Kewal Kant v. Vijay Kumar Kandhari & Ors.

The petitioner one of the directors of respondent No.3- judgment debtor has approached this Court under Article 227 of the Constitution of India for setting aside the order dated 25.8.2011 passed by the executing court whereby the objections filed by the petitioner to C.R. No. 6037 of 2011 -2- the execution of the decree have been dismissed.

Briefly stated the facts may be noticed. A suit for recovery of Rs.60,000/- was filed by respondents No.1 and 2 against respondent No.3 which was decreed on 5.5.1997. The decree-holder-respondents No.1 and 2 filed an execution application against the company and during the pendency of the case, Ramesh Arora one of the Directors of the company died. The petitioner filed objections before the executing court . The said objections having been dismissed by the executing court, the petitioner has approached this Court by way of instant revision petition.

Learned counsel for the petitioner submitted that the decree dated 5.5.1997 could be executed against the company whereas the same was being executed against the personal property of the petitioner which was contrary to the provisions of law. Reliance was placed on the judgment of Kerala High Court in Kuriakose v. P.K.V. Group Industries, 2002 (2) ISJ (Banking) 416.

After hearing learned counsel for the petitioner, I do not find any merit in the submission of the learned counsel for the petitioner. The petitioner after putting in appearance on 9.6.2001 had filed the objections alleging himself to be judgment-debtor wherein he had agreed to discharge the liability of the company shown in the account books in order to avoid any controversy. The petitioner was debarred from backing out from the statement made before the executing court. The petitioner filed an affidavit on 7.8.2002 being director of M/s R.R. Fibber Pvt. Ltd-judgment debtor and had also made part payment of the decree when he was arrested. In such a situation, the petitioner was C.R. No. 6037 of 2011 -3- not entitled to raise objection relating to recovery of decretal amount against M/s R.R. Fiber Pvt. Ltd. from him. The relevant observations recorded by the executing court read thus:- “On 9.6.2001 the present applicant Kewal Kant appeared of his own and filed objections to the execution application alleging himself to be JD. He filed these objections on behalf of M/s. R.R. Fibber Pvt. Ltd. In the objections he had submitted that he was ready to pay the amount due to the DH shown in the account books in order to avoid any controversy. Thus, this person cannot back out from what he had himself pleaded. He had also filed an affidavit on

7.8.2002 in reply to the application under Order 21 Rule 41 CPC being Director of M/s R.R. Fibber Pvt. Ltd. whatever the documents in form of application/ reply were filed by the present applicant, those were filed by him on behalf of M/s R.R. Fibber Pvt. Ltd. From the very beginning he had been contesting execution application being Director of the Company against whom the decree has been passed. When he was arrested, he made a part payment of the decree amount. Thus, Kewal Kant now cannot presume himself to be separate from the company. Therefore, objections and applications filed by him are hereby ordered to be dismissed. He is directed to make remaining payment to the decree holder C.R. No. 6037 of 2011 -4- along with interest till date and for this purpose and in the interest of justice he is given 10 days time and the matter is adjourned to 6.9.2011 for making remaining payment.”

In Kuriakose's case (supra) before the Kerala High Court, where the property of the Managing Director of the company was sought to be attached for the recovery of the debts of the company, it was held that both being distinct entities, it could not be done. However, in the present case, the fact situation being different as the petitioner himself admitted to discharge the liability of the company, the same could not come to the rescue of the petitioner.

In view of the above, there is no merit in this revision petition and the same is hereby dismissed. October 18, 2011 (AJAY KUMAR MITTAL) JUDGE