Writ Petition No.623 of 2008

10th June, 2010

Petitioner Counsel: Mr. P. P. SINGH
Respondent Counsel: Mr. A. F. DINIZ

Cases Cited:
Ram Chand and Sons Sugar Mills Private Limited, Barabanki Vs. Kanhayalal Bhargava, 1966 DGLS (soft) 81 [Para 11,12]

JUDGMENT

JUDGMENT:- Heard Shri. P. P. Singh on behalf of the petitioner and Shri. A. F. Diniz on behalf of respondent no.1.

2. The name of respondent no.2 was ordered to be deleted, at the request of the petitioner, by order dated 18/03/2010.

3. The petitioner was a Technical Director of respondent no.2, but according to her, she had resigned w.e.f. 13/06/2001. She was not a party to the suit filed by respondent no.1 or the Criminal Case bearing no.62/OA/95/B which was filed by respondent no.1 against the Company and its Managing Director, Shri. V. K. Chawla.

4. Special Civil Suit No.226/95/A came to be decreed by judgment dated 29/10/2005 in the sum of Rs.69,51,746/- with interest at the rate of 23% from 5/05/1995. The suit was decreed against Ravish Infusions Ltd., a limited Company with its registered office at B-2, La Marina, Miramar, Panaji-Goa, represented by Shri. V. K. Chawla, Managing Director of Ravish Infusions Ltd., B-2, La Marina, Miramar, Panaji, Goa. It appears that in the year 2004, certain properties of respondent no.2, Company were attached by the learned Judicial Magistrate in the said criminal case and the petitioner herein was given and had accepted the custody of the properties of respondent no.2 under attachment panchanama dated 10/08/2004.

5. The execution proceedings were not filed, as per cause title in the suit. The execution proceedings by the Decree Holder/respondent no.1 bearing no.30/06/A came to be filed in the name of Ravish Infusions Ltd., a limited Company with their registered office at B-2, La Marina, Miramar, Panaji-Goa, represented by its Director Dr. Rekha Kamat Tarcar, resident of Tarcar Ice Factory, Calangute, Bardez, Goa, as Judgment Debtor.

6. Column No.10 in the execution application deals with the mode of assistance sought from the Court. The respondent no.1/Decree Holder in the said execution application stated that mode of assistance sought from the Court was by detention in civil prison of the Director of the Judgment Debtor i.e. the petitioner herein, or by the attachment or sale of its property, or both.

7. The respondent no.1/Decree Holder has now filed an affidavit, inter alia, stating that no claim has been made personally against the petitioner herein nor the Decree Holder has sought any relief against her or attachment of her properties and that the petitioner has only been added in the cause title as the representative of the respondent no.2, a Company which is defunct and all the other Directors of the said Company were absconding and it was highly impossible for the Decree Holder to execute the decree against respondent no.2, Company. It is also stated that the petitioner in her affidavit dated 8/12/2006 filed in Writ Petition no.321/2006 had admitted that she was a Director and knew about the affairs of the Company and that she had even met Mr. V. K. Chawla, the Managing Director, who was absconding arrest in the premises of the respondent no.2, Company. The explanation now sought to be given is not at all convincing in the light of averments made in Column No.10 of execution application.

8. Be that as it may, on receipt of notice of the execution application, the petitioner filed an application to delete her name stating that the application was filed to extort money from the Judgment Debtor, who is not concerned and connected with the said decree dated 29/10/2005. The petitioner stated that no decree was passed against her nor in any way she was concerned with the said decree and that the decree could not be executed against a stranger. It was stated by her that no suit was filed by the respondent no.1/Decree Holder as plaintiff against the petitioner nor she was a party to the proceedings in the said Civil Suit nor any summons were served upon her to appear before the Court. She also stated that she had resigned from 13/06/2001 and was not a Director for more than 7 years, when the decree came to be passed on 29/10/2005 nor was she in charge of the day to day functioning of the said Company. It was also stated by her that the respondent no.1/Decree Holder was a stranger to the petitioner and had no dealings with her. The application was contested by respondent no.1 by filing a reply and in the said reply it was stated that the respondent no.1/Decree Holder was neither claiming any money personally from the petitioner nor was seeking any attachment of her personal property and as there was no personal claim made against the petitioner, there was no cause for concern whatsoever.

