RASHEED Vs. MUTHOOT LEASING AND FINANCE LTD

JUDGEMENT

(1.) PETITIONER is the third judgment debtor and surety for the principal debtor for the amount that the latter has borrowed from the first respondent. On the failure of the principal debtor to pay the amount, first respondent initiated arbitration proceeding and obtained an award. First respondent sought execution of that award before the first Additional District Judge, Kollam in E.P.No.71 of 2010. First respondent sought personal execution against petitioner alleging that in spite of having sufficient means he has refused to pay the amount due under the decree. That was resisted by petitioner contending that he has no means. Regarding means the Branch Manager of first respondent gave evidence as PW1 and stated that petitioner is earning `.9,000/- from his job and is having landed property. It is also the version of PW1 that petitioner has liquid cash in his custody sufficient to satisfy the decree. As against that, petitioner gave evidence as DW1 and denied that he has any means or liquid cash in his custody. Exts.B1 and B2 were produced to show that his mother is undergoing treatment in the R.C.C. Ext.B3 is produced to show that his liability to pay rent arrears has been considered by the local authority and he was permitted to pay the amount (to the tune of `.55,800/- in installments).

(2.) LEARNED counsel for petitioner contends that in the absence of sufficient evidence regarding means let in by the first respondent, the executing court was not correct in issuing warrant of arrest to the petitioner. According to the learned counsel, that amounted to violation of human right and placed reliance on the decisions in Jolly George Varghese Vs. Bank of Cochin (AIR 1980 SC 470), Jayadev Singh A.K Vs. M.A Majeeth (2010(2) KHC 730) and Abraham Vs. Maharashtra Apex Corporation Ltd. (2011(3) KLT 15).

(3.) GUIDED by the above principles I shall refer to the evidence on hand to decide whether executing court was justified in issuing warrant of arrest to the petitioner. PW1 who gave evidence on behalf of the first respondent claimed direct knowledge of the facts he has deposed. True, his evidence is not supported by any documentary evidence. Learned counsel points out that in cross examination of PW1 he stated that though, he had been to the institution (allegedly) run by petitioner, he had not seen petitioner in that institution at that time and he did not know how many items of furniture are kept there, etc. But, petitioner as DW1 admitted that he was conducting a D.T.P centre and cyber cafe. He also admitted that he has two staff. He claimed that he has stopped that business about 5 years back. He admitted that the shop stands in his name and regarding which, he has been made liable to pay rent arrears as seen from Ext.B3. In other words the establishment stands in the name of petitioner even now though he claimed to have stopped the business about 5 years back. Regarding that, what is available is only the version of petitioner. There is no case or evidence that pursuant to stopping the business, he has informed the authorities including the landlord about it. After he had stopped business, normally there was no necessity for him to continue occupation of the rented premises for about 5 years. These circumstances were taken into account by the executing court. There is the evidence of PW1 on behalf of the first respondent as against that of petitioner as DW1. On a consideration of the evidence, executing court found that version of the PW1 on behalf of the first respondent can be accepted. That finding is based on an appreciation of evidence on record. When a decision on the Court hinges on the appreciation of oral evidence, even the appellate court is not required to interfere unless there is something in the oral evidence which if noticed would have tilted the decision in favour of the appellant and which went unnoticed by the trial court. Now, petitioner requests this Court in exercise of its power under Article 227 of the Constitution to interfere with that finding. Article 227 is only to ensure that the subordinate civil courts acted within their bounds. Having heard learned counsel and considered the impugned order I am not inclined to think that the executing court has travelled beyond its bounds so that this Court is required to interfere under Article 227 of the Constitution. Therefore the challenge to the impugned order cannot stand.