AI Structured Summary
Not yet generated for this judgment
Judgment
Appellants/Opposite Parties No.1 and 2, being aggrieved by impugned order dated 26.09.2012, passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, ''State Commission'') in Execution Application No.10 of 2012 in (Consumer Complaint No.82 of 2010) have filed the present appeal.
Brief facts are that Respondent /Complainant has filed a consumer complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ''Act'') against appellants, stating that she was having Saving Bank Account in the Appellants'' Bank. On 26.5.2010, she collected her accounts statement from the bank. On comparison of the entries made in the pass book and statement of account, she found that some amounts have been withdrawn from her account, without her knowledge and consent. Thus, alleging deficiency on the part of the appellants she filed the complaint seeking following reliefs; " It is, therefore, prayed that the complaint may kindly be allowed and necessary directions be issued to the Respondents to pay a sum of Rs. 83 lacs & 10 thousand with interest @ 15% per month from the day the amount was withdrawn from her account and till the amount is paid. She may also be allowed necessary damages/compensation for causing tension and stress by withdrawing the amount illegally from her Saving Bank Account. Respondents No.3 and 4 be directed to pay to the complainant the amounts of Kotak Retirement Insurance Plan to the complainant on maturity after the expiry of period of 3 years from the date of commencement. Complainant may also be granted the cost of the mental agony and harassment and litigation costs ."
Appellants contested the complaint and denied any deficiency on their part.
The State Commission vide order dated 3.5.2012, allowed the complaint with costs of Rs.10,000/- and passed following directions; " The respondent Bank is directed to credit an amount of Rs.83.10 lakh in the account of the complainant as was coming in her account with due information to the complainant.
The respondent Bank would also be liable to pay interest at the rate of 9% per annum on the amounts withdrawn from the account of the complainant from the date of withdrawals till the date of payment of those amounts to the complainant.
The bank respondent No.2 would be at liberty to withdraw the amount of Rs.7,00,000/- and Rs.45,00,000/- from the account of the complainant and credit the same in the account of Navdeep Kaur daughter of the complainant.
The Bank respondent No.2 would be at liberty to withdraw the amount of Rs.35,000/- and Rs.1,75,000/- from the account of Navdeep Kaur daughter of the complainant and the respondent Bank would also be at liberty to withdraw the amount from the Kotak Life Insurance respondent No.3 and 4 for which the complainant had allegedly taken the life insurance policies etc. from respondents No.3 and 4.
If the aforesaid amount is not credited to the account of the complainant within a period of two months after the receipt of a copy of this order, respondent No.2 Bank would be liable to pay interest at the rate of 12% per annum with effect from today till the amount is credited in the account of the complainant ."
The above order of the State Commission has attained finality, since it was never challenged by either of the parties.
Later on, respondent filed Petition dated 24.7.2012 under Section 27 of the Act before the State Commission, alleging that appellants have mis-interpreted and misunderstood the order of the State Commission and have not correctly deposited the amounts in the account of respondent and wrongly withdrew certain amounts and prayed that appellants; " Be directed to deposit a sum of Rs.75,80,857/-including interest upto 16.07.2012 and they may be further directed to pay 12% interest on this amount from the date of order dated 3.5.2012 as per the directions of this Hon''ble Commission. "
In reply appellants stated, that in terms of order dated 3.5.2012 an amount of Rs.83,10,000/- plus Rs.33,41,215.48 as interest at the rate of 9% per annum plus Rs.10,000/- as costs has been credited in the account no.02540020001812 of the respondent.Further, in terms of para 61 of the aforesaid order, the amount of Rs.7,00,000/-and Rs.45,00,000/-(Total Rs.52,00,000/-) alongwith proportionate interest thereon has been withdrawn from the account of the respondent and said amount, has been credited in the account of Ms. Navdeep Kaur,daughter of respondent.As order dated 03.05.2012 has been duly complied with, execution application deserves dismissal.
The State Commission, vide its impugned order allowed, execution application and passed following directions; "29 . In view of the discussion held above, by reading the judgment as a whole it clearly means that the JD Bank was to credit an amount of Rs.1.33 Crore in the account of the applicant (complainant) and then withdraw an amount of Rs.7 lakh and Rs.45 lakh from the account of the applicant (complainant). As a result an amount of Rs.83.10 lakh was to remain in the account of the applicant (complainant) besides the interest amount and the costs amount as mentioned in para 59 and 60 of the judgment. By reducing the amount mentioned in para 61, the amount of Rs.83.10 lakh has not remained in the account of the applicant (complainant) and the wording of para 59 stands defeated. Of course, there was lack of clarification in para 61 which has been exploited by the JDs.
Therefore if the judgment is read as a whole it would clearly mean that Rs.83.10 lakh was to remain in the account of the applicant (complainant) and no deduction could be made out of it. If the JDs (respondents No.1 and 2) re-credit the entire amount of Rs.1.33 crore withdrawn from her account for investing in the Kotak Life Insurance then the JDs (respondents No.1 and 2) would be entitled to recover the amount as mentioned in para 61 from the account of the DH.