9. The learned Executing Court proceeded to reject the application of the petitioner to delete her name, presumably, being influenced, that she was handed over certain items for safe custody as Director of respondent no.2, Company and she had filed an affidavit dated 18/12/2006 stating that she continued to be the Director of respondent no.2, Company.

10. Shri. P. P. Singh, the learned Counsel appearing on behalf of the petitioner submits that the petitioner was not a party to the suit and she is not concerned with the decree which has been passed against the Company. Learned Counsel submits that there is no reason why the petitioner should represent the Company in execution proceedings when in the suit, the Company was represented by its Managing Director V. K. Chawla. Learned Counsel further submits that the affidavit dated 8/12/2006 in Writ Petition no.321/2006 cannot be read out of context. He has also submitted that the petitioner had resigned from respondent no.2, Company on 13/06/2001 and her resignation was accepted and forwarded to the Registrar of Companies.

11. On the other hand, Shri A.F. Diniz has submitted that the decree will be executed against the Company only and not against the petitioner personally. Shri Diniz has further submitted that the petitioner's name was joined to the execution proceedings only for the purpose of representation and in this context learned Counsel has drawn my attention to Order 29, Rule 3, CPC and has placed reliance on the decision of the Apex Court in the case of Ram Chand and Sons Sugar Mills Private Limited, Barabanki Vs. Kanhayalal Bhargava (1966 DGLS (soft) (81)). Learned Counsel has further submitted that this Writ Petition is rendered infructuous after the deletion of respondent no.2, Company which is the Judgment Debtor in the execution proceedings.

12. We can even proceed with the assumption that the petitioner continues to be the director of Judgment Debtor Company, whose name has now been changed to I.F.G. Ltd. by virtue of certificate of incorporation dated 26/02/2001 given by Registrar of Companies. I am entirely in agreement with other submissions made by Shri. P. P. Singh, the learned Counsel on behalf of the petitioner. The Company was the Judgment Debtor and the execution had to proceed as per cause title in the suit in the absence of any changed circumstances like transfer of the decree or the like. I am unable to accept the submission that this petition is rendered infructuous upon the deletion of respondent no.2, Company. All that the petitioner seeks is that her name is to be deleted from the cause title of the execution proceedings and it is the Decree Holder who would be concerned about it, not the Judgment Debtor/respondent no.2. I have perused the decision in a case of Ram Chand and Sons Sugar Mills Private Limited, Barabanki Vs. Kanhayalal Bhargava (supra) which has no application to the facts of the case at all. As already seen, the respondent no.2/Decree Holder sought assistance of the Court in executing the money decree by detention in civil prison of the Director of the Judgment Debtor or by the attachment or sale of its property, or by both. In other words, it is very clear that the petitioner was forced to represent the Judgment Debtor Company in order to pressurize her in complying with the decree. The stand now taken by the Decree Holder is not at all convincing.

13. Rule 2, of Order 29 deals with service on corporation and it provides that subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served -

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

14. The service on respondent no.2, the Judgment Debtor Company could have been effected without the name of the petitioner being shown in the cause title as the Director of the Company. If the decree was obtained against the Company represented by its Managing Director, there was no reason why the execution proceedings ought to have been filed against the Company represented by the petitioner. The provisions of Order 29, Rule 2 are only enabling provisions to enable to serve the Company through the persons mentioned in clause (a) or the place mentioned in clause (b). The said provisions do not give an option to the plaintiff or a Decree Holder that the Company should be served through a particular director or that the Company should be represented by a particular director of his or her choice. As already stated, it appears that the name of the petitioner was added with a view to coerce her to satisfy the decree which was passed against the Company. In my view, considering the facts of the case, learned Executing Court ought to have allowed her application and deleted her name from the cause title of the Execution Proceedings.

15. Consequently, the writ petition deserves to succeed. The impugned order dated 25/07/2008 is hereby set aside and, consequently, the name of the petitioner shall be deleted from the cause title of the execution proceedings. Rule made absolute on the above terms with no order as to costs.

Petition allowed.