Ms. Shriram City Union Finance Ltd., Ongole-Ii Vs Sk. Abdul Samad
Case Details
 Case Type | EP |
 Filing Number | 101488/2016 |
 Registration Number | 100034/2016 |
 Filing Date | 18-03-2016 |
 Registration Date | 12-04-2016 |
 First Hearing Date | 14th June 2016 |
 Decision Date | 22nd January 2018 |
 Case Status | Case Disposed |
 Court Number and Judge | 1-Principal District And Sessions Judge,Ongole; |
 Nature of Disposal | Contested--Closed; |
Petitioners & Respondents
Petitioner Ms. Shriram City Union Finance Ltd. OngoleIi, ;
.svg){kind=icon}
Petitioner AdvocateDanduri Venkateswarlu;
Respondent NameSk. Abdul Samad, Sk. Karimunnisa, Pathipati Venkateswarlu, Yamarapu Srinivasulu;
Order Details
Order Details
Order not found.
Final Order Judgement
| Order Date | 22-01-2018  |
| 1 IN THE COURT OF THE DISTRICT JUDGE, PRAKASAM, AT ONGOLE Present: Smt. M.G.Priyadarshini, Principal District Judge, Ongole Monday, this the 22nd day of January, 2018. E.P. No.34 OF 2016 Arbitration Case No.187 of 2015 [Before the Sole Arbitrator, Nellore] Between: M/s. Shriram City Union Finance Ltd., Ongole, Rep. by its Divisional Officer, G.V.S.K.Phani Kumar, son of Subba Rao, Resident of Ongole. … Decree Holder. And 1. Shaik Abdul Samad, son of Kamal Saheb, Aged 48 years, D.No.37/1/158/100/C, Mahendra Nagar, II Line, Ongole. 2. Shaik Karimunnisa, wife of Kamal Saheb, Aged 46 years, D.No.37/1/158/100/C, Mahendra Nagar, II Line, Ongole, Prakasam District. 3. Pathipati Venkateswarlu, son of P.Venkata Subbaiah, Aged 48 years, Junior Assistant, Kondapi Junior College, Kondapi, Prakasam District. 4. Yamarapu Sreenivasulu, son of Venkaiah, Aged 42 years, Secondary Grade Teacher, M.P.P. School, Yellaiah Nagar, Chimakurthy, Prakasam District. … Judgment Debtors This petition is coming before me for final hearing on 08.01.2018 in the presence of Sri D.Venkateswarlu, Advocate for the Decree Holder and of Sri Raja Ram. M, Advocate for the Judgment Debtor No.4 and the E.P. is filed against the Judgment No.4 only, upon hearing the Advocates on record, upon perusal of the material available on record and having stood over for consideration till this day, this Court delivered the following:- // O R D E R // 1. This execution petition is filed under Order 21, Rule 48 of Civil Procedure Code against the Judgment debtor No.4, praying for attachment of his salary, for realization of the E.P. amount. 2 2. The facts of the case are that the Decree holder i.e., M/s. Shriram City Union Finance Ltd., Ongole, had filed this execution petition contending that the Sole Arbitrator, Nellore, was pleased to pass an Award on 15.10.2015 directing the respondents/J.Drs to pay an amount of Rs.1,89,205/- with subsequent interest and costs, but even after passing the award they failed to pay the said amount as ordered by the Sole Arbitraor, therefore, they constrained to file the present petition. It is further contended that after the Award the D.Hr company staf approached the J.Drs several times, for payment, but they intentionally avoiding the payment. It is further averred that the J.Dr No.4 is working as Secondary Grade Teacher, M.P.P. School, Yellaiah Nagar, Chimakurthy and getting considerable amount towards salary and he has got sufficient means and capacity to pay the E.P. amount, but the J.Dr No.4 did not choose to repay the award amount till today and willfully evading to discharge the said amount. Hence, the D.Hr was constrained to file this execution petition for attachment of the salary of the J.Dr No.4 for realization of the Award amount. 3. The J.Dr No.4 filed counter denying the averments of the petition and contended that the E.P. filed for attachment of the salary of this J.Dr is not maintainable as there is another attachment against this J.DR and moreover the present E.P. is filed suppressing the facts and the same cannot be legally enforceable in the Court of law. The D.Hr company monopoly appointed the alleged Arbitrator by taking away the territorial jurisdiction of this Hon'ble Court beyond another district to decide the dispute between the parties and obtained award in a fraudulent manner and without transferring the award from arbitration Court at Nellore to Prakasam District, the present E.P. is not maintainable. It is further averred in the counter that the D.Hr 3 company obtained attachment orders against the salary of this J.Dr in the present case as well as properties in another case against 1st J.Dr and moreover during pendency of execution proceedings, the D.Hr company threatened the 1st J.Dr/Principal borrower and received Rs.30,000/- from him on 29.05.2016, but the same was not shown in the present E.P. There are no grounds and merits in this petition and the present E.P. is filed only to harass this J.Dr. Hence, prays to dismiss the E.P. with costs. 