It is, therefore, held that the JDs (respondents No.1 and 2) have clearly failed to comply with the judgment in full and they have wrongly misinterpreted the judgment as a whole.
This application is accordingly accepted and the JDs (respondents No.1 and 2) are directed to comply with the full judgment as discussed above and the amount withdrawn from the account of the applicant (complainant) should be re-deposited in the account of the applicant (complainant) and the amount mentioned in para 61 of the judgment which is payable to Navdeep Kaur should be paid separately from their own account or in the alternative the amount of the applicant (complainant) including that of Navdeep Kaur should be credited in the account of the applicant (complainant) and thereafter the amount be taken out in terms of para 61 of the judgment and re-credited in the account of Navdeep Kaur.
The JDs (respondents No.1 and 2) could not comply with the full judgment because of ambiguity in para 61. It be now complied with within a period of two months from the date of receipt of a copy of this order failing which para 63 of the judgment dated 3.5.2012 shall apply ."
We have heard learned counsel for the parties and gone through the record.
It is submitted by learned counsel for appellants that impugned order is patently wrong and against the record. The executing court cannot go beyond the decree. The State Commission in execution proceedings has passed an altogether new order after admitting that there is ambiguity in order dated 3.5.2012, vide which complaint was allowed. Therefore, impugned order is apparently wrong. In support, learned counsel has relied upon following decision of Hon''ble Supreme Court ; " Gurdev Singh v. Narain Singh, AIR 2008 Supreme Court, 630."
On the other hand, it is contended by learned counsel for respondent, that impugned order is perfectly legal and justified, since there was some ambiguity in order dated 3.5.2012. The State Commission, rightly allowed the execution application, and respondent is entitled to a sum of Rs.1.33 crores and not Rs.83.10 lacs. In support, learned counsel has relied upon decisions of the Apex Court; " (i) Bhavan Vaja and Ors. Vs. Solanki Hanuji Khodaji Manasang, AIR1972 SC 1371."
(ii) Topanmal Chhotamal Vs. Kundomal Gangaram and Ors, AIR 1960 SC 388."
It is well settled that the executing court cannot go beyond the decree as well as spirit of the order.
As noted above, respondent in her consumer complaint has claimed a sum of Rs. 83.10 Lakh only plus interest.
The State Commission therefore, vide order dated 3.5.2012 allowed that prayer and directed the appellants to credit a sum of Rs. 83.10.lacs in the account of respondent and to pay interest @ 9% P.A. on the amounts withdrawn from the account of respondent, from the date of withdrawal till the date of payment. The State Commission, gave liberty to the appellants to withdraw sum of Rs.7,00,000/-& Rs.45,00,000/-from the account of respondent and credit the same to the account of her daughter-Navdeep Kaur. In addition, appellants were also given liberty to withdraw the sum of Rs. 35,000/- and Rs.1.75 lacs from the account of Navdeep Kaur. Further, appellants were given liberty to withdraw the amount from Kotak Life Insurance Company, for which respondent had allegedly taken life insurance policy. This order being not challenged by either of the parties, has become final.
The State Commission while disposing of the execution petition, in the impugned order itself observed; " 13. We find merit in the submission of the learned counsel for the judgment-debtors respondents that the court cannot go behind the decree.
But at the same time the basic principle is that the judgment has to be read as a whole for ensuring that compliance of the order has been made by the judgment debtors or not. It could be possible that there is some ambiguity in the operative part of the judgment but when the judgment is read as a whole then it is found that the operative part was not in conformity with the judgment and the court has to read the judgment as a whole and is not to confine itself only to the operative part. This view of law has been taken by the Hon''ble Supreme Court in the judgments referred to by the learned counsel for the complainant/decree holder/applicant ."
A bare reading of the above order shows, that finding given by State Commission in the operative, portion are not in conformity with its own order. Therefore, while deciding the execution petition, State Commission could not change the nature and spirit of order dated 3.5.2012, passed in the original complaint. Thus, by passing new directions in the execution petition, State Commission has committed grave error and illegality, since respondent itself in her consumer complaint, had never sought the amount of Rs.1.33 crores. The respondent herself in the complaint filed before the State Commission, has sought directions for withdrawal of the sum of Rs.83.10 lacs only. However, in the execution proceedings for reasons best known to the State Commission, it enhanced that amount to Rs.1.33 crores, which were never not claimed by the respondent. Therefore, we have no hesitation in observing, that State Commission has committed grave illegality in passing the impugned order. Accordingly, we set aside the impugned order. However, respondent can get order dated 3.5.2012 executed in accordance with provisions of law, if the same has not been executed so far. With these observations, present appeal stand disposed of.
Parties shall bear their own cost.