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Umesh Khanna (CEO)     05 January 2014

Judgement debtors

Sirs, 

the directors of a company are judgement debtors too along with the company.is the ancestral property of the directors attached in an execution  court?

 

regards



Learning

 1 Replies

Kumar Doab (FIN)     07 January 2014

This is an interesting thread.

The affirmative answers shall help many.

 

Valuable advice of learned experts/members is sought.

 

Kindly provide the supporting citations also.

 

Given below is a heartfelt opinion only.

 

For a precise answer you may approach a lawyer specializing in such matters along with copy of each document and facts on record.

 

>>  It might an opinion that “The property can be attached when the mutation is on the name of..............................”

 

 

>> THE CODE OF CIVIL PROCEDURE, 1908 (Sec 51 to 93)

Attachment

[36][60. Property liable to attachment and sale in execution of decree? (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit,whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf :”

 

Kindly go thru................................

 

>> Kerala High Court

Indian Overseas Bank vs A.B. Senan And Anr. on 25 January, 1999

https://www.indiankanoon.org/doc/1000493/?type=print

 

“1......................The Court below, by the impugned order, has held that the suit was filed for getting certain amounts from the first defendant, which is a private Limited Company, Respondents 1 and 2, who were defendants 2 and 3, were only Managing Director and Director respectively. Unless any fraudulent act was pleaded, no personal liability can be tacked on to respondents 1 and 2.”

 

 

 

“2. Learned counsel further submitted that it was contended before the trial Court by defendants 2 and 3 that they are not necessary parties. In fact Issue No. 2 was whether defendants 2 and 3 are necessary parties. The trial Court held that they are necessary parties. “

 

3...................“Thereafter the Court went on to hold as follows (at page 82) :--

"The directors are personally liable to persons who lend money to the company only if they obtain the loan by fraudulent misrepresentations. It is, therefore, obvious that directors are generally immune from liability to creditors of their company."

“8. That is a circumstance when the executing Court is allowed to go behind the decree because usually the rule is, the executing Court cannot go behind the decree. In this context, it is useful to refer the decision of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (1971) 1 SCR 66 : (AIR 1970 SC 1475) “

 

“8.

 

The question whether defendants 2 and 3 are personally liable is a question of law and fact. If the trial Court was wrong, then defendants 2 and 3 ought to have agitated the matter by taking it in the hierarchy of proceedings. Added to this, there is the other fact that the defendants 2 and 3 attempted to correct the judgment and decree. The Court held that it was not a mistake; but defendants 2 and 3 were personally made liable on judicial reasoning.

 

In the above view of the matter, I set aside the impugned order. I hold that respondents 1 and 2 are personally liable for the decree and their properties can be proceeded against.

The C. R. P. is allowed.”

 

 

 

 

>> Supreme Court of

India

S. M. Jakati & Another vs S. M. Borkar & Others on 24 September, 1958

 

https://www.indiankanoon.org/doc/981621/

 

 

HEADNOTE:

j was the managing director of a Co-operative Bank getting a yearly remuneration of Rs. 1,000. The Bank went into liquidation and an examination of the affairs having showed that the monies of the Bank were not properly invested and that J was negligent in the discharge of his duties, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co-operative Societies against him. On July 27, 1942, for the realisation of the amount, an item of property belonging to the joint family of J was attached by the Collector and brought to sale under s. 155 of the Bombay Land Revenue Code, and purchased at auction by the first respondent. This sale was held on February 2, 1943, and confirmed on June 23, 1943. 

Held, that the liability which J incurred was not avyava- harika and that the sale of the joint family property, including the share of the sons, for the discharge of the debt, was valid.

 

 

 

 

 

And also to have a feel of how the matters are contested to slip away........................from the clutches of law

 

 

 

>> IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT : CODE OF CIVIL PROCEDURE

 

EXECUTION APPLICATION NO. 297 OF 2004

IN

EXECUTION PETITION NO. 99 OF 1997

 

Judgment reserved on: July 31, 2007

 

Judgment delivered on: December 4, 2007.

 

M/s. Microland Ltd. ..... Decree Holder

Through: Mr. Pankaj Gupta, Advocate

 

 

versus

 

Microworld Electronics Pvt. Ltd

and Others. ..... Judgment Debtors

 

https://delhidistrictcourts.nic.in/Dec07/Microland%20Ltd.%20vs.%20Microworld%20Electronics.pdf

 

*IN THE HIGH COURT OF DELHI AT NEW DELHI

 

+ Ex. App. No.516/2009 in Ex.P. No.295/2003

 

 % Date of decision: 9

th

 February, 2010

 

 V.K. UPPAL ..... Decree Holder

Through: Mr. Rajat Aneja, Advocate.

 

Versus

 

M/S AKSHAY INTERNATIONAL PVT. LTD. ..... Judgment Debtor

 

“9. The Transfer of Property Act in Section

53 thereof allows a creditor to have a transfer of property made with an intent to defeat

the creditor set aside. However, the decree holder has not made out/pleaded any case of

transfer also.

https://delhidistrictcourts.nic.in/Feb10/V.K.%20Uppal%20Vs.%20Akshay%20International%20Pvt.%20Ltd..pdf

 

 

 

 


Attached File : 503103063 supreme court of india s m jakati and another vs s m borkar and others.doc, 503103063 indian overseas bank vs a.b. senan and anr. on 25 january, 1999.doc downloaded: 133 times

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