Mpmc Pvt. Ltd vs Canara Bank

These two applications being GA 1404 of 2013 and GA 488 of 2018 have been filed in Execution Case No. 287 of 2011. The Execution Case has been filed by the decree holder for realisation of the dues from the judgement debtor bank in pursuance of the compromise decree passed in APO 238 of 2008. In Execution Case a special referee was appointed by the Executing Court vide order dated 31st January 2013. The Special Referee who was appointed in the Execution Case, filed a report before the Court with regard to the assessment regarding payment of arrears dues by the judgment debtor in terms of the said decree. Subsequent to the said order dated 31st January, 2013 on 1st April, 2013 Special Officer filed his report and on the basis of an affidavit affirmed by one of the responsible officers of the judgment debtor bank the Executing Court passed an order on 7th August, 2014 holding, inter alia, that a sum of Rs.19,81,273/- would be the amount payable towards municipal rates and taxes on the basis of the Terms of Settlement entered into between the parties before the Hon'ble Division Bench. The said order was challenged in appeal and the Hon'ble Division Bench in appeal declined to interfere with the order so passed on 7th August, 2014. The only contention before the Appellate Court made by the judgment debtor is that the affidavit which was filed by the defendant bank contained certain wrong figures and arithmetical mistakes. Considering such submission the Hon'ble Division Bench while dismissing the appeal being APO No. 360 of 2017 allowed the defendant bank/judgment debtor to take such steps, which might be available to the said judgment debtor if it thought that the calculation contained any arithmetical mistakes. It is contended by the judgment debtor that in view of such arithmetical mistakes, they have taken out present application i.e. GA 488 of 2018. The other application being GA 1404 of 2013 was filed by the judgment debtor on the basis of the exception filed by it against the report of the Special Referee.

On perusal of the application GA 488 of 2018, it appears that it is really the grievance of the judgment debtor that the Special Referee has not made proper calculation with regard to the assessment of dues payable by it to the decree holder. My attention has been drawn to the portion of the report of the Special Referee at pages 70 and 71 and the learned Counsel submits that the calculation so made by the Special Referee is not correct and is not in tune with the decree so passed by the Appellate Court. Therefore, in this application it has been prayed that report dated 1st April, 2013 by the Special Referee in EC No. 287 of 2011 be set aside.

Mr. Bose, learned Senior Counsel appearing for the decree holder has placed reliance on a decision in the case of (BHAWARLAL BHANDARI VERSUS UNIVERSAL HEAVY MECHANICAL LIFTING ENTERPRISES) reported in (1999) 1 Supreme Court Cases 558. Relying on this decision Mr. Bose, submits that the petitioner cannot have any scope to pray before the Court to reopen the whole issue once again when the appeal has already been decided and particularly when a subsequent Appellate Court has already held that the decree under execution does not contain any ambiguity. The decree under execution clearly demonstrates that the defendant bank is liable to pay Corporation Tax and Surcharge. Therefore, simply saying that on the basis of some mistakes in an affidavit filed earlier before the Executing court the whole issue can be reopened once again to enable the judgment debtor to withdraw its admission before a Learned Court based on an affidavit, which is not permissible in law when it is proved by cogent evidence that such affidavit was filed under coercion or a product of fraud and the method of calculation as has been challenged by the judgment debtor can also not be accepted. It is apparent that the report of the Special Referee was very much on record when the bank filed the affidavit and on the basis of which the Executing Court passed order on 7th August, 2014. If the affidavit according to the judgment debtor was affirmed containing certain mistakes, it is doubtful whether the assumption which has been made on the said affidavit can be reopened by an application before the Executing Court again, without leading appropriate evidence in support of such contents contained in the affidavit and without examination of the person who affirmed the affidavit. In such view of the matter it is difficult to accept at this stage that by this application the judgment debtor should be allowed to agitate before this Court the calculation made by the Special Referee which has already been accepted by the Courts including the Division Bench. So far the liberty granted by the Division Bench for taking appropriate steps with regard to arithmetical error, I do not find that the grounds taken in the application in GA 488 of 2018 is restricted to any arithmetical error only and this Court cannot grant any relief under the said application. This Court, therefore, rejects GA 488 of 2018 and consequently the application being GA 1404 of 2013 is also rejected.

Let the Execution Application being EC 287 of 2011 be listed for hearing on 22nd January, 2019.