Sebastian Jose Vs. Indian Overseas Bank Ltd. - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]orderk. surendra mohan, j.1. the first respondent, indian overseas bank ltd. filed a suit o.s.77/2003 for the realisation of amounts due from the revision petitioner who was an employee of the bank. the allegation is that the revision petitioner had during the course of his employment with the bank, committed misappropriation of funds of the bank. on the very same allegations the c.b.i. conducted an investigation and launched prosecution proceedings against the revision petitioner, in which it is reported that he has been convicted. the misappropriation is stated to be to the tune of rs. 75,63,295/-. the bank initiated disciplinary proceedings against the revision petitioner and has terminated his services. the bank also filed the suit from which the above revision arises for recovery of the amounts misappropriated by the revision petitioner.2. the petitioner is a subscriber to life insurance policies. the petitioner had kept these policies in his cabin, while he was working with the first respondent-bank. the policies in original were taken possession of by the bank. in the suit, o.s. no. 77/2003 of the sub court, thiruvalla, the first respondent filed an application as i.a. no. 957/2003 for attachment of the amount scheduled to the petition which represented the surrender value of the lic policies in the name of the revision petitioner. it was alleged that the petitioner had applied for disbursement of the surrender value of the policies with the object of defeating his creditors. therefore, the first respondent-bank prayed for the issue of a conditional attachment ordering the revision petitioner to furnish security and in the event of such security being not furnished, to attach the surrender value of his life insurance policies.3. the revision petitioner filed counter objecting to the attachment. after hearing the contesting parties, as per order dated 6.11.2004 the sub court, thiruvalla passed the order under revision allowing the petition. as per the order, the revision petitioner has been directed to furnish security for an amount of rs. 25,985/- to the court on or before 7.1.2004. meanwhile, conditional attachment of the scheduled amounts also has been ordered. the said order is under challenge in the above revision petition.4. according to the counsel for the revision petitioner, section 60(1)(kb) of the civil procedure code, amounts covered by life insurance policies are not liable to be attached. therefore, according to the counsel the court below exceeded its jurisdiction in ordering attachment of the surrender value of his life insurance policies. he relies on the decision of this court reported in sasidharan v. k.c.t.s.s. sangam 1994 (1) klt 429 and also on a decision of the madras high court in canara bank v. palani dated 2.1.1995 rendered in 1995 (1) klt 29 (c. no. 40) mad. : c.r.p. no. 732/1989. as per the above decisions the surrender value of insurance policies are exempt from attachment by court, it is contended.5. the submissions of the counsel for the revision petitioner are opposed by the counsel for the first respondent. according to the counsel, the provisions of section 60(1)(kb) contained an exemption from attachment which was a beneficial provision that should be strictly construed. it was not a provision that should be given an amplitude larger than what is contemplated by the exemption. according to the learned counsel, the revision petitioner was a person who had committed misappropriation of huge amounts of money, the prospects of recovery of which is very bleak. if the revision petitioner were allowed to receive and appropriate the amounts covered by the insurance policies, the bank would be left with no means to recover the amounts due to it. therefore, it is pointed out that the provision should be read down as done by the court below and an order of attachment should be ordered.6. i have heard adv. mr. vivek varghese for the revision petitioner, adv. mr. philip mathew for the first respondent and adv. mr. p.b. sahasranaman for the second respondent-insurance company. i have anxiously considered the contentions advanced by the counsel.7. it is reported that the suit o.s. no. 77/2003 is still pending and that the trial is only about to begin. therefore, the liability of the revision petitioner is yet to be ascertained and quantified by the court after trial. whether the revision petitioner would ultimately be liable for the amounts claimed by the first respondent-bank would have to be determined in the suit. what arises for consideration here is only whether the revision petitioner should be directed to furnish security for the plaint claim. there is no evidence to show whether the revision petitioner is possessed of immovable properties or other assets. however, in the present petition what is sought to be attached is only the surrender value of the life insurance policies of the revision petitioner. therefore, the only question that arises for determination is whether the order of the court directing attachment of the surrender value of the life insurance policies of the revision petitioner is sustainable or not.8. section 60(1)(kb) of the code of civil procedure provides that 'all moneys payable under a policy of insurance on life of the judgment debtor' is exempt from attachment the words used in the provision are 'all moneys' which means that all amounts payable under a policy of insurance are specifically exempted from attachment by the above provision. the provision does not exclude the amount which represents the surrender value of life insurance policies, as contended by the counsel for the first respondent. since the express words of the provision are clear and unambiguous, the full amplitude of the meanings of the words that are actually used, viz., 'all moneys payable under a policy of insurance, have to be given to the provision.' in the absence of any words or expressions in the provision indicating the exclusion of the surrender value of life insurance policies from the ambit of the exemption granted by the provision, there is no justification for restricting the scope of the provision by reading down the words used by the legislature. therefore, the surrender value of life insurance policies comes within the scope of the exemption contained in section 60(1)(kb) of the code of civil procedure. hence, the court below erred in ordering attachment of the said amount which represents payment under life insurance policies.9. i am supported in this view by the decision of this court reported in 1994 (1) klt 429 (supra) where the question was whether the amount in deposit as provident fund was attachable or not. after considering the question this court has held that once the deduction has gone into the provident fund, the amounts so collected cannot be attached since the same was exempted from attachment. the