M/S. Brakewel Automotive Components ... vs P.R. Selvam Alagappan

2. The subject matter of impeachment is the order dated 3.6.2016 rendered in CRP (NPD) 1499 of 2016 and CMP No. 8225 of 2016 by the High Court of Judicature at Madras, thereby rejecting the prayer of the appellant/plaintiff/decree-holder (for short, hereinafter to be referred to as “the appellant”) to eschew evidence of the respondent/defendant/judgment-debtor (for short, hereinafter to be referred to as “the respondent”) in a proceeding under Section 47 of the Code of Civil Procedure, 1908 (as amended) (hereinafter to be referred to as “CPC/Code”), as well as to dismiss such application as not maintainable. By the order impugned, the High Court has affirmed the determination made to the same effect by the Executing Court.

4. The genesis of the present lis is traceable to Civil Suit (OS) No. 1690 of 2010 instituted before the High Court of Delhi at New Delhi by the appellant against the respondent arrayed as the proprietor of M/s. Kargaappa Auto Products and M/s Paans Auto Products for recovery of Rs. 20,94,953/- arising from business transactions between the parties. While the appellant described itself to be a company registered under the Companies Act, 1956 and engaged in the business of manufacture and sale of auto components/parts, the respondent was introduced as the proprietor of the afore-named proprietorship firms. According to the appellant, the respondent approached it in the month of November, 2002 for a business deal and on the basis of the bargain entered into, it supplied auto components and parts to the respondent, as per the specifications mentioned and raised bills in connection therewith.

5. As per the books of account maintained in the regular course of business, at the relevant time i.e. 15.10.2007, Rs. 8,01,708/- was due and outstanding against the respondent in the accounts of M/s. Kargaappa Auto Products and Rs. 4,93,952/- as on 6.6.2008, in the account of M/s. Paans Auto Products, thus totalling Rs. 12,95,660/-. As this amount was not paid inspite of repeated demands, and the ultimate notice dated 28.12.2009, addressed by the appellant to the respondent, the suit was filed for realisation of the aforementioned amount together with interest @ 24% p.a. for an aggregate sum of Rs. 20, 94,953/-.

6. Though on the receipt of the summons in the suit, the respondent arranged for his representation, he eventually failed to submit his written statement and accordingly, his defence was struck off vide order dated 20.10.2011, in view of his persistent default to that effect. Subsequent thereto, the appellant filed the affidavit of one of its directors in endorsement of its pleaded case, who proved, amongst others, the copies of various invoices authenticating the supply of goods to the respondent and also the statement of accounts pertaining thereto. This witness too was not cross-examined on behalf of the respondent, though opportunity was granted and eventually the Trial Court, on a consideration of materials on record, decreed the suit for Rs. 18,95,077/- by allowing the interest @ 18% p.a. in lieu of 24%, as claimed.

7. As the records would reveal, a defective appeal was filed on behalf of the respondent thereafter only to be withdrawn in due course. The appellant launched the execution and the application in connection thereto was registered as E.P. No. 11787 of 2014 to execute the decree as aforementioned. It was thereafter that an application for review was filed by the respondent before the High Court seeking to recall the judgment and order dated 16.12.2011. It was pleaded by the respondent that the suit was not maintainable on account of non-joinder/mis-joinder of proper and necessary parties. Though he had admitted that he was the proprietor of Paans Auto products, he asserted that he was not so of M/s. Kargaappa Auto Products and that instead his wife Mrs. A. Kamalla being so was the proper and necessary party and that in view of this defect, the suit was liable to be dismissed. He also pointed out that the name of this firm is M/s. Karpaga Auto Products and not M/s. Kargaappa Auto Products, as recited in the plaint. The respondent alleged fraud as well and contended that the appellant was guilty of suppression of material facts of rejection of its goods. Further, he also alleged collusion and connivance between his counsel and the appellant for which the former deliberately abstained from taking necessary steps to ensure his effective representation in the suit, thus resulting in the ex-parte decree.

9. Noticeably, the respondent in his review application disclosed that his said counsel however did prefer an appeal against the ex-parte decree, which eventually was returned in view of the attendant defects. The appeal was however not re-filed and that in the meanwhile, a complaint had been lodged against the counsel with the Bar Council of Tamil Nadu at Channai, was mentioned as well.

12. In refutation, the appellant did file a common counter- affidavit asserting that the respondent had placed orders for automobile components, which were accordingly dispatched and as on the date of the institution of the suit, the payments in connection therewith were outstanding, a suit was filed to recover the same and eventually, it was decreed on 16.12.2011 for a sum of Rs. 18,95,077/- along with pendente lite and future interest @ 18% p.a. Apart from highlighting that the respondent had after the receipt of the summons/notices in the suit, continuously abstained himself from contesting the same by filing his written statement or taking further initiatives and that, therefore the decree passed was valid in law, the appellant maintained that the suit had been filed against the respondent, as he represented both the firms and had participated in the transactions in that capacity for which either the mistake in the name of M/s. Kargaappa Auto Products instead of M/s Karpaga Auto Products or non-impleadment of his wife as the sole proprietress thereof was wholly inconsequential qua the aspect of executability of the decree. The allegation of suppression of any material fact, as alleged was denied. The accusation of collusion between the learned counsel for the respondent and the appellant was stoutly denied as well. It was pointed out that the fact of filing of appeal preferred by the same counsel against the decree belied the allegation of dereliction of duty as unfounded. Underlining the inexplicable delay and inaction of three years on the part of the respondent in filing the review petition, it was contended that the resistance to the executing proceedings was only with the objective of protracting the proceedings to his advantage on flimsy and frivolous grounds.

19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.

23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.

24. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. No costs.

MARCH 21, 2017.