4. During the course of enquiry both parties did not adduce any oral or documentary evidence. 5. Heard both sides. 6. Now the point for consideration is : “Whether the D.Hr. is entitled for the attachment of salary of J.Dr Nos.1 and 2 for realization of the E.P. amount ?” 7. Point :- (a) The Award was passed by the Sole Arbitrator against the J.Drs No.1 to 4 jointly and severally for a total amount of Rs.1,1,89,205/-. The present E.P. is filed against the J.Dr No.4 for attachment of his salary for realization of the decreetal amount. After service of Rule 38 Notice, the J.Dr No.4 made his appearance through his counsel and contested the petition by filing counter. It is the contention of J.Dr No.2 that the D.Hr company monopoly appointed the learned Arbitrator and obtained award out side the territorial jurisdiction of this Hon'ble Court, which is not executable in the eye of law. Moreover, the learned Arbitrator has not followed the procedure as contemplated and hence the Award passed is illegal and cannot be enforceable. The agreement executed by the J.Drs for obtaining the 4 loan on 31.03.2013 is not disputed by this J.Dr. A perusal of the Award in Page No.3 of Para No.4, the learned Arbitrator has clearly mentioned that, as per Clause 11.1 of the Loan Agreement, any dispute, diference and or claims arising out of or in connection with the performance shall be referred to sole arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996 appointed by the claimant and hence this authority has got jurisdiction to entertain the above case. Therefore, it is clear that there is an agreement between the D.Hr and J.Drs in regard to arbitration and the said agreement was agreed by the J.Drs and now this J.Dr cannot be permitted to contend that there was no such agreement between them. Further as per Sec.34 of the Arbitration and Conciliation Act, the Award can be challenged within three months from the date of the knowledge. Admittedly, the J.Dr No.4 had not challenged the award passed by the Sole Arbitrator either by preferring appeal or by filing petition to set aside the exparte order passed against him. Without availing the opportunities, he straight away denying the award on its maintainability before the execution court. Therefore, the objections raised by the J.Dr No.4 about legality of award passed by the Sole Arbitrator during the course of execution proceedings, cannot be justifiable and considered. (b) Further it is argued by learned counsel for the J.Dr No.4 that he is only a guarantor and the E.P. against him is not enforceable without existing the remedies against the principal borrower. The case record clearly discloses that JDr No.1 availed loan from the D.Hr and J.Drs No.2 to 4 stood as guarantors for the said loan and executed agreement of guarantee making themselves liable for repayment of the loan amount, but even after receipt of notices in the Arbitration O.P. and in the E.P. filed before this Court, the J.Dr No.4 did not bother 5 to pay the Award Amount, therefore, the action taken by the D.Hr for recovery of its dues by issuing notices and by filing E.P. cannot be faulted on any legally permissible ground. Further it is settled principle of law that the decree-holder can execute the decree against the guarantor without proceeding against the principal borrower and in this context reliance can be placed on a Judgment in between State Bank of India v. M/s. Indexport Registered and others (1992) 3 SCC 159, wherein his Lordship had observed as follows :- “The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree-holder. The question arises whether a decree which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the [principal debtor].” It is the D.Hr to execute the decree in any modes what all the remedies available to him and he can execute the same against the guarantors without proceeding against the principal borrower. (c) It is the further contention of J.Dr No.4 that the present E.P. filed by the D.Hr company for attachment of his salary is not maintainable as there is another attachment against this J.Dr. At this juncture it is pertinent to state that after filing of E.P., Rule 48 notice was ordered against the J.Dr No.4 directing the garnishee to attach the salary of J.Dr No.4 as per Sec.60 of C.P. and the same was served on the J.Dr as well as garnishee, the attachment was efected and the garnishee is remitting the warrant amount by deducting from the salary of J.Dr No.4 subject to section 60 C.P.C. and there is no information or endorsement from the garnishee of J.Dr No.4 that the salary of J.Dr No.4 was got attached in any other E.P. Moreover, the 6 J.Dr No.4 also did not file any scrap of paper before this Court to show that his salary was got attached by any