court has hastened to add that the amount continues to enjoy the exemption only so long as it retains its character as provident fund amount. the moment it is paid to the person to whom it is due, it becomes his property which can be attached in his hands. the very same view has been taken by the madras high court in 1995 (1) klt 29 (c. no. 40) mad. : c.r.p. no. 732/1989 referred to above. in the said case, where the exempted amount was deposited in bank as a fixed deposit, it was held that the fixed deposit did not enjoy the benefit of exemption.10. the scope of the exemption under section 60(1)(kb) has been considered by the supreme court in radhey shyam gupta v. punjab national bank : 2009 (1) klt sn 40 (c. no. 44) sc : air 2009 sc 930. in the said decision, the question was whether the pensionary benefits and gratuity received and converted into fixed deposit by the judgment debtor was exempt from attachment under section 60(1) of the code of civil procedure. after considering the aspect in detail, the honourable supreme court has held that since the amount represented pensionary benefits, such amounts retained their character even after they were received by the judgment debtor and after conversion into fixed deposits in his name. in the above view the supreme court has held that the exemption contained in section 60(1) of the cpc extended even to pensionary benefits converted into fixed deposits. however, it is pointed out by the counsel for the first respondent that in another decision in union of india and anr. v. wing commander, r.r. hingorani (retd.) : air 1987 sc 808, it has been held that money due on account of pension or commuted pension due to the judgment debtor would change character in his hands and would become liable to attachment after the same is converted into deposit whether fixed or otherwise.11. it is to be noted that the exemptions contained in section 60(1) of the code of civil procedure relate to different types of payments made to the judgment debtor as pension or pensionary benefits or under insurance policies. the relevant provision that applies to payments under life insurance policies specifically provide that the said amounts are exempt from attachment. however, once the said amount is received by the policy holder either in person during his life time or by his legal representatives after his death it would cease to retain its character. when the amount is received by the policy holder during his lifetime it becomes his personal property and when the same is received by his legal representatives after his death, it would become part of his estate. either way, the money so received by him would be liable for attachment in his hands. but so long as the money retains its character as amounts payable under life insurance policy, it would continue to enjoy the benefit of exemption contained in section 60(1)(kb) of the code. the above being the legal position, it is clear that, the court below was wrong in attaching the surrender value of the insurance policies of the revision petitioner. the order under revision is without jurisdiction and is liable to be set aside.12. the counsel for the first respondent contended that the revision itself was not maintainable on two grounds - firstly in view of the express bar contained in the proviso to section 115 and secondly in view of the specific remedy of appeal available under order xliii rule 1(q) of the code of civil procedure.13. the question as to whether an order passed under order xxxviii, rule 5 is revisable or not had come up for the consideration of this court in international a.t. association v. hansa travels (p) ltd. 1997 (2) klt 52 (c. no. 54). in the said case, sankarasubban, j. has held as follows:an order of attachment before judgment is one which involves serious adverse civil consequences. such consequences will justify a conclusion that the order is a case decided within the meaning of section 115 of the code of civil procedure. the consequential conclusion is that the order is revisable under section 115 of the code of civil procedure.however, after the civil procedure (amendment) act, 1999 the scope and ambit of the revisional jurisdiction of this court under section 115 has undergone a change. after the amendment, arevision is maintainable only in respect of orders that would have finally disposed of the suit or other proceeding had the same been in favour of the party applying for revision. the above position of law has also been authoritatively laid down by the hon'ble supreme court in shiv shakti co-operative housing society v. swaraj developers 2003 (2) klt 503 (sc). however, even in cases where the impugned order cannot be said to be strictly revisable, this court has held that the order can be interfered with, since the jurisdiction under article 227 of the constitution of india is also available to this court for correcting wrong orders.14. in nirmala v. nandakumar 2000 (1) klt 843 p.k. balasubramanyan, j. (as he then was) has held at page 845 as follows:but assuming for the present that the decision relied on by learned counsel for the respondent lays down the correct law, i have no doubt that i have jurisdiction under article 227 of the constitution to consider in the interest of justice whether the court below was right in refusing to have the properties properly identified so as to render a decision satisfactory to its conscience. 1 therefore propose to exercise my jurisdiction under article 227 of the constitution of india.i am in respectful agreement with the above dictum. in the present case also, i propose to interfere with the impugned order in exercise of my jurisdiction under article 227 of the constitution.15. the second contention that the impugned order is appealable under order xliii, rule 1(q) is not sustainable for the reason that what is made appealable is an order passed under order xxxviii, rule 6. the order under revision being an order passed under order xxxviii, rule 5 is not appealable under order xliii rule 1(q).16. for the foregoing reasons the c.r.p. is allowed. the order dated 6.11.2004 of the sub court, thiruvalla in i.a. no. 957/2003 in o.s. no. 77/2003 is set aside. however, the first respondent-plaintiff is at liberty to move i.a. no. 957/2003 at the appropriate time, after the character of the payment made by the life insurance corporation changes, as indicated in the decisions referred to above. the learned counsel for the first respondent expressed an apprehension that the second respondent may make payment without notice to the first respondent. the first respondent may request the second respondent to inform them about the payments to be made to the revision petitioner in which event, the second respondent may do the needful in the matter. the court below shall also take all steps to expedite the suit considering the long pendency of the matter. in the circumstances of the case, there will be no order as to costs.

