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2011 DIGILAW 422 (GAU)

Hindustan Paper Corporation Ltd. & Ors. v. Nongstoin Hardware Manufacturing Industry & Ors.

2011-05-13

AMITAVA ROY

body2011
Amitava Roy, J. - The order dated 9.2.2011 passed by the learned Civil Judge, Karimganj in Money Execution Case No. 4/2006 sustaining the computation made by the Execution Assistant-cum-Sheristadar of his establishment quantifying an amount of Rs.6,50,187.06 as the decretal amount payable in terms of the judgment and decree dated 20.9.2005 passed in Money Suit No. 24/88 is under assailment in the present proceeding. Inter­ference therewith is sought for hi the exercise of this Court's power under Article 227 of the Constitution of India. 2. I have heard Mr. J. Roy, learned coun­sel for the petitioners and Mr. I.A Talukdar, learned counsel for the opposite party. 3. The run up offacts to the initiation of the instant proceeding needs to be sketched in brief. The aforementioned suit was insti­tuted in the Court of the Assistant District Judge, Karimganj by the opposite party Nos. 1, 1(a), 1(b) and 1(c) for recovery of an amount of Rs.3,54,876.70 together with in­terest against the petitioners. The suit was decreed ex-parte on 20.2.91 whereby an amount of Rs.3,54,876.70 with costs of Rs.7,128.73 together with interest at the rate of 12.5% till realization of the amount was decreed. Being aggrieved, the petitioners pre­ferred an appeal before this Court being First Appeal No. 36/91 which was allowed on 6.11.95 by setting aside the judgment and decree dated 20.2.91 and remanding the suit for expeditious disposal by the learned Trial Court in accordance with law after affording reasonable opportunities to the parties. Dur­ing the pendency of the aforementioned ap­peal the petitioners had deposited an amount of Rs.6,70,085.40 with the learned Trial Court on 22.8.95 as the mandatory security deposit. Thereafter, the said amount was with­drawn by the opposite party Nos. 1,1(a), 1(b) and 1(c). As this fact was brought to the notice of this Court, it in its order dated 6.11.95 referred to hereinabove directed the opposite party Nos. 1,1 (a), 1 (b) and 1 (c) to redeposit the amount received by them be­fore the learned Trial Court or to furnish a bank guarantee to that effect within two months from the date of the order i.e. 6.11.95. 4. After remand the suit was decreed again by the judgment and decree dated 20.9.2005 for an amount of Rs. 1,72,284.28 with inter­est at the rate of 12% per annum as men­tioned therein. According to the petitioners, though meanwhile the opposite party Nos. 4. After remand the suit was decreed again by the judgment and decree dated 20.9.2005 for an amount of Rs. 1,72,284.28 with inter­est at the rate of 12% per annum as men­tioned therein. According to the petitioners, though meanwhile the opposite party Nos. 1, 1 (a), 1 (b) and 1 (c) had withdrawn the amount of Rs.6,70,085.40, they launched the afore­said execution proceeding against them for recovery of the decreetal amount of Rs. 1,72,284.28 together with interest. Vide order dated 25.1.2008 passed in the Money Execution case the learned Executing Court called for a report from the Execution Assis-tant-cum-Sheristadar disclosing the amount payable by the petitioners/judgment-debtors in terms of the judgment and decree dated 20.9.2005. Calculations were done and in terms of the report dated 28.7.2008 an amount of Rs.3,53,116.00 was shown to be payable under the decree. In the said report it was inter alia mentioned that as meanwhile the petitioners/judgment-debtors had depos­ited Rs.6,70,085.40 in Court on 22.8.95, in­terest on the bill amount at the rate of 12% per annum as decreed was realizable upto the date of such deposit i.e. 22.8.95 which was worked out to be Rs. 1,53,844.19. Interest on the security deposit as decreed was also calculated upto 22.8.95 to be Rs.13,012.78. As the matter stood at that, the Execution Assistant-cum-Sheristadar submitted a sec­ond report on 15.6.2010, this time indicating that an amount of Rs.6,50,187.06 was due from the petitioners under the decree. In ar­riving at this figure, the Execution Assistant included an amount of Rs.4,23,431.70 by way of interest on the total amount upto 31.5.2010. Interest on the security deposit was calculated to be Rs.40,496.33 as on 31.5.2010. Visibly in making these calcula­tions the Execution Assistant-cum-Sheristadar left out of consideration the deposit of the amount of Rs.6,70,085.40. Being aggrieved by this arithmetic, the petitioners filed a writ­ten objection before the Executing Court on 8.7.2010 praying for cancellation of the sec­ond report/calculation and for acceptance of the figure noted in the first report dated 28.7.2008. As the Executing Court by the im­pugned order dated 9.2.2011 accepted the second report, being dissatisfied therewith the petitioners seek redress. 5. The opposite party in their joint affidavit-in-opposition while generally admitting the factual narration of the petitioners asserted that the amount of Rs.6,70,085.40 received by one of them was re-deposited with the learned Trial Court on 21.6.2003. As the Executing Court by the im­pugned order dated 9.2.2011 accepted the second report, being dissatisfied therewith the petitioners seek redress. 