other Court. At this juncture it is argued by the learned counsel for the J.Dr No.4 that during pendency of proceedings, the 1st J.Dr paid an amount of Rs.30,000/- on 29.05.2016, but the same was not credited to this E.P., which shows the fraudulent attitude of the D.Hr company and on that count also the E.P. is liable to be dismissed. As seen from the record, on 06.07.2017 the D.Hr company has filed Part Satisfaction Memo before this Court stating that on 29.05.2016 and 22.06.2015 the 1st J.Dr directly paid an amount of Rs.30,000/- and Rs.20,000/- to the D.Hr company respectively and the said memo was recorded, therefore, the above said contention of the learned counsel for the J.Dr No.4 is not justifiable and falls to ground. Further there is no dispute that the J.Dr No.4 is working as Secondary Grade Teacher, M.P.P. School, Kanaparthi (Thopu), Naguluppalapadu Mandal and drawing salary and having got sufficient means and capacity. Therefore, under these circumstances, this Court is satisfied that the D.Hr. is entitled for order of attachment of salary of J.Dr No.4 for realization of fruits of the Award passed by the sole Arbitrator. At this juncture it is brought to the notice of the Court that after filing of this execution petition, notices under Or.21 Rule 48 of CPC was issued against the J.Dr No.4 directing the garnishee to attach his salary and to remit the warrant amount to this Court and the same was served on the garnishee and attachment was efected on 04.05.2016 and amounts are receiving from the garnishee. Since the attachment against J.Dr No.4 was already efected and amounts are receiving from the garnishee, hence it is enviable to made absolute. Accordingly, the point is answered. 7 8. In the result, the objections of J.Drs No.4 at this stage of Under Or.21, Rule 48 CPC notice are overruled. Since the attachment of salary of J.Dr No.4 already efected and amounts are receiving from garnishee, it is hereby made absolute. Typed to my dictation by the Personal Assistant, corrected and pronounced by me in Open Court, this the 22nd day of January, 2018. PRINCIPAL DISTRICT JUDGE, ONGOLE. // APPENDIX OF EVIDENCE // Neither party adduced any oral or documentary evidence. PRINCIPAL DISTRICT JUDGE, ONGOLE. 8 IN THE COURT OF THE DISTRICT JUDGE, PRAKASAM, AT ONGOLE Present: Smt. M.G.Priyadarshini, Principal District Judge, Ongole Monday, this the 22nd day of January, 2018. E.P. No.34 OF 2016 Arbitration Case No.187 of 2015 [Before the Sole Arbitrator, Nellore] Between: M/s. Shriram City Union Finance Ltd., Ongole, Rep. by its Divisional Officer, G.V.S.K.Phani Kumar, son of Subba Rao, Resident of Ongole. … Decree Holder. And 1. Shaik Abdul Samad, son of Kamal Saheb, Aged 48 years, D.No.37/1/158/100/C, Mahendra Nagar, II Line, Ongole. 2. Shaik Karimunnisa, wife of Kamal Saheb, Aged 46 years, D.No.37/1/158/100/C, Mahendra Nagar, II Line, Ongole, Prakasam District. 3. Pathipati Venkateswarlu, son of P.Venkata Subbaiah, Aged 48 years, Junior Assistant, Kondapi Junior College, Kondapi, Prakasam District. 4. Yamarapu Sreenivasulu, son of Venkaiah, Aged 42 years, Secondary Grade Teacher, M.P.P. School, Yellaiah Nagar, Chimakurthy, Prakasam District. … Judgment Debtors This execution petition is filed under Order 21, Rule 48 of Civil Procedure Code against the Judgment debtor No.4, praying for attachment of his salary, for realization of the E.P. amount. This petition is coming before me for final hearing on 08.01.2018 in the presence of Sri D.Venkateswarlu, Advocate for the Decree Holder and of Sri Raja Ram. M, Advocate for the Judgment Debtor No.4 and the E.P. is filed against the Judgment No.4 only, upon hearing the Advocates on record, upon perusal of the material available on record and having stood over for consideration till this day, this Court DOTH ORDER AND DECREETAL ORDER:- 1. That the objections of J.Dr No.4 at this stage of Under Or.21, Rule 48 of C.P.C. notice are overruled and since the attachment of salary of J.Dr No.4 already efected and amounts are receiving from garnishee, it is hereby made absolute, and; 2. That there be no order as to costs. (Cm & Fc not filed on either side) Given under my hand and the seal of the Court, this the 22nd day of January, 2018. PRINCIPAL DISTRICT JUDGE, ONGOLE. |
Similar Cases
Frequently Asked Questions
The Petitioner in case Ms. Shriram City Union Finance Ltd., Ongole-Ii vs Sk. Abdul Samad is Ms. Shriram City Union Finance Ltd., Ongole-Ii.
The Respondent in case Ms. Shriram City Union Finance Ltd., Ongole-Ii vs Sk. Abdul Samad is Sk. Abdul Samad and 4 more.
The case against Sk. Abdul Samadwas filed on 18-03-2016 by Ms. Shriram City Union Finance Ltd., Ongole-Ii.
The status of case Ms. Shriram City Union Finance Ltd., Ongole-Ii against Sk. Abdul Samad is Case Disposed.