued against a judgment-debtor who in other execution proceedings has made an application to be declared insolvent. The Court can issue warrant for the arrest of the judgment-debtor only when he fails to make appearance in obedience to the notice issued under rule 37(1).
Where the decree is for the payment of money, it can be executed by arrest and detention of the judgment debtor.[iii] Likewise, in case of a decree for specific performance of contract or for injunction, a judgment debtor can be arrested and detained.[iv] Again, where a decree is against a corporation, it can be executed with the leave of the court by detention in civil prison of its directors or other officers.
If the judgment-debtor has means to pay and still he refuses or neglects to honour his obligations, he can be sent to civil prison
Mere omission to pay, however, cannot result in arrest or detention of the judgment-debtor. Before ordering detention, the court must be satisfied that there was an element of bad faith, “not mere omission to pay but an attitude of refusal on demand verging on demand verging on disowning of the obligation under the decree”.
The above principles have been succinctly and appropriately explained by Krishna Iyer, J. in Jolly George Verghese v. Bank of Cochin[xiv], in the following words:
“The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here, a consideration of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the covenant and the Constitution.”
The Court is required to record reasons for its satisfaction for detention of the judgment-debtor. Recording of reasons is mandatory. Omission to record reasons by the court for its satisfaction amounts to ignoring a material and mandatory requirement of law.
Such reasons should be recorded every time and in every proceeding in which the judgment-debtor is ordered to be detained
