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2011 DIGILAW 1394 (PNJ)

State Bank of India v. Vipan Plastics Industries

2011-07-11

RAM CHAND GUPTA

body2011
JUDGMENT RAM CHAND GUPTA, J. - The present revision petition has been filed under Article 227 of the Constitution of India read with Sections 115 and 151 of the Code of Civil Procedure for setting aside order dated 24.12.2007, Annexure P4 and subsequent order dated 8.6.2009, Annexure P7, passed by learned trial Court in execution proceedings. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned trial Court. 3. Facts relevant for the decision of present revision petition are that a suit for recovery was filed by present petitioner-plaintiff-bank against respondents, which was decreed with costs for Rs. 3,96,330/-alongwith interest @ 15.5% with quarterly rests from the date of filing of the suit till realization of the amount vide judgment and decree dated 25.4.1997, passed by learned trial Court, Annexure P1. Since defendants failed to pay decreetal amount, execution petition was filed by petitioner-bank. On the application of petitioner-decree-holder, property belonging to the judgment debtor was attached and auctioned. Smt. Madhu Khemka and Smt. Manisha Khemka were the highest bidders of the said property and hence they purchased the same in the auction. They also deposited Rs. 3,90,500/-as per order of the Court. Auction was confirmed by the Court on 22.11.2002 in favour of the highest bidders. Pursuant to the said sale confirmation, sale certificate dated 5.12.2002 was also issued in favour of the highest bidders declaring them owners of the suit property. An application was moved by them for taking possession of the property, which was purchased by them in Court auction. Objections were filed by Madan Lal Sharma, husband of respondent no.2-judgment debtor. He took the plea that he is owner in possession of the ½ share of the property which was auctioned, i.e., House No.1302/II-30, which was purchased by him, vide registered sale deed dated 21.2.1975 in the year 1975 and since then he is in possession to the extent of his share in the property. His objection was accepted by learned Executing Court vide impugned order dated 24.12.2007, Annexure P4, and it was ordered that auction purchasers are legally entitled to get possession of the half share of the property, which was auctioned and that half of the property shall remain in custody of Madan Lal Sharma-objector. His objection was accepted by learned Executing Court vide impugned order dated 24.12.2007, Annexure P4, and it was ordered that auction purchasers are legally entitled to get possession of the half share of the property, which was auctioned and that half of the property shall remain in custody of Madan Lal Sharma-objector. It was also ordered that regarding excess amount paid by auction purchasers, the said amount to the extent of Rs.1,80,250/-shall be refunded by the decree-holder-bank alongwith interest @ 12% to the auction purchasers from the date of deposit of such excess amount till making the payment to the auction purchasers. Lateron an application was filed by auction-purchasers for possession of half portion of the property purchased by them with a direction to present petitioner-bank to deposit the excess amount deposited by them, as per earlier order dated 24.12.2007, which was also accepted and petitioner-bank was directed to refund a sum of Rs.1,80,250/-with interest @ 12% per annum to auction purchasers. 5. It has been contended by learned counsel for the petitioner-decree-holder that no amount has been received so far by petitioner-decree-holder and that the amount is lying deposited with the Court. It is further contended that insofar as the impugned orders directing the petitioner-decree-holder to pay interest on the amount of Rs.1,80,250/-@ 12% per annum to the auction purchasers, the same cannot be sustained in the eyes of law, as petitioner-decree-holder has been penalised for no fault. It is further contended that recovery of interest, if any, is to be effected from judgment-debtor by the auction purchasers. He has also placed reliance upon Central Bank of India v. Raghbir Singh and others, 1990(2) RLR 207. 6. On the other hand it has been contended by learned counsel for the respondents-auction purchasers that they had deposited the entire sale consideration, as per order of the Court and if the amount was not withdrawn by petitioner-bank, auction purchasers cannot be penalised and hence, learned Executing Court has rightly ordered for refunding half of the amount alongwith interest @ 12% per annum. He has also placed reliance upon Hindi Pracharak Prakashan and another v. M/s. G.K. Brothers and others, AIR 1990 Supreme Court 2221. 7. It may be mentioned here that judgment debtor and objector are husband and wife. However, judgment debtor was owner of only half share of the property which was put to auction for realising the decreetal amount. He has also placed reliance upon Hindi Pracharak Prakashan and another v. M/s. G.K. Brothers and others, AIR 1990 Supreme Court 2221. 7. It may be mentioned here that judgment debtor and objector are husband and wife. However, judgment debtor was owner of only half share of the property which was put to auction for realising the decreetal amount. Sale of the property to the extent of half share belonging to the objector was rightly set aside by learned Executing Court. As auction purchasers deposited consideration for the entire property, it was also rightly directed to refund half of the sale price to the auction purchasers, which was rightly withdrawn by them. However, auction purchasers are claiming interest on the said amount from the date the same was deposited till the same was refunded to them. The amount remained deposited in the Court without any return. It has been held by this Court in Raghbir Singh and others' case (supra) that if the amount remained deposited in the Court and if the auctioned money was never paid to decree-holder, decree-holder is not liable to pay any interest to auction purchaser. 8. In Hindi Pracharak Prakashan and another's case (supra) on which reliance has been placed by learned counsel for the respondents-auction purchasers as well, it is held that auction purchaser is entitled to reasonable compensation from the judgment debtor. 9. In the present case as well, petitioner-bank after obtaining decree got property belonging to judgment-debtor auctioned and, however, the auctioned money remained deposited with the Court and not paid to petitioner-bank. Later on auction of the half of the property was set aside on the plea that objector is none else than husband of judgment debtor, who is owner of the half of the portion of the said property. Hence, half of the sale consideration was ordered to be refunded to auction purchasers, which has been withdrawn by them. 10. However, no amount was withdrawn by petitioner-bank and the amount remained deposited with the Court. Only half of sale consideration, i.e., Rs.1,80,250/-is now to be withdrawn by petitioner-bank. Hence, in view of these facts, petitioner-bank cannot be directed to pay interest on the amount which remained lying deposited in the Court to the auction purchasers. Learned trial Court has committed illegality in ordering petitioner-bank to make payment of interest @ 12% per annum to the auction purchasers. 11. Hence, in view of these facts, petitioner-bank cannot be directed to pay interest on the amount which remained lying deposited in the Court to the auction purchasers. Learned trial Court has committed illegality in ordering petitioner-bank to make payment of interest @ 12% per annum to the auction purchasers. 11. Hence, impugned order passed by learned Executing Court is modified to the extent that petitioner-bank is not liable to make payment of interest on the amount of `1,80,250/-to respondents-auction purchasers. Auction-purchasers may, if so advised, approach learned Executing Court for recovery of interest on the excess amount from judgment debtor. 12. Hence the present revision petition is disposed of accordingly. Petition Disposed of.