- (1.) IN this application, the petitioner, that is the plaintiff-decree holder, has prayed for appointment of a Receiver for making inventory and for attachment and sale of moveable properties. Alternatively prayer has been made for opening a current account with any local bank for the purpose of depositing the incomes to be derived from using the moveable properties of the judgement debtor and the Calcutta Medical Centre Limited, the company, month by month till the disposal of the application.
(2.) IT appears from the facts, which are relevant for the purpose of the case, that the learned Additional Chief Judge, City Civil Court, Hydrabad passed a decree in O.S. No. 320 of 1998 on 21st August, 1998 in a suit filed by the petitioner against Calcutta Medical Centre (for short the CMC) represented by its proprietor Dr. Ashok Kumar Gupta, the respondent in this application, for a sum of Rs.20,91,319/- with future interest @ 36% per annum from the date of the institution of the suit till the date of payment and Rs.45,419/- towards costs of the suit to be paid to the plaintiff by the defendant. The said suit was decreed. Challenging the ex parte decree Dr. Ashok Kumar Gupta, the proprietor of CMC, the defendant/judgment-debtor filed an application. By an order passed on 21st March, 2000 it was dismissed by the learned Trial Court at Hydrabad. Challenging the said order a civil revision petition was filed before the Andhra Pradesh High Court which was disposed of on 29th September 2000 with a direction upon the judgment-debtor to deposit half of the decreetal amount and costs within eight weeks. Subsequently, an application was filed for extension of time to deposit the decreetal amount and costs which was dismissed. In 2003 in E.C. 15 of 1998 a Tabular Statement along with the supporting affidavit was filed by the decree-holder/petitioner in which the immovable properties of the judgment debtor being flat nos. 6, 7,8 and 9 situated at 12, Dr. U. N. Brahmachary Street, 1st floor, Kolkata, were sought to be attached and sold by appointing Receiver in order to satisfy the decree which was transmitted to the Calcutta High Court for execution being E.C No. 15 of 1998. 3. The case of the petitioner is that Calcutta Medical Centre Limited, (for the short the company) a company within the meaning of the Companies Act, 1956 was incorporated on 10th November, 1995. It has been stated that the company had taken over the business of the proprietorship concern of the judgment-debtor Dr. Ashok Kumar Gupta who was claming occupancy and tenancy rights under Prema Gupta, the mother of the judgment debtor, in respect of the said flats. Prema Gupta resisted the execution case being E.C. 15 of 1998. In the said execution case the company filed an application for intervention and for adding as a party which was dismissed by the High Court by its judgment and order dated 5th August, 2003. The company preferred an appeal which was allowed. Aggrieved the decree holder preferred civil appeals being Civil Appeal Nos. 5893- 5894 of 2005 before the Apex Court. The Supreme Court by its judgment and order dated 26th September, 2005 set aside the order of the Division Bench and allowed the appeals. According to the petitioner it is evident from the judgment of the Apex Court that in spite of the receipt of notice of the execution proceedings, the judgment debtor did not raise any objection regarding the mode of the execution of decree and has accepted the same since 2003. From the facts it appears that Prema Gupta, the mother of the judgment-debtor, offered to pay Rs.62,00,000/- in instalments which was paid and thereafter by an order passed on 5th September, 2008 by the High Court at Calcutta, the said four flats were released from attachment. According to the petitioner, the decreetal dues with interest @ 36% per annum calculated up to 31st July, 2009 is approximately Rs.1,09,00,000/- and out of which a sum of Rs.62,00,000/- was paid by the mother of the judgment-debtor, Smt. Prema Gupta and the said amount was accepted by the decree holder towards partial satisfaction of the decreetal dues. However, there is an outstanding amount of Rs.47,00,000/- which includes interest calculated up to 31st July, 2009 which requires to be realised in order to satisfy the decree in full. Mr. Banerjee, learned advocate for the petitioner, supporting the statements in petition had submitted that the respondent by converting the proprietorship concern into a public limited company is trying defraud the creditor. Submission was made that the respondent in a diabolical manner is making an effort to frustrate the money decree. It has been argued that since Order 21 Rule 58 of the Code of Civil Procedure, 1908 postulates that where any claim is preferred, the Court shall proceed to adjudicate upon the claim, appropriate order may be passed. Learned advocate for the petitioner had relied on an unreported judgment of the Supreme Court delivered on 18th August, 2009 in Civil Appeal No. 4613 of 2000 (Industrial Investment Bank of India Ltd. Vs. Biswanath Jhunjhunwala) and on the judgment of the Bombay High Court in (Jagannath Ganeshram Agarwala Vs. Shivnarayan Bhagirath and Ors.: AIR 1940 Bombay 247) in support of his submission.
(3.) MR. Basu, learned advocate for the company, that is, Calcutta Medical Centre Ltd., had submitted that since the question of tenancy was the issue before the Supreme Court as evident from the judgment in Civil Appeal Nos. 5893 5894 of 2005 and as the issue whether the company had stepped into the shoes of the proprietorship concern was not at all considered, the said judgment does not help the case of the petitioner. Referring to the balance sheet of the company, it was argued that though the Memorandum of Association of the company filed on 9th November, 1995 states that the company would take over the assets and liabilities of the CMC, the proprietorship firm, however, it is evident from the accounts of the company annexed to the affidavit-in-opposition that the liabilities of CMC were not taken over. Referring to some of the paragraphs including paragraph 18 of the petition it was submitted that the petitioner does not know whether the properties mentioned in the Tabular Statement sought to be attached, belong to the judgment-debtor or the company and the issue is to be looked into by Trial on Evidence before the Executing Court. Moreover, as the provisions contained in Order 21 Rule 58 are applicable to the proceedings before the Executing Court and not before this Court, the application is misconceived. Admittedly the petitioner had put the decree into execution and it appears that the decree has been partially satisfied. The question is whether the provisions contained in Order 21 Rule 58 are applicable to these proceedings. It is evident that Order XXI and the Rules thereunder elaborately deal with the mode in which decree and orders are to be executed. Such execution starts with the filing of an application before the Executing Court. As this Court is not an Executing Court, it cannot adjudicate the claims and objections and, therefore, the applicability of Order 21 Rule 58 as contended by the petitioner does not arise. That apart though the company has been able to demonstrate from its accounts annexed to its affidavit that it has taken over the assets sans the liabilities, in my view, the petitioner has not been able to rebut the same in its reply. Therefore, mere statement in paragraph 13 of the affidavit-in-reply that the liability of the judgment-debtor has become the liability of the company does not improve the case of the petitioner. In this regard it is to be noted that the judgment of the Apex Court delivered on 26th September, 2005 only deals with the issue of tenancy and does not consider whether the company had stepped into the shoes of the judgment-debtor. The judgment of the Supreme Court in Industrial Investment Bank of India (supra) is not of any assistance to the petitioner as execution was done on behalf of the borrower company by the respondent as the director of the borrower company, whereas in the case in hand the public limited company did not come to the aid of Ashok Gupta. The judgment in Jagannath Ganeshram Agarwala (supra) is also of no assistance to the case of the petitioner, since it was the case of a debtor and a surety as correctly contended on behalf of the company. Therefore, the application fails and is dismissed. No order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be given to the appearing parties on priority basis.;