High Court of Madras

25.01.1995

Mr. Tharmapitchai and Anr.v. A.C.A. Funds

MANU/TN/0595/1995

Not requiring wilful defaulters to snitch on themselves

Wilful default - alleging the debtor to have failed paying his or her debts despite the presence of funds - a last resort it may be for the lender, requires proving adequate means of payment of the debtor to the court. Madras High Court, hearing the same, opined ‘onus is undoubtedly upon the decree-holder [lender] to prove that the judgment-debtor had enough means’, failure to prove which would mean arrest of the debtor could not be ordered by the court. Moreover, burden of proof for proving adequacy of the means of the debtor to pay the debt would rest with the lender, not with the debtor. As such, the court held unsustainable a previous decision in the matter in which the debtors had been ordered to prove their means position.

Tags : Willful default burden of proof means

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