C HAMEED Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) I have heard the Petitioners learned Advocate. The point urged by him is that arrest and detention in prison is a coercive step which the law contemplates only in those of the cases where a party who possesses requiste resources to discharge the debt is avoiding to do so and the law contemplates a level of permissible pressure and threat of inprisonment to be used in order to ensure the recovery of the dues. In this regard, my attention has been drawn to the decision of the Supreme Court reported in A. I. R. 1980 S. C. 470 (Jolly George Varghese and Another vs. The Bank of Cochin) where in the Court had gone into the deeper aspect of whether, in the case of inability to discharge a debt a party can be imprisoned and the Supreme Court held that such imprisonment is unconstitutional. Mr. Natraj submits that the bank has not been able to show that the petitioner who is working as a coolie has the resources and the means to discharge the banks debt. His submission is that the oral evidence adduced on behalf of the bank stating that the petitioner is doing textile business and earning Rs. 5000/- per month is absolutely false and that the respondent bank has admitted that they have no other evidence to show that the petitioner has assets and is avoiding to pay.

(2.) WHILE the proposition of law canvassed is absolutely correct and while Mr. Natraj may be justified in pointing out to me that the evidence adduced by the bank has been countered by the petitioners oral evidence denying the correctness of the allegations that he possesses requisite resources to repay the debt and is avoiding to do so, what one needs to take serious cognizance of is the fact that where the bank official has stated that he has personally seen the petitioner doing textile business and even approximated his income, it would be difficult to say that there is absolutely no material on the basis of which the trial Court acted. Undoubtedly, the petitioner who is a debtor has denied the correctness of the evidence but this is merely word against word. It would therefore be difficult to interfere with the order passed by the Trial Court except to issue certain further directions: -