Gauhati High Court · 2012

and that the sum of Rs.16039.45(Sixteen thousand thirty nine and forty five) onl y be paid by the defendant to the plaintiff on account of the costs of this suit , with interest thereon at the rate of 6% per cent per annum from this date of r ealization. (cid:29)

6. Since the decree was not satisfied by the defendant in the suit, the same was put in execution by Money Execution Case No.04/2011 in the Court o f the Civil Judge at Dibrugarh for extracting a sum of Rs.6,16,017.16. Immediate ly after filing of the said execution petition, one application was filed under Order XXI Rule 46(1)(a) & (c) of the CPC, supported by an affidavit for attachme nt and sale of the properties of Nahortoli Tea Estate by the respondent, the dec ree holder, for a prohibitory order by directing the State Bank of India, Thana Chariali Branch, Dibrugarh and not to make payment to the judgment debtor from A ccount No.30382802096 in the name of Nahortoli Tea estate to the extent of Rs.8, 00,000/- lying at its credit till satisfaction of the decree dated 18.05.2011. T he executing court allowed the respondent to issue notice under Order XXI Rule 2 2(2) of CPC by the order dated 16.06.2011 to the judgment debtor and Nahortoli T ea Estate at Dikom inasmuch the properties are not in possession of the judgment debtor and observed that (cid:28)Hence the said proceeding can be resorted only if the judgment debtor i.e. Tata Tea Limited has not paid the amount and other modes b eing resorted to, so at this stage the petition under Order 21 Rule 46(1)(a) & ( c) of CPC was not allowed (cid:29). 7. Thereafter, by a petition dated 05.12.2011, the executing court was reported that despite receipt of the notice, the judgment debtor failed to a ppear before this court and as such again the prayer for attaching the Bank Acco unt No. 30382802096 was renewed. That time, the said petition, however, was not supported by an affidavit as required. 8. On the face of that prayer, the executing court issued a notice to M/s. Tata Tea Ltd. and the appellant i.e. Nahortoli Tea Estate at Dikom, aski ng why a prohibitory order shall not be passed and the judgment debtor shall not be restrained for the said amount to the extent of Rs.8,00,000/- from the said account. Similarly, another direction was issued on the said bank by the executi ng court on the same date in the manner as follows : (cid:28)Whereas the Judgment-debtor has failed to satisfy a decree passed against it, o n 18.09.2009, in Money Suit No. 36 of 2007 18.09.2009 for Rs.6,13,017.16 (togeth er with interest on the principal sum up-to-date of payment) and costs of taking out this execution of Rs.3,000.00; it is ordered that the defendant/Judgment-de btor be and is hereby, prohibited and retrained until further order from this Co urt, from receiving from withdrawing the following property in possession of the said State Bank of India, Thana Chariali Branch, Dibrugarh, that is to say, the amount to the extent of Rs.8,00,000.00 as lying in the account No.30382802096 o f Nahortoli Tea Estate, to which the defendant/ Judgment- debtor Tata Tea Limite d is entitled as owner of Nahortoli Tea Estate, subject to any claim of said Sri Rajib Kumar Dutta the Plaintiff/Decree -holder and the said Tata tea Limited, b eing owner of Nahortoli Tea Estate or any of is officials is hereby prohibited a nd restrained until further order of this Court, from delivering the said proper ty to any person or persons whensoever. Given under my hand and seal of the Court, this 9th day of December, 201