Judgment:
ORDER

K. Surendra Mohan, J.

1. The first respondent, Indian Overseas Bank Ltd. filed a suit O.S.77/2003 for the realisation of amounts due from the revision petitioner who was an employee of the Bank. The allegation is that the revision petitioner had during the course of his employment with the bank, committed misappropriation of funds of the Bank. On the very same allegations the C.B.I. conducted an investigation and launched prosecution proceedings against the revision petitioner, in which it is reported that he has been convicted. The misappropriation is stated to be to the tune of Rs. 75,63,295/-. The Bank initiated disciplinary proceedings against the revision petitioner and has terminated his services. The Bank also filed the suit from which the above revision arises for recovery of the amounts misappropriated by the revision petitioner.

2. The petitioner is a subscriber to life insurance policies. The petitioner had kept these policies in his cabin, while he was working with the first respondent-bank. The policies in original were taken possession of by the bank. In the suit, O.S. No. 77/2003 of the Sub Court, Thiruvalla, the first respondent filed an application as I.A. No. 957/2003 for attachment of the amount scheduled to the petition which represented the surrender value of the LIC policies in the name of the revision petitioner. It was alleged that the petitioner had applied for disbursement of the surrender value of the policies with the object of defeating his creditors. Therefore, the first respondent-bank prayed for the issue of a conditional attachment ordering the revision petitioner to furnish security and in the event of such security being not furnished, to attach the surrender value of his life insurance policies.

3. The revision petitioner filed counter objecting to the attachment. After hearing the contesting parties, as per order dated 6.11.2004 the Sub Court, Thiruvalla passed the order under revision allowing the petition. As per the order, the revision petitioner has been directed to furnish security for an amount of Rs. 25,985/- to the Court on or before 7.1.2004. Meanwhile, conditional attachment of the scheduled amounts also has been ordered. The said order is under challenge in the above Revision Petition.

4. According to the counsel for the revision petitioner, Section 60(1)(kb) of the Civil Procedure Code, amounts covered by Life Insurance Policies are not liable to be attached. Therefore, according to the counsel the Court below exceeded its jurisdiction in ordering attachment of the surrender value of his life insurance policies. He relies on the decision of this Court reported in Sasidharan v. K.C.T.S.S. Sangam 1994 (1) KLT 429 and also on a decision of the Madras High Court in Canara Bank v. Palani dated 2.1.1995 rendered in 1995 (1) KLT 29 (C. No. 40) Mad. : C.R.P. No. 732/1989. As per the above decisions the surrender value of insurance policies are exempt from attachment by Court, it is contended.

