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.
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1
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
35THFLOOR, 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)
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2
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
35THFLOOR, 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
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3
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
35THFLOOR, 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
4
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
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5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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
13
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
14
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.
15
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
16
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
17
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
18
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
19
(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
20
(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
21
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
22
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
23
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
24
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?"
25
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.
26
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
27
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,
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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
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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)"
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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
31
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
32
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
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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 Name of Name of Rank of
Petition No. decree judgment the
holder debtor judgment
debtor in
the
judgment
1272/2014 JB 2443 United Defendant-
INC. (USA) Breweries Guarantor
(Holdings)
Ltd.
1269/2014 JB 2443 Kingfisher Defendant- INC. (USA) Airlines Principal
Borrower
1273/2014 AWAS United Defendant-
Ireland Breweries Guarantor
Leasing (Holdings)
Three Ltd. Ltd.
1270/2014 AWAS Kingfisher Defendant-
Ireland Airlines Principal
Leasing Borrower
Three Ltd.
1275/2014 AWAS United Defendant-
Ireland Breweries Guarantor
*Corrected V.C.O dtd. 30-11-2016
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|
Leasing Three Ltd |
(Holdings) Ltd. |
| 1271/2014 |
AWAS Ireland Leasing Three Ltd |
Kingfisher Airlines |
1274/2014 PAFCO United Defendant-
2916 INC. Breweries Guarantor
(Holdings)
Ltd.
1267/2014 PAFCO Kingfisher Defendant-
2916 INC Airlines Principal
Borrower
1276/2014 PAFCO United Defendant-
*2919 INC Breweries Guarantor
(Holdings)
Ltd.
1268/2014 PAFCO Kingfisher Defendant-
*2919 INC Airlines 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
35
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
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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
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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
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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
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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
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