1. Sd/ Civil Judge Dibrugarh Description of Property The amount of Rs.8,00,000.00 (Rupees Eight Lakhs) only, in Account No. 303828020 96 of Nahortoli Tea Estate lying with the said State Bank of India, Thana Charia li Branch, Dibrugarh. (cid:29) 9. After the said order of attachment, Nahortoli Tea Estate, the ap pellant herein, made a petition in the said execution case stating that the said Bank has already attached an amount of Rs.8,00,000/- from their account to a se parate account named (cid:28)Court Attachment Account the Amalgamated Plantations Pvt. Ltd. A/C Nahortoli Tea Estate (cid:29). It has been asserted in the said petition that the said account is not standing in the name of the Nahartoli Tea Estate, howeve r, in para 5, it has been stated that: (cid:28)This account is standing in the name of Nahortoli Tea Estate, where an amount o f Rs.8,00,000/- was lying to the petitioner’s credit, which was remitted by Amal gamated Plantations Pvt. Ltd., Kolkata for managing the petitioner’s day to day operational affairs. (cid:29) It was further disclosed that: (cid:28)It is pertinent to mention that in the said notice address to the bank, the Jud gment Debtor viz. Tata Tea Limited is described as the owner of Nahortoli Tea Es tate and in that capacity, is stated to be entitled to receive the amount lying in the aforesaid bank account, which is factually wrong and incorrect and accord ingly denied by the petitioner. (cid:29) In the petition, it has been further asserted that the said prop erty as attached by the court does not belong to such category of third party wi th whom the property belonged to the judgment debtor is lying. Nahortoli Tea Est ate is neither holding any money of the judgment debtor nor is liable to pay any money to the judgment debtor and accordingly it cannot be compelled or called u pon to satisfy the debt. It is further stated that the assertion as made by the decree holder, the respondent herein that the money as lying in the said account as the property of the judgment debtor is factually wrong, misleading and incor rect. Furthermore it is stated that Nahartoli Tea Estate, the appellant herein h as no remote relation or interest in any manner whatsoever with the judgment deb tor, Tata Tea Ltd. 10. The Amalgamated Plantations Private Ltd., has been stated to be the owner of the Nahortoli Tea Estate and the judgment debtor has no right, titl e or interest in the said account or on the property of the appellant. It has be en also contended that the respondent, the decree holder, did not produce any do cument to connect the amount with the judgment debtor and as such the appellant cannot be compelled to pay any amount on account of judgment debtor or can be ca lled upon to satisfy the debt under the provisions of Order 21 Rule 46 (1)(a) an d (c) of the CPC. Further it has been asserted that the decree holder has not ex hausted all the modes of recovery against the judgment debtor. Therefore, the pr ocedure as undertaken is absolutely erroneous in law. It has been also stated as under: (cid:28)Prior to filing of the original Money Suit No.36/2007 and the execution applica tion under Order 21 R 46(1)(a) & (c), Nahortoli Tea Estate was already demerged from North India Plantation Operations of Tata Tea Limited and vested in Amalgam ated Plantations Pvt. Ltd. By virtue of the provisions of section 391 & 394 (1) and (2) of the Companies Act, 1956 and by virtue of the order passed by Hon’ble Calcutta High Court in Company Petition No. 123/2007. Under such circumstances, the execution petition proceeding against Nahortoli Tea Estate cannot proceed at this stage. (cid:29)

11. The appellant pressed for vacating the said order. For non-avail ability of the said funds for the order of attachment as passed by the executing court, the said Tea Estate, the appellant is facing serious financial bottlenec ks. 12. By the order dated 10.07.2012, the executing court rejected all pleas as displayed and directed the respondent for taking steps for remitting th e exact execution amount by the bank from the attached amount for satisfying the decree. Being aggrieved by the said order dated 10-07-2012, this appeal

13. has been presented. 14. Mr. K. Goswami, learned counsel appearing for the appellant subm its that the respondent has preferred not to file any document or record to show that any property including the remittence in the account of the State Bank of India in any way related to the judgment debtor or the judgment debtor has any business nexus with the appellant. Accordingly, the appellant cannot be treated as the garnishee. Unless it is established that the amount due from the garnishe e to the judgment debtor or so much thereof as is sufficient to satisfy the decr ee in the course of execution, the Court cannot compel any person to part with a ny property, the remittance in this case. He further submits that the Nahortali Tea Estate is owned by the Amalgamated Plantations Pvt. Ltd, not by the Tata Tea Ltd. The respondent, the decree holder did not also place any record before th e Executing Court to demonstrate that either the said Amalgamated Plantations Pv t. Ltd. or the Nahortoli Tea Estate, the appellant herein has been holding the p roperty or debt to the judgment debtor. Mr. Goswami further contended that the Executing Court did not also mention in the notice to the assumed garnishee that the debt is due to the judgment debtor, which is sine qua non for any garnishe e proceeding. In other words, there must exist a close-knit relationship amongst the creditor, the garnishee and the judgment debtor to enable the Court to pass an inviolable order under order XXI Rule 46(1)(a)(c) of the CPC on an applicati on filed by the judgment creditor. On the other hand, Mr. H. Sarma, learned counsel for the respond 15. ent-decree holder submits that Nahortoli Tea Estate, the appellant herein was un der the North East Indian Plantation operation of the Tata Tea Ltd. and as such without any substantiating materials the appellant cannot contend that there is no nexus with the judgment debtor, Tata Tea Ltd.