5. The submissions of the counsel for the revision petitioner are opposed by the counsel for the first respondent. According to the counsel, the provisions of Section 60(1)(kb) contained an exemption from attachment which was a beneficial provision that should be strictly construed. It was not a provision that should be given an amplitude larger than what is contemplated by the exemption. According to the learned Counsel, the revision petitioner was a person who had committed misappropriation of huge amounts of money, the prospects of recovery of which is very bleak. If the revision petitioner were allowed to receive and appropriate the amounts covered by the insurance policies, the Bank would be left with no means to recover the amounts due to it. Therefore, it is pointed out that the provision should be read down as done by the Court below and an order of attachment should be ordered.

6. I have heard Adv. Mr. Vivek Varghese for the revision petitioner, Adv. Mr. Philip Mathew for the first respondent and Adv. Mr. P.B. Sahasranaman for the second respondent-insurance company. I have anxiously considered the contentions advanced by the counsel.

7. It is reported that the suit O.S. No. 77/2003 is still pending and that the trial is only about to begin. Therefore, the liability of the revision petitioner is yet to be ascertained and quantified by the court after trial. Whether the revision petitioner would ultimately be liable for the amounts claimed by the first respondent-bank would have to be determined in the suit. What arises for consideration here is only whether the revision petitioner should be directed to furnish security for the plaint claim. There is no evidence to show whether the revision petitioner is possessed of immovable properties or other assets. However, in the present petition what is sought to be attached is only the surrender value of the life insurance policies of the revision petitioner. Therefore, the only question that arises for determination is whether the order of the Court directing attachment of the surrender value of the life insurance policies of the revision petitioner is sustainable or not.

8. Section 60(1)(kb) of the Code of Civil Procedure provides that 'all moneys payable under a policy of insurance on life of the judgment debtor' is exempt from attachment The words used in the provision are 'all moneys' which means that all amounts payable under a policy of insurance are specifically exempted from attachment by the above provision. The provision does not exclude the amount which represents the surrender value of life insurance policies, as contended by the counsel for the first respondent. Since the express words of the provision are clear and unambiguous, the full amplitude of the meanings of the words that are actually used, viz., 'all moneys payable under a policy of insurance, have to be given to the provision.' In the absence of any words or expressions in the provision indicating the exclusion of the surrender value of life insurance policies from the ambit of the exemption granted by the provision, there is no justification for restricting the scope of the provision by reading down the words used by the legislature. Therefore, the surrender value of life insurance policies comes within the scope of the exemption contained in Section 60(1)(kb) of the Code of Civil Procedure. Hence, the court below erred in ordering attachment of the said amount which represents payment under life insurance policies.

9. I am supported in this view by the decision of this Court reported in 1994 (1) KLT 429 (supra) where the question was whether the amount in deposit as provident fund was attachable or not. After considering the question this Court has held that once the deduction has gone into the provident fund, the amounts so collected cannot be attached since the same was exempted from attachment. The Court has hastened to add that the amount continues to enjoy the exemption only so long as it retains its character as Provident Fund amount. The moment it is paid to the person to whom it is due, it becomes his property which can be attached in his hands. The very same view has been taken by the Madras High Court in 1995 (1) KLT 29 (C. No. 40) Mad. : C.R.P. No. 732/1989 referred to above. In the said case, where the exempted amount was deposited in bank as a fixed deposit, it was held that the fixed deposit did not enjoy the benefit of exemption.

10. The scope of the exemption under Section 60(1)(kb) has been considered by the Supreme Court in Radhey Shyam Gupta v. Punjab National Bank : 2009 (1) KLT SN 40 (C. No. 44) SC : AIR 2009 SC 930. In the said decision, the question was whether the pensionary benefits and gratuity received and converted into fixed deposit by the judgment debtor was exempt from attachment under Section 60(1) of the Code of Civil Procedure. After considering the aspect in detail, the Honourable Supreme Court has held that since the amount represented pensionary benefits, such amounts retained their character even after they were received by the judgment debtor and after conversion into fixed deposits in his name. In the above view the Supreme Court has held that the exemption contained in Section 60(1) of the CPC extended even to pensionary benefits converted into fixed deposits. However, it is pointed out by the counsel for the first respondent that in another decision in Union of India and Anr. v. Wing Commander, R.R. Hingorani (Retd.) : AIR 1987 SC 808, it has been held that money due on account of pension or commuted pension due to the judgment debtor would change character in his hands and would become liable to attachment after the same is converted into deposit whether fixed or otherwise.

