Biman Talukder vs United Bank Of India And Ors

[1] Heard Mr. D. K. Biswas, learned counsel appearing for the petitioner as well as Mr. D. R. Choudhury, learned counsel appearing for the respondents.

[2] By this petition filed under Article 227 of the Constitution of India, the order dated 04.05.2018 delivered in Execution Case No.Exe(M) 03 of 2017 by the executing court has been challenged.

[3] There is no dispute that the money suit was instituted by the petitioner herein being Title Suit No.51 of 2004 in the court of the Civil Judge (Sr. Division), Court No.1, Agartala, West Tripura.

[4] By the judgment dated 18.03.2006 the said Title Suit was dismissed. Being aggrieved by that judgment dated 18.03.2006, the petitioner herein (the plaintiff in the suit) preferred an appeal under Section 96 of the CPC being T.A. 35 of 2006 in the court of the District Judge, West Tripura, Agartala which was eventually transferred to the court of the Additional District Judge, court No.2, West Tripura, Agartala. The said appeal was heard and disposed of by the judgment dated 03.05.2007.

[5] The appellate court by interfering with the judgment of the trial court dated 18.03.2006 has observed inter alia that the plaintiff is entitled to a decree declaring the charge framed on 15.07.2004 as null and void. Consequently, decree of injunction restraining the management from proceeding against the plaintiff-appellant is issued. It has however been clarified that the plaintiff-appellant is not entitled to any damage from the management of the Bank inasmuch as authority was competent to take action against any of its employees and there is nothing on record to show that such action of the management was based on ulterior motive or apparent cause. The first charge against the plaintiff was dropped and in that regard the proceeding was closed. The second charge is not found to be supported by law. Hence, the plaintiff-appellant is held to be entitled to the consequent relief of refund of his withheld amount in the RIP amounting to Rs.51,097/-.

[6] Accordingly, the decree has been drawn. No further appeal was carried out by the plaintiff. But the bank respondent had preferred an appeal under Section 100 of the CPC and the same was admittedly dismissed by this court without any interference.

[7] As the decree was not satisfied, the plaintiff in the suit set the execution proceeding in motion. The said execution proceeding being No.Exe(M) 03 of 2017 was heard finally on 04.05.2018 and on appreciation of attending facts the executing court passed the following order:

"This executing court is of the opinion that the order dated 03.05.2007 of the Ld. Addl. District Judge, Court No.2 speaks about no interest on the amount of Rs.51,097/- but the DH by the instant execution proceeding claiming for Rs.5,91,582/-after calculating interest. In support of such calculation of interest Ld. Advocate for the DH submits that the term R.I.P. used in the judgment dated 03.05.2007 of Ld. Addl. District Judge, Court No.2, West Tripura, Agartala be read as "Rate of Interest Periodically.

But this executing Court is not satisfied with the submission of Ld. Advocate for DH that the R.I.P. stands for "Rate of Interest Periodically". Hence, as per provisions of Order-XXI, proviso to Sub-rule 1A of the Rule 17 of the CPC this Court decided provisionally that the JDs are liable to pay an amount of Rs.51,097/- only to the DH. So, the JD's are hereby asked to pay the amount of Rs.51,097/- to the DH on or before the next date.

Fix 31.05.18 for payment by the JD's."

That order has been challenged in this writ petition.

[8] Mr. D. K. Biswas, learned counsel has succinctly submitted that the investment has been made by the petitioner and accrual on that investment is to be governed in terms of the scheme and disbursement has to be made accordingly. That was the decree as passed by the said appellate court.

[9] Mr. D. R. Choudhury, learned counsel appearing for the Bank-respondents has submitted that the Bank has been simply directed to pay a sum of Rs.51,097/- which was admittedly the investment made in the RIP by the petitioner. No interest has been granted by the appellate court and there is no such decree existing in favour of the decree holder. Therefore there is no infirmity in the impugned order.

[10] Mr. Choudhury, learned counsel in order to support his submission has referred a few decisions of the apex court viz., State of Punjab and Others Versus Harvinder Singh reported in (2008) 3 SCC 394 and Brakewel Automotive Companies (India) Private Limited Versus P.R. Selvam Alagappan reported in (2017) 5 SCC 371. Those reports have, however, nothing to do with the context, this court is confronted with.

[11] However, Mr. Choudhury, learned counsel has relied another decision of the apex court in Rameshwar Dass Gupta Versus State of U.P. And Another reported in (1996) 5 SCC 728 to exposit the law relating to the power of the executing case. It has been held in Rameshwar Dass Gupta (supra) as follows:

"4.It is a well-settled legal position that an executing court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution? In our view, the executing court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It is true that the High Court normally exercises its revisional jurisdiction under Section 115 CPC but once it is held that the executing court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegality in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."

[12] Based on the said enunciation, Mr. Choudhury, learned counsel has submitted that the executing court cannot expand the scope of the decree nor can it truncate the scope of the decree in any manner. As such, the relief as has been asserted by way of execution is totally unsustainable in law. The petitioner cannot urge the executing court to declare an additional relief by way of purported execution.

[13] Having appreciated the submission made by the learned counsel for the parties, this court is of the view that what has been provided in the decree can only be executed, if that part is executable. In the decree, it has been categorically provided that the plaintiff is entitled to the consequent relief of realizing his withheld amount of RIP of Rs.51,097/-. The entire controversy hinges in respect of the said direction made in the decree. Whether realization of the withheld amount of RIP of Rs.51,097/- would mean, merely a sum of Rs.51,097/- or it would mean the withheld amount of RIP on its maturity. The language as employed is plain and simple. It clearly lays down that the withheld amount of RIP [enumeration of which was Rs.51,097/-]. It shall mean the amount whatever would accrue in the RIP by operation of conditions of the scheme and the decree-holder (the plaintiff) will be entitled in terms of the RIP (Re-Investment Plan) and that accrued amount has to be refunded to the plaintiff, no restricting the same to Rs.51,097/-.

[14] Accordingly, the interpretation given by the executing court in the order dated 04.05.2018 is grossly erroneous when the executing court directed the JDs, the respondent herein to pay the sum of Rs.51,097/- only.

[15] Having observed thus, this order stands interfered with.

[16] The JDs are directed to pay the accrued amount on Rs.51,097/- as per the RIP to the decree-holder within a period of 1 (one) month from the day when a copy of this order would reach the executing court.

It is made further clear that, accrual would mean all benefits that will evolve in terms of the RIP. The JDs shall also produce the account of the RIP with a copy of the scheme to the executing court who will verify what is the accrual amount in terms of the RIP.

[17] Accordingly, this petition stands allowed to the extent as indicted above.

There shall be no order as to costs.

A copy of this order be furnished to the learned counsel for the parties.