16. It appears from the affidavit filed by the Nahortoli Tea Estate, the appellant herein that the Nahortoli Tea Estate has demerged from the North Indian Plantation Organisation of Tata Tea Limited and vested in the Amalgamated Plantation Pvt. Ltd. by virtue of the provision of Section 391 & 394(1)(2) of t he Companies Act and on the strength of the order passed by the Calcutta High Court in Company Petition No. 123 of 2007 the said merger has been formalised. 17. After considering the materials available as part of the memoran dum of appeal and the contentions as advanced by the learned counsel for the par ties, this Court finds that the Executing Court did not record any finding in t he impugned order dated 10.07.2012 as regards exhausting of the other modes for resorting to the garnishing proceeding particularly in view of the order dated 1 6.06.2011 where it has been rightly observed that order XXI Rule 46(1)(a)(c) of the CPC speaks of attachment of debts, shares and other properties not in posse ssion of the judgment Debtor and is in the hand of third parties. Hence, the sai d proceeding can be resorted only if the judgment debtor i.e. Tata Tea ltd. has not paid the amount inspite of other modes exhausted, so at that stage, the peti tion under Order XXI Rule 46(1)(a)(c) of the CPC was not allowed. Save and excep t the issuance of notice on the Judgment Debtor for satisfying the decretal amou nt no other mode including the attachment proceeding of the properties held in t he name of the Judgment Debtor was resorted to. The respondent-decree holder can not set in a garnishing proceeding without exhausting the other modes. Apart tha t in the impugned order the Executing Court has observed that: (cid:28)Further more on going through the documents on which the decree was passed the Nahortoli Tea Estate long with other Tea Estate are also the defendants which ar e shown to be the tea gardens under the Tata Tea Ltd. It is also the provision o f law that the executing Court cannot go beyond the decree. Apparently it is see n that the ex-parte decree as yet not been set aside and when the ex-parte dec ree still in operation this court is bound by the decree so passed until and unl ess the ex-parte decree is set aside and the judgment is also set aside this Cou rt cannot cross its jurisdiction and go into the details of the facts as to whet her the Nahortoli Tea Estate is not a part of the Tata Tea Ltd. or whether the N ahortoli Tea Estate was demerged from the Tata Tea Ltd. and vested in a separate company namely Amalgamated Plantations Pvt. Ltd. with effect from 1.4.2007 he nce the objection and the petition and the submissions of the ld. Counsel in thi s regard of discharging liabilities of Nahartoli Tea Estate and also the bank ac count is not maintainable. This court has no jurisdiction to discharge the attac hment and drop the execution proceeding initiated against the bank account No. 3 0382802096 of Nahortoli Tea Estate. (cid:29) This Court has scrutinised the plaint as appended to the appeal as Enclosure-1 and also the judgment and decree of the Civil Judge, Dibrugarh. B ut nowhere is it found that the ’Nahortoli Tea Estate along with the other Tea E state’ are also the defendants in the suit in the proceeding. Even if it is assu med that Nahortoli Tea Estate was a defendant in the suit, the said tea estate w ould have been one of the judgment debtors, not the garnishee as treated by the impugned order. As such the finding of the Executing Court is entirely misplace d. The finding that the Executing Court cannot go into details of the fact as to whether Nahortoli Tea Estate is under operation of the Tata Tea Ltd. or whether the Nahortoli Tea Estate was demerged from the Tata Tea Ltd., is also untenabl e in view of provisions of Order XXI Rule 46C of the CPC which stipulates that w here the garnishee disputes the liability, the Court may order that any issue or question necessary for determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such ord er or orders as it deems fit. As such, the impugned order suffers from serious illegality and accordingly it stands quashed. The Executing Court is directed to enquire into the disputed que 18. stion as raised by the decree holder and the garnishee as per the provision of O rder XXI Rule 46C of the CPC. For that purpose, the reasonable opportunity shall be afforded to the parties to establish their respective claim. Apart that, it is open for the decree holder to shelve the garnishee proceeding for the time be ing for purpose of exhausting the other modes of executing the decree against th e judgment-debtor, Tata Tea Ltd. For the aforesaid reasons, the appeal stands allowed.