2004(3) ALL MR 21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.V. MOHTA, J.
L & T Finance Limited Vs. T. Jagadishwara Rao & Anr.
Chamber Summons No.46 of 2003,Execution Application No.15 of 2003,Arbitration No.269 of 2001
5th April, 2004
Petitioner Counsel: Ms. SHAKUNTALA JOSHI
Civil P.C. (1908), O.12, R.41(3) - Applicability - Direction by court to defendants to file affidavit stating particulars of properties - Defendant unable to take effective steps - Show cause notice issued - Hamdast allowed - Subsequently order passed allowing substituted service - Notices published accordingly in three newspapers - In view of these facts held it is a fit case to invoke R.41(3) of O.21. (Paras 6, 7, 12)
JUDGMENT
JUDGMENT :- Heard Ms. Shakuntala Joshi for the plaintiffs.
2. This Chamber Summons has been taken out by the plaintiffs against the defendants. The basic prayer which is insisted during this hearing is based on Order 21 Rule 41 (3) of (C.P.C.) Civil Procedure Code.
The earlier orders which were passed in this Chamber Summons are relevant for the relief as prayed. By order dated 3rd, June, 2003, the Chamber Judge has passed the following order :
"After hearing the learned Counsel for the applicant/claimant and on going through the affidavit, in my opinion, it would be appropriate to grant prayer (d) at this stage. The Defendants are, accordingly, directed to file an affidavit stating the particulars of his properties as provided under Order 21 Rule 41 of C.P.C. within three weeks from today."
3. By order dated 15th July, 2003, it was specifically observed, that the defendant was unable to take effective steps in spite of the order of the Court dated 3rd July, 2003. Therefore, show cause notice to the defendants No.1 and 2 were made returnable after 4 weeks. By order dated 1st September, 2003, Hamdast was also allowed to the show cause notice.
4. On 25th November, 2003, this Court after considering the order passed on 15th July, 2003, allowed the substituted service upon the defendants, by publishing the notices in newspapers. By order dated 9th February, 2004 the order of substituted service was modified and allowed the plaintiffs to publish the show cause notice in other newspapers. The plaintiffs have accordingly, published notice in three news papers in Warangal in Andhra Pradesh as directed. This publication was made on 24th February, 2004.
5. Plaintiffs have filed affidavit of service dated 8th March, 2003, stating that the show cause notices were duly published in two news papers i.e. Times of India (Hydrabad) and Vartha Warangal (main issue) and thereby contended that services and publication of the show cause notices were completed.
6. Considering the above facts and background, in my opinion, this is a fit case, where Order 21 Rule 41(3) of C.P.C. is required to be invoked. The basic provision is reproduced as under ;
"Examination of judgment-debtor as to his property.- (1) Where a decree is for the payment of money the decree-holder may apply to the Court for an order that -
(a) the judgment-debtor, or
(b) (where the judgment-debtor is a corporation), any officer thereof or
(c) any other person.
be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person, and for the production of any books or documents.
(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under sub-rule (1), by order require the judgment debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release."
7. The above provisions made it very clear that, if case is made out, the Court has sufficient power to invoke the provisions of Order 21 Rule 41(3). This is a fit case, where such steps should be taken to meet the ends of justice.
8. It was pointed out, that this Court has also passed such order in other matter bearing Chamber Summons No.1300 of 2003.
9. Even otherwise, in view of the facts referred above and averments made in the affidavit in support of the Chamber Summons, I am granting relief in terms of prayer clause (f). In view of this, the Chamber Summons is disposed of.
11. The prayer clause (d) and (f) is reproduced as under :
"(d).- that the Defendants above named be required by an order of this Hon'ble Court to file his Affidavit stating particulars of his properties etc., as provided under Order 21 Rule 41 of the Civil Procedure Code, 1908 since the Decree/Award dated 07/06/2002 passed by the learned Arbitrator has remained unsatisfied for more than 30 days from the date of its passing;
(f).- that the Defendants be ordered to be detained in Civil Prison in case the Defendants are found not having complied with the Order under prayer (d) hereinabove."
12. In view of this office is directed to issue appropriate warrant or take such appropriate steps, as required in accordance with the law.
13. This Chamber Summons is disposed of accordingly.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court.