11. It is to be noted that the exemptions contained in Section 60(1) of the Code of Civil Procedure relate to different types of payments made to the judgment debtor as pension or pensionary benefits or under insurance policies. The relevant provision that applies to payments under life insurance policies specifically provide that the said amounts are exempt from attachment. However, once the said amount is received by the policy holder either in person during his life time or by his legal representatives after his death it would cease to retain its character. When the amount is received by the policy holder during his lifetime it becomes his personal property and when the same is received by his legal representatives after his death, it would become part of his estate. Either way, the money so received by him would be liable for attachment in his hands. But so long as the money retains its character as amounts payable under Life Insurance Policy, it would continue to enjoy the benefit of exemption contained in Section 60(1)(kb) of the Code. The above being the legal position, it is clear that, the Court below was wrong in attaching the surrender value of the insurance policies of the revision petitioner. The order under revision is without jurisdiction and is liable to be set aside.

12. The counsel for the first respondent contended that the revision itself was not maintainable on two grounds - firstly in view of the express bar contained in the proviso to Section 115 and secondly in view of the specific remedy of appeal available under Order XLIII Rule 1(q) of the Code of Civil Procedure.

13. The question as to whether an order passed under Order XXXVIII, Rule 5 is revisable or not had come up for the consideration of this Court in International A.T. Association v. Hansa Travels (P) Ltd. 1997 (2) KLT 52 (C. No. 54). In the said case, Sankarasubban, J. has held as follows:

An order of attachment before judgment is one which involves serious adverse civil consequences. Such consequences will justify a conclusion that the order is a case decided within the meaning of Section 115 of the Code of Civil Procedure. The consequential conclusion is that the order is revisable under Section 115 of the Code of Civil Procedure.

However, after the Civil Procedure (Amendment) Act, 1999 the scope and ambit of the revisional jurisdiction of this Court under Section 115 has undergone a change. After the amendment, arevision is maintainable only in respect of orders that would have finally disposed of the suit or other proceeding had the same been in favour of the party applying for revision. The above position of law has also been authoritatively laid down by the Hon'ble Supreme Court in Shiv Shakti Co-operative Housing Society v. Swaraj Developers 2003 (2) KLT 503 (SC). However, even in cases where the impugned order cannot be said to be strictly revisable, this Court has held that the order can be interfered with, since the jurisdiction under Article 227 of the Constitution of India is also available to this Court for correcting wrong orders.

14. In Nirmala v. Nandakumar 2000 (1) KLT 843 P.K. Balasubramanyan, J. (as he then was) has held at page 845 as follows:

But assuming for the present that the decision relied on by learned Counsel for the respondent lays down the correct law, I have no doubt that I have jurisdiction under Article 227 of the Constitution to consider in the interest of justice whether the Court below was right in refusing to have the properties properly identified so as to render a decision satisfactory to its conscience. 1 therefore propose to exercise my jurisdiction under Article 227 of the Constitution of India.

I am in respectful agreement with the above dictum. In the present case also, I propose to interfere with the impugned order in exercise of my jurisdiction under Article 227 of the Constitution.

15. The second contention that the impugned order is appealable under Order XLIII, Rule 1(q) is not sustainable for the reason that what is made appealable is an order passed under Order XXXVIII, Rule 6. The order under revision being an order passed under Order XXXVIII, Rule 5 is not appealable under Order XLIII Rule 1(q).

16. For the foregoing reasons the C.R.P. is allowed. The order dated 6.11.2004 of the Sub Court, Thiruvalla in I.A. No. 957/2003 in O.S. No. 77/2003 is set aside. However, the first respondent-plaintiff is at liberty to move I.A. No. 957/2003 at the appropriate time, after the character of the payment made by the Life Insurance Corporation changes, as indicated in the decisions referred to above. The learned Counsel for the first respondent expressed an apprehension that the second respondent may make payment without notice to the first respondent. The first respondent may request the second respondent to inform them about the payments to be made to the revision petitioner in which event, the second respondent may do the needful in the matter. The Court below shall also take all steps to expedite the suit considering the long pendency of the matter. In the circumstances of the case, there will be no order as to costs.