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2008 DIGILAW 1091 (PNJ)

Ram Lal v. Central Bank of India

2008-05-23

M.M.KUMAR

body2008
JUDGMENT M.M. Kumar, J.:-This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’) is directed against order dated 15.3.2004 passed by the Executing Court dismissing the application filed by the judgement debtor- petitioner ( for brevity ‘the JD- petitioner’) under Order 21 Rules 1 and 2 read with Section 151 of the Code. The Executing Court has recorded the finding that the objection filed by the JD- petitioner lacks substance and has dismissed the same. 2. Brief facts of the case which are necessary for the disposal of the controversy raised are that the decree holder- respondent, Central Bank of India (for brevity ‘the DH- Bank’) filed a civil suit bearing No.470 on 22.8.1989 against the JD petitioner. The suit was decreed on 21.2.1997 against the JD- petitioner with costs. A decree for a sum of Rs.301894.01 was passed by the Civil Judge (Sr. Division), Amloh alongwith interest @ 15 percent p.a. with quarterly rest from the date of filing the suit till its realisation. On appeal filed by the JD petitioner the ld. Additional District Judge upheld the decree by affirming the findings recorded by the trial Court. However, in the concluding paras the ld. Addl. District Judge took judicial note of the One Time Settlement Scheme (OTS) floated by the Reserve Bank of India and went on to observe as under: “ 13. Before parting with the judgement this Court take judicial note of the fact that Reserve Bank of India has granted some concessions to the defaulting loanees provided they come to settle for the amount upto 31.3.2001. In view of the matter it is ordered that if the defendants approached the plaintiff bank for the settlement of their accounts before the date notified by Reserve Bank of India and settle their accounts with the bank then the plaintiff bank will grant all benefits and concessions as given by the Reserve Bank of India, instructions in this regard. 14. In the wake of the above discussion, I do not find any merit in the appeal and the same is hereby dismissed with costs. Decree sheet be prepared accordingly. Trial Court record be sent back well within time. Appeal file be consigned to the record.” 3. 14. In the wake of the above discussion, I do not find any merit in the appeal and the same is hereby dismissed with costs. Decree sheet be prepared accordingly. Trial Court record be sent back well within time. Appeal file be consigned to the record.” 3. The decree holder- bank filed an application under Order 12 Rules 1 and 2 read with Section 151 of the Code with a prayer to the executing Court to pass a final decree. The JD- petitioner opposed the application by filing objections under Order 21 Rules 1 and 2 read with Section 151 of the Code asserting that the decree stood fully satisfied and adjusted. A reference was made to the OTS scheme floated by the Reserve Bank of India whereby the borrowers like the JD petitioner were called upon to make payment of the amount due to the bank in accordance with the provisions of the Scheme. In pursuance thereof, the JD petitioner had deposited Rs. 80,000/- with the DH Bank and the same was accepted by the DH bank. The JD petitioner has claimed that another revised scheme was issued by the Reserve Bank of India calling upon the JD petitioner to apply for the settlement and adjustment of the account on or before 30.4.2003 and the JD petitioner on demand by the DH Bank paid Rs.2,40,100.00 (Rs. 24,000/- on 15.4.2003 and Rs. 2,15,100/- on 30.4.2003). It is claimed that infact approximately an amount of Rs.20,000/- was paid in excess. The process of compromise under the revised guide-lines was required to be completed on or before 31.10.2003. It was accordingly claimed that the decree of the DH Bank stood fully satisfied as per the scheme of the Reserve Bank of India. 4. The claim made by the JD petitioner was contested. The decree holder- bank pointed out before the executing Court that an objection petition was earlier filed and the same was rejected by the executing Court and that the JD petitioner was not entitled to any concession as asserted because the concession was available only to those who approached the authorities for settlement purposes. The JD petitioner had approached the authorities DH Bank for compromise and their request was declined by the DH Bank. The JD petitioner had approached the authorities DH Bank for compromise and their request was declined by the DH Bank. It is claimed that the JD petitioner is liable to pay the entire decretal amount alongwith interest and costs awarded by the Court and that the appeal filed by the JD petitioner was dismissed by the Addl. District Judge vide his detailed order on 16.3.2001. The stand of the DH Bank is that the JD petitioner has failed to comply with the directions given by the ld. Addl. District Judge because he failed to deposit the decretal amount within the stipulated period. The full amount was required to be deposited within stipulated period disclosing the judgement and decree which has not been done. The executing Court after hearing arguments of both sides dismissed the application of JD petitioner by observing as under: “ But, however, from the perusal of revised guidelines for compromise settlement of chronic non performing Assets (NPAS) of public sector Banks dated 29th January, 2003 it becomes amply clear that those guidelines are applicable to chronic non performing Assets (NPA’S). In the instant case decree for recovery has already been passed against the JDs and it cannot be said by any stretch of imagination that decretal amount in the case in hand is a non performing assets. It was incumbent upon the JD to satisfy the court that his case fell within the ambit of NPA’S and without doing so, it cannot be said that the J.Ds are entitled to get benefit under the revised guidelines dated January 29, 2003. Moreover, the directions given by the appellate Court are also very clear on the point that if the JD came to settle for the amount upto 31.3.2001, he will be entitled to get all the benefits and concessions under the Reserve Bank of India Scheme. There is nothing on record to reach the conclusion that the JD approached the DH Bank for settlement before 31.3.2001. The only fact that the JD deposited Rs. 80,000/- on 22.2.2001, cannot be interpreted in the manner that he approached the decree holder Bank for settlement of the