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2015 DIGILAW 23 (JK)

State Bank of India v. Mohd. Din Sheikh

2015-02-09

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. This revision is directed against the order dated 12th September, 2012 passed by learned Principal District Judge, Ramban in execution petition titled Mohi-ud-Din Sheikh vs State Bank of India, by virtue whereof the Executing Court held the revision petitioner liable to pay an amount of Rs. 15,30,617/- to the respondent. The impugned order is assailed as having been passed without jurisdiction and the Executing Court is alleged to have travelled beyond the scope of decree passed by the Trial Court. The impugned order is also assailed on the ground that the decree passed by the trial Court was not executable at the instance of respondent herein. A glance at the factual matrix of the case would reveal that the revision petitioner (hereinafter referred to as 'Bank') instituted a suit for recovery of Rs. 1,64,660.20 paisa with interest from 01.12.1994 and interest pendente lite and future interest against the present respondent-Mohammad-din-Sheikh and one Mohd. Umar Nizami on the ground that the present respondent had availed Cash Credit Term Loan for purchase of Vehicle and the bank sanctioned and advanced a sum of Rs. 2,00,000/- in favour of the respondent-Mohd. Din Sheikh for purchase of Tipper. The loan is stated to have been advanced on 30.12.1982. It was alleged in the plaint that the borrower had committed default and failed to comply with the terms and conditions of the loan agreement and an amount of Rs. 1,64,660. 20 paisa was lying outstanding against respondent-borrower as on 30.12.1994. Respondent-borrower and his guarantor admitted the factum of loan being advanced to the respondent-borrower but pleaded that on account of transfer of National Highway to Beacon the respondent-borrower had suffered losses as the Tipper had met with an accident in respect whereof the Bank did not take appropriate steps for settlement with the Insurance Company. Respondent-borrower further pleaded that FDR of Rs. 50,000/- dated 02.08.1980 deposited with the Bank be adjusted against the loan amount. 2. Parties joined issues and on consideration of evidence brought on record during the trial, the learned trial Court of Additional District Judge, Ramban decreed the suit for Rs. 1,64,660.20 paisa alongwith interest at the rate of 16% p.a from the date of institution of suit till realization of the amount. The amount of Rs. 2. Parties joined issues and on consideration of evidence brought on record during the trial, the learned trial Court of Additional District Judge, Ramban decreed the suit for Rs. 1,64,660.20 paisa alongwith interest at the rate of 16% p.a from the date of institution of suit till realization of the amount. The amount of Rs. 50,000/- deposited by the respondent-borrower in the form of FDR was directed to be adjusted with interest admissible on the said FDR at the rate of 4% for the period of 91 days w.e.f. 02.08.1980 and thereafter at the rate of interest at which nationalized banks advanced money in relation to commercial transactions. Trial Court further directed that in case outstanding decretal amount along with interest and costs is not satisfied by the amount due under the FDR, the balance amount shall be recoverable by sale of the hypothecated vehicle in the first instance failing which it shall be recovered from the persons and properties of the respondent-borrower and the guarantor. The trial Court further directed that in case the amount due under FDR, after satisfying the claim of Bank, exceeded the claim of Bank, the outstanding amount due to respondent-borrower shall be paid to him or adjusted or applied the way respondent-borrower chooses. The judgment and decree of trial Court came to be upheld by this Court in terms of order dated 14.12.2000. 3. Respondent-borrower filed execution petition claiming an amount of Rs. 14,19,196/- with interest at the rate of 16% w.e.f. 01.07.2003 onwards from the Bank on the ground that after deducting an amount of 3,70,000/- payable to the Bank under the decree, he was entitled to Rs. 14,19,196/- from the Bank which has been worked out up to 30.06.2003. The Bank disputed the calculation made by the respondent-borrower and pleaded that after adjusting the amount due under the FDR, the Bank was entitled to recover Rs. 41,117/- from the respondent-borrower. The executing Court, while dealing with the execution petition directed two Branch managers of Punjab and Sind Bank Ramban and J&K Bank, Ramban to calculate the rate of interest admissible on FDR of an amount of Rs. 50,000/- from 03.11.1980 at which the Bank advanced or lent money in relation to commercial transactions. Bank preferred a revision against the order dated 28.12.2004 passed by the Executing Court. 50,000/- from 03.11.1980 at which the Bank advanced or lent money in relation to commercial transactions. Bank preferred a revision against the order dated 28.12.2004 passed by the Executing Court. C.R No. 44/2005 came to be disposed of by this Court vide order dated 14.03.2005 by holding that the question of recovery/adjustment of the money due under the FDR being conditional upon respondent-borrower getting released from the pledge i.e. Executive Engineer, National Highway 1-B, Batote-Kishtwar Division was to be considered subsequently and in the first instance the amount of interest admissible under the decree had to be calculated. Thereafter the Executing Court appears to have passed order dated 12.09.2007 in terms whereof a commission comprising of Branch Managers of J&K Bank Ltd. Branch Ramban and Punjab and Sind Bank, Branch Ramban was constituted for calculating the amount payable to and by the decree holder. 