IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 29580 of 2009(O) -------------------------- OS.256/2003 of ADL.SUB COURT, THALASSERY .................... PETITIONER(S): --------------- M.RAJEEV, NALINI NIVAS, PALLIKUNNU P.O., KANNUR-4. BY ADV. SRI.V.PREMCHAND RESPONDENT(S): --------------- K.C.AJITH, GOVINDA SADAN, CHOVVA P.O., KANNUR. ADV. SRI.K.RAJESH SUKUMARAN FOR R1 THIS WRIT PETITION ( CIVIL ) HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXTS: EXT.P1:- COPY OF EXECUTION PETITION NO.358/2008 IN O.S.NO.256/2003 OF ADDL.SUB COURT, THALASSERY DTD.18.11.2008 EXT.P2:- COPY OF DETAILED OBJECTION EXECUTION PETITION NO.358/2008 IN O.S.NO.256/2003 BEFORE THE ADDITIONAL SUB COURT, THALASSERY EXT.P3:- COPY OF AGREEMENT DTD.7.5.2006 EXT.P4:- COPY OF ORDER IN EXECUTION PETITION NO.358/2008 IN O.S.NO.256/2003 OF ADDITIONAL SUB COURT, THALASSERY DTD.10.7.2009 EXT.P5:- COPY OF E.A.NO.577/2009 IN EXECUTION PETITION NO.358/2008 IN O.S.NO.256/2003 OF ADDITIONAL SUB COURT, THALASSERY DTD.11.8.2009 RESPONDENT'S EXTS: EXT.R1:- COPY OF AGREEMENT DTD.7.5.2006 ENTERED INTO BETWEEN THE RESPONDENT AND THE PETITIONER AND HIS WIFE EXT.R2:- COPY OF AGREEMENT DTD.7.5.2006 ENTERED INTO BETWEEN THE RESPONDENT AND THE PETITIONER AND HIS WIFE EXT.R3:- COPY OF LAWYER NOTICE DTD.8.6.2008 SENT TO THE PETITIONER AND HIS WIFE EXT.R4:- COPY OF AGREEMENT ENTERED INTO PARTIES DTD.26.6.2008 /TRUE COPY/ P.A.TO JUDGE THOMAS P.JOSEPH, J. ------------------------------ W.P.(C) No.29580 of 2009 ------------------------------ Dated this the 3rd day of August, 2010 JUDGMENT In the year 2006 respondent obtained a decree against petitioner for realisation of Rs.16,00,000/- with interest which at the time respondent launched E.P.358 of 2008 swelled into more than Rs.18,00,000/- with liability to pay further future interest. At that time there was an agreement between petitioner and the respondent evidenced by Ext.P3 as per which respondent was to withdraw certain amount deposited by petitioner in five cases filed by the respondent under Section 138 of the Negotiable Instruments Act. It was also agreed that petitioner shall pay the amount in 90 equal monthly installments of Rs.20,000/- each aggregating to Rs.18,00,000/-. Petitioner was to make payments to the respondent on the due dates mentioned in Ext.P3, agreement. Alleging that terms of the agreement are not complied respondent filed E.P.No.358 of 2008 and sought personal execution against petitioner. Executing Court after considering materials on record came to the conclusion that petitioner, having means has neglected or refused to pay the W.P.(C) No.29580 of 2009 2 amount due under the decree and issued warrant of arrest. Ext.P4 order to that effect is under challenge. Learned counsel for petitioner contends that there was no willful laches on the part of petitioner in paying the amount due under the decree. According to the learned counsel, petitioner did not pay the amount since respondent did not comply with his part of Ext.P3, agreement. It is also contended by learned counsel that after Ext.P4, order petitioner had filed Ext.P5, application to recall the warrant where it was contended that petitioner has no means to pay the amount. In the circumstances, order is bad in law. Learned counsel for the respondent contends that apart from Ext.P3, agreement three other agreements (produced along with the counter and marked Exts.R1, R2 and R4) were also executed between the parties all of which have been violated by petitioner and hence respondent is entitled to proceed with execution of the decree. It is also contended by learned counsel that there was no contention raised by petitioner before Ext.P4, order was passed that he has no means to pay the amount. 2. On the contention whether petitioner is entitled to continue to pay the amount in terms of Ext.P3, agreement it is W.P.(C) No.29580 of 2009 3 seen from Ext.P4, order that Executing Court has entered a finding that petitioner has not complied with the conditions regarding payment of the amount stated in Ext.P3. That, the said amounts were not paid before due dates as stated in Ext.P3 is not disputed by the learned counsel for petitioner as well. Learned counsel for the respondent argues from Exts.R1, R2 and R4 that it is in the light of the said agreements to be entered into that petitioner and respondent executed Ext.P3 agreement. Petitioner has violated Exts.R1, R2 and R4 agreements. As pointed out by the executing court, and, as revealed from Exts.R1, R2 and R4, petitioner has not complied with the terms and conditions of the said agreements and hence there is nothing illegal in respondent proceeding with execution of the decree. 3. So far as the finding of the executing court as to means of petitioner is concerned, it is true that no evidence was recorded. But I must bear in mind that petitioner had not dispute the case of respondent that he has means. Claim regarding no means came only after Ext.P4, order was passed and when petitioner filed Ext.P5, application to recall the warrant. Certainly that was not the the appropriate time when a plea of no means W.P.(C) No.29580 of 2009 4 should and could have been raised by petitioner. Moreover, in the light of Exts.P3, R1, R2 and R4 petitioner cannot contend that he has no means. It is revealed from Exts.R1 and R2 that petitioner is engaged in business. In the circumstance, finding of the Executing Court that petitioner has means does not require interference. 4. Petitioner has an argument that there was no willful laches on his part in paying the amount. Once means is proved and, there is non payment of the amount it is possible to infer that there is neglect or refusal to pay the amount. If that be so, it is idle for petitioner to contend that there was no willful laches to pay the amount. Having heard counsel on both sides and gone through the order under challenge as well as the materials placed before me, I do not find reason to interfere with the order under challenge. 5. Learned counsel for petitioner stating that even after the impugned order, certain amounts have been paid by petitioner requested that petitioner may be permitted to pay the balance amount due in installments. I make it clear that it is open to the petitioner to make such a request in the Executing Court and in W.P.(C) No.29580 of 2009 5 case any such request is made Executing Court shall decide on that request after hearing counsel for the respondent as well. Resultantly, with the observation made above, this writ petition is disposed of . THOMAS P.JOSEPH, JUDGE cms