account. There is nothing on record to reach the conclusion that the JD approached the DH Bank for settlement before 31.3.2001. The only fact that the JD deposited Rs. 80,000/- on 22.2.2001, cannot be interpreted in the manner that he approached the decree holder Bank for settlement of the account. Rather it is the case of the JD that he issued letter to the Manager and Regional Manager only on 29.3.2002, which means and imply that the JD failed to comply with the directions of the appellate Court for approaching the decree holder upto 31.3.2001 for settlement. Now when the decree has attained finality and the assets were not NPAs, the JD cannot force the decree holder to settle the amount. As such I am constrained to hold that the objection/ petition fails and is ordered to be dismissed without prejudice my decision on merits of the case.” 5. Mr. R.K.Battas, learned counsel for the petitioner has submitted that the executing Court has committed grave error in law by dismissing the objection filed by the JD petitioner. According to the learned counsel the rejection of earlier objection by the executing Court would not stand in the way of the JD petitioner because the new scheme floated by the Reserve Bank of India in the year 2003 is in continuation of the earlier scheme and new cause of action had arisen. Learned counsel has maintained that the account of the JD petitioner was declared non performing asset on 27.10.2000 when the factory had been closed and the lessor of the JD petitioner had taken back the charge of the factory. He has pointed out that the ld. Addl. District Judge vide judgement and decree dated 16.3.2001 has extended all benefits of the OTS if the JD petitioner had paid the amount within the four corners of that scheme and therefore it could not be construed to mean that the JD petitioner was required to make the payment upto certain date or that they could take advantage of the scheme as and when revised. He has also submitted that it was necessary to frame issues and decide the same by permitting adducing of evidence. He has emphasised that the objections could not have been rejected summarily. 6. Mr. I.P.Singh, learned counsel for the DH Bank has argued that in accordance with the decree drawn by the ld. Addl. He has also submitted that it was necessary to frame issues and decide the same by permitting adducing of evidence. He has emphasised that the objections could not have been rejected summarily. 6. Mr. I.P.Singh, learned counsel for the DH Bank has argued that in accordance with the decree drawn by the ld. Addl. District Judge once the JD petitioner has failed to deposit the amount within the stipulated period of the scheme then the benefit granted by the decree to them could not be availed merely because a new OTS was floated by the Reserve Bank of India. He has maintained that no Court can go behind the decree and could grant benefit to the JD petitioner. Therefore, it is submitted that the benefit of the new scheme cannot be claimed by the JD petitioner. Therefore, he has submitted that the revision petition is liable to be dismissed and the order passed by the executing Court deserves to be upheld. 7. I have thoughtfully considered the submissions made by the learned counsel for the parties and have also gone through the paper book minutely with their assistance. 8. Having bestowed my thoughtful consideration I have reached the conclusion that this petition lacks merit and is thus liable to be dismissed. One basic principle of law in execution matters which is deep rooted in our jurisprudence is that no Court can go behind the decree and it has to be executed as it is. In other words the observations made by the ld. Addl. District Judge in last two paras of his judgement and decree were required to be complied with by the JD petitioner. It could not be successfully argued before me that the JD petitioner did not deposit the amount in accordance with the OTS scheme floated by the Reserve Bank of India upto 31.3.2001. In this context it is worthwhile to notice that the objections filed by the JD petitioner earlier were dismissed on account of non payment by the stipulated date. A new objection emanate from the new OTS scheme floated by the Reserve Bank of India in the year 2003. The decree passed by the ld. Addl. District Judge did not extend to grant of benefit of the OTS scheme which has come subsequently. A new objection emanate from the new OTS scheme floated by the Reserve Bank of India in the year 2003. The decree passed by the ld. Addl. District Judge did not extend to grant of benefit of the OTS scheme which has come subsequently. The acceptance of any amount by the DH Bank in the year 2003 is based on mutual understanding of the parties which is outside the purview of the judgement and decree passed by the ld. Addl. District Judge. Therefore no interference of this Court is called for because the objections filed by the JD petitioner are based on new OTS Scheme dated 29.1.2003. It is further appropriate to mention that the question as to whether the OTS scheme issued on 29.1.2003 confers any right on a borrower has been considered by a Division Bench of this Court of which one of us ( M.M.Kumar, J.) is a member, in the case of ‘Knittex Overseas Pvt. Ltd v. State Bank of Patiala and others, [2008(2) LAW HERALD (P&H) (DB) 996] : AIR 2008 P&H 59 wherein it has been held that OTS scheme by the Reserve Bank of India do not have any statutory force and no right flows from such a scheme. Even Hon’ble the Supreme Court in the case of Oriental Bank of Commerce v. Sunder Lal Jain, [2008(1) LAW HERALD (SC) 373] : (2008) 2 SCC 280 while considering the OTS scheme dated 29.1.2003 has held that these guide-lines are only in the nature of internal guidelines for the banks and financial institutions and do not have any statutory force. It has further been held in para 10 that these guidelines neither create any legal right nor corresponding legal duty in favour of the borrowers and the lending institutions respectively. Once there is no legal right with regard to OTS scheme, which is not part of the decree, then no reliance on such a scheme could be placed by the JD petitioner especially when it is beyond the scope of the decree. The revision petition is without any merit and is thus liable to be dismissed. 9. For the reasons afore-mentioned this petition fails and the same is dismissed. The impugned order dated 15.3.2004 passed by the executing Court is upheld. ------------------