4. The Commission submitted its report, relevant portion whereof reads as under:- Amount payable by SBI Ramban to Sh. Mohd Din Rs. 19,95,056/- Amount Payable by Sh. Mohd. Din to SBI, Ramban Rs. 12,60,314/- Difference of amount Payable by SBI, Ramban To Sh. Mohd. Din Rs. 7,34,742/- 5. On consideration of the report submitted by the Commission, learned Executing Court passed order dated 31.01.2008 disposing of the execution petition as having been satisfied after the Bank delivered a cheque for an amount of Rs. 7,28,675/- towards satisfaction of the claim of respondent-borrower after deducting costs of the suit. This order came to be assailed before this Court in C. Rev. No. 51/2008 which was decided on 04.11.2011 by setting aside the order of executing Court dated 31.01.2008. This Court observed that the Executing Court has not considered the objections filed by the respondent-borrower to the Commissioner's report that he was entitled to more money than what had been indicated by the Commissioners. The execution petition was accordingly, revived for fresh consideration by the executing Court. The matter was again considered by the executing Court which passed the impugned order assailed in this revision petition. The executing Court found that an amount of Rs. 12,60,314/- was payable by respondent-borrower to the bank as on 25.10.2007, whereas an amount of Rs. 35,19,606/- was payable by the bank to the respondent-borrower. Thus, after adjusting the amount payable by the respondent-borrower, the Bank had to pay an amount of Rs. 22,59,292/- to respondent-borrower out of which an amount of Rs. 12,60,314/- was payable by respondent-borrower to the bank as on 25.10.2007, whereas an amount of Rs. 35,19,606/- was payable by the bank to the respondent-borrower. Thus, after adjusting the amount payable by the respondent-borrower, the Bank had to pay an amount of Rs. 22,59,292/- to respondent-borrower out of which an amount of Rs. 7,28,675/- had been paid in terms of order dated 31.10.2008 thereby leaving balance amount of Rs. 15,39,617/- payable by the Bank to the respondent-borrower. 6. Heard learned counsel for the parties and perused the record. 7. It is well settled that an Executing Court cannot go beyond the decree sought to be executed. However, the Court must find out the true facts of the decree. It falls within the province of the Executing Court to wade through the proceedings culminating in passing of the decree under execution. The circumstances attending upon and the passing of the decree have to be kept in view while interpreting the terms of the decree for the purposes of execution. A bare look at the decree may not suffice to ascertain the true purport of the decree under execution. The executing Court has to look into it whether the liability of a party has been determined and incorporated in the decree before it proceeds to enforce the same. 8. It appears from the record that the decree holder-Bank had filed an appeal against the judgment and decree passed by the Trial Court to the extent of adjustment of Rs. 50,000/- deposited in the shape of FDR with the Bank by the respondent-borrower which was pledged to Executive Engineer National Highway. This Court found that the factum of FDR having been deposited on 2.08.1980 was not denied. It also noticed that the renewal of FDR was not declined. The plea raised in the appeal was that it was a case of set off/counter claim and for adjusting the same a proper suit was to be filed and if that was done then in the same suit the requisite Court fee was required to be paid. This Court, after noticing the case law on the subject, arrived at the conclusion that the adjustment pleaded was neither a claim nor a set off, therefore for such adjustment no Court fee was required to be paid. 9. This Court, after noticing the case law on the subject, arrived at the conclusion that the adjustment pleaded was neither a claim nor a set off, therefore for such adjustment no Court fee was required to be paid. 9. In view of this finding the argument raised on behalf of the Bank that the plea of defence was a set off or a counter claim cannot be countenanced. It further appears from the aforesaid judgment dated 14.12.2000 rendered in appeal that this Court upheld the finding of trial Court in regard to award of interest on the FDR amount at the rate of 4% for 91 days and thereafter commercial rate of interest in vogue at the relevant time. The appeal had been preferred by decree holder-Bank only to the limited extent of adjustment of the FDR amount of Rs. 50,000/- and the rate of interest awarded thereon. The appeal came to be dismissed by upholding the verdict of trial Court leaving no scope for issues relating thereto to be agitated in execution proceedings. The judgment in appeal rendered by this Court has not been assailed by either of the parties and the same has attained finality. Such issues, therefore, cannot be allowed to be raised at this stage. 10. In terms of the impugned order dated 12.09.2012, the executing Court has determined the amount payable by the respondent-borrower to the Bank. It has found that the amount of Rs. 12,60,314/- was payable by the respondent-borrower to the Bank, whereas the Bank had to pay to the respondent-borrower an amount of Rs. 35,19,606/-. This calculation has been made on the basis of amount found payable to the Bank under the decree and the amount of Rs. 50,000/- pledged as FDR by the respondent-borrower together with the component of interest admissible thereon as per the approved rates of the Bank. After adjusting the amount of Rs. 12,60,314/- payable by respondent-borrower to the Bank, the Bank had to adjust liability of Rs. 22,59,292/- towards the respondent-borrower which, after deducting the an amount of Rs. 7,28,675/- paid in terms of order dated 31.01.2008 stood at Rs. 15,30,617/-. The calculation made by the Executing Court in compliance to the order dated 04.11.2011 passed in C. Rev. 51/2008 not having been shown to be erroneous, the impugned order does not suffer from any legal infirmity. 11. 7,28,675/- paid in terms of order dated 31.01.2008 stood at Rs. 15,30,617/-. The calculation made by the Executing Court in compliance to the order dated 04.11.2011 passed in C. Rev. 51/2008 not having been shown to be erroneous, the impugned order does not suffer from any legal infirmity. 11. There being no illegality, irregularity or impropriety in the impugned order, revision petition merits dismissal. 12. Revision petition is, accordingly, dismissed.