5. The opposite party in their joint affidavit-in-opposition while generally admitting the factual narration of the petitioners asserted that the amount of Rs.6,70,085.40 received by one of them was re-deposited with the learned Trial Court on 21.6.2003. They, how­ever, in unison endorsed the calculations made by the Execution Assistant-cum-Sheristadar in his report dated 15.6.2010 and, conse­quently, the order impugned. 6. Mr. Roy has emphatically argued that the calculations made on 15.6.2010 besides being uncalled for in the face of erroneous computation made on 28.7.2008 is evidently wrong and that, therefore, the impugned or­der is liable to be interefered with. According to Mr. Roy, the petitioners having admittedly deposited an amount of Rs.6,70,085.40 be­fore the Trial Court on 22.8.95, they by no means could be saddled with the interest on the bill amount for the period thereafter and that, therefore, the computation made on 15.6.2010 being erroneous on the face of the records, the impugned order is unsustainable in law and on facts and ought to be set aside in the interest of justice. 7. Mr. Talukdar, in reply, has insisted that as the impugned order does not suffer from any infirmity in law, no interference therewith in the exercise of this Court's extra ordinary jurisdiction is called for. When queried by this Court, Mr. Talukdar, however, has admitted the deposit of the amount of Rs.6,70,085.40 by the petitioners before the Trial Court on 22.8.95 and the withdrawal thereof by the opposite party Nos. 1,1 (a), 1 (b) and 1 (c) on 6.11.95. He did not deny as well that this amount since 22.8.95 had not been taken back by the petitioners. 8. A plain reading of the report dated 28.7.2008 inter alia reveals that the interest on the bill amount had been calculated from the dates of the concerned bills upto 22.8.95. The statement accompanying the said calcu­lation clearly reveals that the petitioners had deposited Rs.6.70,085.40 against which the decreetal amount of Rs.3,53,116.00 was adjustable. This report discloses as well that the aforementioned amount of Rs.6,70,085.40 was deposited by the petitioners on 22.8.95 and, thus, interest on the bill amount at the rate of 12% per annum had been calculated from the date of each bill upto the date of depsoit thereof i.e. 22.8.95. 9. This report discloses as well that the aforementioned amount of Rs.6,70,085.40 was deposited by the petitioners on 22.8.95 and, thus, interest on the bill amount at the rate of 12% per annum had been calculated from the date of each bill upto the date of depsoit thereof i.e. 22.8.95. 9. In sharp contrast to the above, the in­terest on the bill amount, as the report dated 15.6.2010 would reveal, was calculated at the rate of 12% per annum from the date of each bill till 31.5.2010 without, however, giv­ing the benefit to the deposit of Rs. 6,70,085.40 that had been deposited by the petitioners admittedly on 22.8.95. No rea­son is cited in the report for this apparent departure from the earlier mode of computa­tion of the decretal amount. The learned Executing Court as well has not dwelt upon this aspect of the matter in upholding the calcula­tions made as per the report dated 15.6.2010. As the amount of Rs.6,70,085.40 had ad­mittedly been deposited by the petitioners with the Trial Court following the ex-parte decree dated 6.11.95, may be as a deposit to prefer an appeal before this Court, and as the said amount had been withdrawn by the opposite party Nos. 1, 1(a), 1(b) and 1(c) to be re-deposited on 21.6.2003 as averred by them in their affidavit, it passes one's comprehen­sion as to how the petitioners could still be burdened with the interest on the bill amount from the respective dates of the bills till 31.5.2010 in continuum. The calculation of the decretal amount at least to this extent, in the opinion of this Court, would result in un­due enrichment of the opposite party Nos. 1, 1(a), 1(b) and 1(c) as the amount of Rs.6,70,085.40 had been at their disposal from 6.11.95 to 21.6.2003 as admitted by them. The learned Executing Court seems to have totally overlooked this aspect of the matter while accepting the second report dated 15.6.2010. The petitioners having made the deposit of Rs.6,70,085.40, in the considered opinion of this Court, they ought not to be held liable for the interest for the period on and from the date of deposit. In this view of the matter, the calculation made in the report dated 15.6.2010 as well as the order dated 9.2.2011 impugned herein can­not be sustained and are, thus, interfered with. 10. The petition is allowed. 11. In this view of the matter, the calculation made in the report dated 15.6.2010 as well as the order dated 9.2.2011 impugned herein can­not be sustained and are, thus, interfered with. 10. The petition is allowed. 11. The learned Executing Court would cause a fresh computation to be made of the decretal amount realizable from the petition­ers in accordance with law. No costs.