EX PARTE CHAMPALAL JAJODIA Vs. LIFE INSURANCE CORPORATION OF INDIA
LAWS(CAL)-1983-5-3
HIGH COURT OF CALCUTTA
Decided on May 04,1983

CHAMPALAL JAJODIA Appellant
VERSUS
LIFE INSURANCE CORPORATION OF INDIA Respondents

JUDGEMENT

Padma Khastgir, J. - (1.) This application had been taken out by Champalal Jaiodia for an order setting aside the notice dated 7th June, 1982 issued by S. K. Mondal on behalf of the respondent Life Insurance Corporation of India. A suit was filed in 1959 by the Life Insurance Corporation of India against one M. Sohan-lal & Co. a partnership firm. At all material times the petitioner was a partner of the said firm. On 4th September, 1969 a decree was passed in the said suit by this Court directing the defendant firm to pay a sum of Rs. 82,412.50 with interest on the principal sum of Rs. 81,687.30 at the rate of 6% per annum from the date of the decree till realisation. By the said decree this Court showed the defendant firm to pay the decretal amount by monthly instalment as provided in the said decree. By letter dated 9th January, 1970 it was contended on behalf of the respondent that by reason of default in payment of instalment as provided in the said, decree the balance of the decretal amount then outstanding had become due and payable forthwith and the respondent was entitled to execute the decree. The defendant firm Paid in all a sum of Rs. 48,500/-. The last of such payment was made in April, 1972 and not in April, 1982 as wrongly stated in the said notice. By an order dated 25th of January, 1978 the shares of the partners of the defendant firm in the Calcutta Stock Exchange Society Ltd. were attached for sale in execution of the said decree but no steps were taken by the respondents. On 7th of June, 1982 the respondent issued a notice on the petitioner under Section 9 Sub-section (2) of the Presidency Towns Insolvency Act, 1909 to pay the balance decretal amount of Rs. 33,912.50/- with interest within a month from the date of the receipt of the notice. The petitioner received the said notice on 15th of June, 1982. The petitioner further contended that the execution of the said decree was barred by the law of Limitation by reason of provisions of Article 136 of the Limitation Act. Under the circumstances the said decree was no longer enforceable or executable nor the petitioner was under any obligation to make any payment with regard thereto. The petitioner further contended that the petitioner did not reside, nor does reside within the jurisdiction of this Court: under the circumstances this notice was not maintainable. The petitioner felt that such notice was issued with an ulterior motive and with the sole object of putting pressure upon the petitioner to make the payment in respect of a decree, execution thereof had become time barred. Mr. Sudipto Sarkar with Mr. D. Shome appeared in support of this application. In the notice dated 9th January, 1978 written by S. K. Mondal of M/s. Khai-tan & Co. it was stated that in terms of the decree dated 12th September, 1969 the instalment which fell due on 16th December, 1969 had not been paid. The judgment debtor also made default in payment of the sum of Rs. 2600/- being the assessed cost of the suit which was due and payable, on 31st of December, 1969. Under the circumstances the judgment debtor committed breach and default in payment of the decretal amount in terms of the decree. It was written in the said letter that by reason of such default the balance of the decretal amount outstanding had become due and payable forthwith and the plaintiff Corporation was entitled to execute the decree for which steps were being taken accordingly. From the letter dated 7th June, 1982 it appeared that the decretal sum was ordered to be paid within 5 years by monthly instalment until amount was fully paid. In default of payment of three instalments the balance of the decretal amount remaining outstanding became executable forthwith. It was further stated in the said letter that the defendant firm Paid a sum of Rs. 48,500/- in part satisfaction of the decree and the balance of the decretal amount with interest remain still outstanding. Although it was stated that the last payment was made on the 11th April, 1982 but in fact it had been contended by the petitioner herein that last payment was made in the year 1972. The notice stated that the notice was being given calling upon to pay the balance amount of Rs. 33,912.50/- with interest at the rate of 6% per cent per annum until realisation within a month from the date of the receipt of the notice. In default it was contended that the defendant would be deemed to have committed an act of insolvency for not complying with the requirement of the notice.
(2.) Mr. Shome drew my attention to Section 9 Sub-section (5c) of the Presidency Towns Insolvency Act and submitted that apart from a bare statement in the notice, the judgment creditor had not substantiated its bald allegation that the judgment debtor was transferring his property or which could be considered as fraudulent transfer in preference to his creditors,
(3.) This application had been taken out for setting aside the notice on the Ground that the decree was not other-wise executable in as much as the suit was filed in 1959. decree passed in 1969 and the default was committed on 9th January, 1970. Under the circumstances the notice being served on 26th June, 1962. the decree became barred by the Law of Limitation. Limitation would start from 9th January, 1970. Article 137 of the Limitation Act provided for three years limitation in respect of decrees which provided for default clause. Article 136 provides limitation for execution of any decree within 12 years from the date when the decree becomes enforceable or any order directing payment of money to be made at a certain date or at recurring periods, when default in making payment in respect of which execution is sought, takes place. Article 137 provides three years limitation from the date when the right to apply accrues in respect of any application for which no period of limitation is provided elsewhere.;


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