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2015 DIGILAW 334 (GAU)

Central Bank of India v. Biharilal Srivastava

2015-03-19

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. AC Sarma, the learned senior counsel appearing for the petitioner/plaintiff. Also heard Mr. B.K. Bhattacharjee, the learned counsel appearing for the respondent/Judgment Debtor (J.D.). 2. The Central Bank of India hereinafter referred to as “the Bank”, filed the M.S. No.78/1993, for recovery of Rs.1,63,732.90 on failure of the defendant to liquidate the outstanding on the loan, despite the Bank’s demand. It was pleaded in the plaint that for securing the loan, the defendant pledged the four LIC policies but with the intent to defeat the claim, those LIC policies were not kept alive by the policy holders. 3. After the W.S. was filed by the defendant, the learned Civil Judge (Sr. Division), Jorhat framed the following issues for deciding the suit:- 1) Whether there is cause of action for the suit? 2) Whether the plaintiff is entitled to a decree as prayed for? 3) Whether the counter claim/set off raised by the defendant is tenable under law? 4) To what relief or reliefs the plaintiff is entitled? 4. After considering the evidence on record, the Trial Court held that the defendant is not entitled to adjustment of rent for the occupation of his building at Rowriah by the Bank and if any rent is due, the defendant should file independent suit for recovery of rent and/or for ejectment of the occupier. But on the Bank’s claim, the Court found that the plaintiff is entitled to recover Rs.1,63,732.90 and accordingly the suit was decreed by ordering payment of the specified amount + interest @ 10% p.a. However recovery of the decreetal amount was directed from the proceeds of the matured LIC policies. 5. As earlier noted, the Bank had pleaded in the plaint that the 4 hypothecated LIC policies had already lapsed but the Trial Court drew presumption on policies being valid despite non-payment of premium by the policy holder and therefore the recovery of the decreetal amount was ordered to be made from the proceeds of the matured LIC policies. 6. The case record shows that the Policy No.440001943 for Rs.2 lakhs had lapsed due to non-payment of premium. The other 3 policies (No.033947168, 059890936 & 033941415) had however matured but the sum assured for these 3 policies were withdrawn by the concerned policy holder. 7. 6. The case record shows that the Policy No.440001943 for Rs.2 lakhs had lapsed due to non-payment of premium. The other 3 policies (No.033947168, 059890936 & 033941415) had however matured but the sum assured for these 3 policies were withdrawn by the concerned policy holder. 7. Since it was not possible to recover any amount from the LIC policies, the Bank started the Money Execution Case No.10/2006 but the J.D. filed a petition under Section 47 of the C.P.C., for dismissal of the Execution Case. The J.D. projected that the decreetal amount can’t be recovered from the J.D. in any other manner except through the matured LIC policies and accordingly it was contended that the attachment of the assets of the J.D., as proposed by the Decree Holder (D.H.), is legally untenable. 8. In their objection to the Section 47 Application, the D.H. had projected that lapsed policy and the 3 LIC policies in the name of other persons were fraudulently pledged with the Bank by the J.D. to secure the loan and since the decreetal amount from those LIC policies is not recoverable, the claim of the D.H. can’t be allowed to be defeated and the Court has power to execute the Money Decree in any legally permissible mode. 9. In the impugned judgment dated 1.10.2007 (Annexure-X), the learned Civil Judge, Jorhat observed that the Executing Court can’t go beyond the decree and is not supposed to deliberate upon the contents of a judgment. Accordingly the objection of the J.D. was accepted and it was held that the J.D. can’t be compelled to personally pay the decreetal amount. 10. Assailing the legality of the impugned order of the Executing Court, the petitioner contends that when a Money Decree is passed, the D.H. is entitled to have the decree legally executed and there can be no fetters on how the amount is to be recovered. As the plaintiff never sought recovery from the matured amount of the LIC policies, Mr. A. C. Sarma, the learned senior counsel argues that the additional direction of the Court on how the decreetal amount is to be realized is an observation in the nature of obiter and the same should have no implication for the Executing Court. 11. On the other hand, Mr. A. C. Sarma, the learned senior counsel argues that the additional direction of the Court on how the decreetal amount is to be realized is an observation in the nature of obiter and the same should have no implication for the Executing Court. 11. On the other hand, Mr. B.K. Bhattacharjee, the learned counsel for the J.D. submits that the Executing Court can’t go beyond the decree and accordingly he contends that the impugned order is in accordance with the legal provision. 12. In the case in hand, it was reflected in the plaint itself that the LIC policies pledged with the Bank had lapsed and the following pleading was recorded to this effect: “………………………………… Be it stated that the LIC policies, although pledged as a security against the loan sanctioned, but the defendant neither obtained the surrender value of the policies nor registered the assignment with LICI authorities, beside the fact, that the defendant with intent to defeat the claim of the plaintiff Bank, did not even keep alive each one of the policy, so deposited with the plaintiff Bank”. 13. Therefore when the case was heard, the Court was certainly aware that the pledged LIC policies had lapsed. Nevertheless the Court presumed that it is the responsibility of the Bank to keep alive the pledged LIC policies, despite non-payment of premium by the policy holder. Moreover referring to classification of LIC policies as the non-forfeitable or otherwise (when premium is unpaid), the Court directed recovery of the decreetal amount from the matured value of the LIC policies. 14. It was the pleaded case of the plaintiff that the LIC policies had lapsed and there was no material for the Court to conclude that recovery is reasonably possible even from such lapsed polices. Thus there should have been no occasion for the Court to specify that the dereetal amount should be recovered from the proceeds of the matured LIC policies. 15. What is more relevant however is that the Money Suit was decreed for certain amount and the plaintiff is entitled to seek recovery of the decreetal amount through due process. For executing the decree, the D.H. can proceed in any legally permissible manner under Order 21 of the C.P.C. and the D.H. can’t be confined to a specific mode for realization of his decreetal dues. 16. For executing the decree, the D.H. can proceed in any legally permissible manner under Order 21 of the C.P.C. and the D.H. can’t be confined to a specific mode for realization of his decreetal dues. 16. When a suit is decreed on contest, the D.H. must be allowed to secure the fruits of the decree and when the plaintiff had not specified that the recovery should be made from the matured amount of the LIC policies, there should have no occasion for the Court to direct the recovery from the lapsed LIC policies, pledged with the Bank. 17. In view of the foregoing discussion, I find merit in the case argued by the petitioner Bank and hold that the Executing Court should not have entertained the objection of the J.D. filed under Section 47 of the C.P.C. Because of this conclusion, this case is referred back to the Executing Court to proceed in accordance with Order 21 of the C.P.C. It is ordered accordingly. The impugned order dated 1.10.2007 (Annexure-X), passed in Misc. (J) Case No.29/2007, arising out of Money Execution Case No.10/2006, in the Court of the learned Civil Judge, Jorhat is accordingly set aside and quashed. 18. The Registry should return back the LCRs to the executing Court with a copy of this order.