Case title:
The Principal Secretary, State of Karnataka v. Director, Tejasco Techsoft Private Limited
Date of Order:
7th Day of March 2023
Bench:
Hon’ble Mr. Justice Sreenivas Harish Kumar
Parties:
The Principal Secretary, State of Karnataka v. Director, Tejasco Techsoft Private Limited
IMPORTANT PROVISIONS
- Article 227 of the Constitution of India: The writ petition is filed under this article, which empowers the High Courts to exercise their supervisory jurisdiction over subordinate courts and tribunals.
- Code of Civil Procedure (CPC):
- Order XXI Rule 11: Pertains to the arrest of judgment debtors based on oral applications.
- Order XXI Rule 30: Deals with the detention of judgment debtors.
- Order XXI Rules 37 to 40: Outlines the procedure for arresting judgment debtors, including the issuance of arrest notice.
OVERVIEW
This petition has been submitted under Article 227 of the Constitution of India, requesting the retrieval of documents from the case Commercial Execution 30/23, which is currently pending before the 86th Additional City Civil Court, Commercial Court Complex, Bengaluru. The petition seeks to overturn the order dated 15.2.2023 issued by the Commercial Court in relation to the case Comm. Ex. No. 30/2023, which is also pending before the 85th Additional City Civil Court, Commercial Court Complex, Bengaluru, as stated in Annexure-A and so on.
The petitioners, who are government officials, challenged the order that involved the arrest of the judgment debtors (the petitioners themselves) based on an application for the attachment of their assets. The main contention was that the order violated the proper procedure for arresting judgment debtors as outlined in the Code of Civil Procedure. The court found that the order suffered from infirmity and set it aside, concluding that the warrant issued against the government officials without prior arrest notice was not sustainable.
ISSUES RAISED
Legality and Validity of an order passed in the case Com. Ex. 30/2023 by the Commercial Court in Bengaluru involving the arrest.
ARGUMENTS ADVANCED BY THE RESPONDENT
Sri Sunil Kumar argues that the lower court considered the respondent's oral application and subsequently ordered the arrest of the petitioners, citing Order XXI Rule 11 of the Code of Civil Procedure.
JUDGEMENT ANALYSIS
Sri C.N. Mahadeshwaran, the learned AGA, represented the petitioners, while Sri H. Sunil Kumar appeared for the caveator/respondent. The petitioners in this case are the Principal Secretary and the Commissioner of the Department of Health and Family Welfare, Government of Karnataka. They are challenging the order dated 15.2.2023 passed in the case Com. Ex. 30/2023, which is currently before the Commercial Court, Bengaluru, specifically the 86th Commercial Court.
It seems that the respondent sought to enforce the award granted in A.C.130/2022 and filed an application under section 60 of the Code of Civil Procedure, requesting the attachment of both movable and immovable assets found in the petitioners' office. The lower court, after determining that the award had reached its finality and to prevent any delay in payment of the awarded amount, ordered the arrest of the petitioners under Order XXI Rule 30 of the Code of Civil Procedure.
The order being challenged in this writ petition is clearly unlawful. To begin with, the respondent did not file an application for the arrest of the judgment debtors, who are the petitioners in this case. Instead, they applied for the attachment of movable and immovable assets.
Regarding Sri Sunil Kumar's argument, it should be noted that even though the mentioned provision allows for the arrest of judgment debtors based on oral applications, it requires the condition that the judgment debtor must be present within the court's premises at the time the decree was passed. If the judgment debtors were not present within the court's premises when the decree was issued, an oral application cannot be considered for their arrest. The respondent has not claimed that the petitioners were present in the court at the time of the decree. Furthermore, it is important to clarify that the execution process was initiated based on an arbitrator's award, not a court decree. Hence, Rule 11 of Order XXI of the Code of Civil Procedure cannot be applied in this case at all.
While Order XXI Rule 30 of the Code of Civil Procedure does allow for the detention of judgment debtors, there is a specific procedure outlined for the arrest of judgment debtors in Order XXI Rules 37 to 40 of the Code of Civil Procedure. In this case, the judgment debtors are government officials, and issuing a warrant against them without first issuing an arrest notice cannot be justified. Consequently, the challenged order is flawed and lacks validity. Therefore, the writ petition is granted, and the order dated 15.2.2023, passed in the case Com. Ex. 30/2023 before the Commercial Court, Bengaluru, specifically the 86th Commercial Court, is revoked.
A notice under Order 21 Rule 11 of the Code of Civil Procedure cannot be issued by an executing court, according to the Supreme Court's ruling in Inderjit Kaur v. Ranbir Singh.
CONCLUSION
In conclusion, the court found the impugned order, dated 15.2.2023, passed in the case Com. Ex. 30/2023 by the Commercial Court in Bengaluru, to be unlawful and invalid. The order involved the arrest of the petitioners, who are government officials, without following the proper procedure outlined in the Code of Civil Procedure. As a result, the court set aside the order and allowed the writ petition filed by the petitioners, thereby revoking the challenged order.
