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Judgment
J.M. Malik, J
There can be no conflictions on the point that this litigation has had a chequered history in several Fora including the Hon'ble Punjab and Haryana High Court. The facts of this case are these. Punjab and Sind Bank filed a suit for recovery of Rs. 11,14,443/- along with interest @ 15% p.a. with quarterly rests on 11.11.1989 against the three respondents/defendants namely Shri Balraj Singh, respondent No. 1; Shri Malkiat Singh, respondent No. 2; and, Smt. Bachan Kaur, respondent No. 3. The said case was filed before the Senior Sub-Judge, Moga (Punjab) under Order 37, CPC. Judgment and decree were passed against Shri Balraj Singh, respondent No. 1 and Smt. Bachan Kaur, respondent No. 3 by Sub-Judge First Class, Moga on 7.2.1991.
In the meantime, the case was transferred to learned DRT by operation of law. Judgment was passed against Shri Malkiat Singh, respondent No. 2 by learned DRT, Jaipur on 29.1.1997, but it appears that no recovery certificate as such was issued.
In the meantime, respondent No. 2 filed an appeal before ADJ, Moga against the judgment and decree dated 7.2.1991. The same was dismissed on 23.4.2009.
In the meantime, execution proceedings were initiated against respondent Nos. 1 and 3 at Civil Courts, Moga on 5.6.1991. On 4.3.1998, the Hon'ble High Court of Punjab and High Court dismissed the objections in the revision filed against attachment of properties in the execution proceedings.
In the meantime, the matter went to the Lok Adalat, Moga. Vide its order dated 30.10.1999, Lok Adalat, Moga disposed of the execution proceedings but kept the attachment order intact as there was likelihood of ultimate compromise being reached. The correspondence letters for compromise dated 13.6.2000, 2.2.2002, 28.2.2003, 29.4.2003 and 25.7.2003 were placed before this Court. Ultimately, OTS was sanctioned on 15.1.2004 wherein it was settled that the respondents would pay a sum of Rs. 11.62 lacs within 15 days. OTS sanction was conveyed to the respondents on 2.2.2004. However, respondents did not live up to the OTS proposal. Consequently, the said settlement was cancelled.
On 5.10.2004, execution application was filed before the Recovery Officer, DRT, Chandigarh against respondent Nos. 1 and 3 on the basis of RC No. 250/96. It transpired that recovery certificate was not yet issued. The fault, if any, lies at the door of the DRT concerned. The appellant Bank filed application for issuance of recovery certificate against respondent Nos. 1 and 3 before, DRT, Chandigarh on 28.5.2007.
Hon'ble High Court of Punjab and Haryana in writ petition No. 3055/2007 recorded the willingness of respondent No. 3 to pay Rs. 11.62 lacs vide order dated 29.5.2007. Thereafter, the matter again came up for hearing before the Hon'ble High Court on 26.11.2007. The amount of Rs. 11.62 lacs pursuant to the directions issued by the Hon'ble High Court on 29.5.2007 was deposited with the Bank on 30.5.2007 as per the settlement arrived at between the respondents and the Bank on 2.2.2004. The said writ petition was got disposed of with the directions to respondent No. 3 to avail alternate remedy provided under the DRT Act. Regular Second Appeal filed by respondent No. 3 against the order dated 23.4.2009 of learned ADJ, Moga stood dismissed by Hon'ble High Court of Punjab and Haryana.
In the meantime, the learned DRT, Chandigarh passed the impugned order. The learned Trial Court observed that a sum of Rs. 11,62,000/- had already been deposited on 30.5.2007 and the appellant Bank is bound by the settlement dated 2.2.2004. The learned Trial Court further held that the respondents are liable to pay a sum of Rs.11,62,000/- along with interest @ 12% p.a from 2.2.2004 till the date of realisation after adjusting any interest that was accrued on the deposit amount of Rs.11.62 lacs. The learned Trial Court also issued recovery certificate against defendants/respondents and ordered the issuance of modified certificate against Shri Malkiat Singh. Aggrieved by that order, the appellant Bank has filed the present appeal.
I have heard the Counsel for the parties. Counsel for respondent No. 1 vehemently argued that the present case is barred by time. He has cited an authority reported in Raghu Nath Rai Bareja v. Punjab National Bank, T (2007) SLT 245=1 (2007) CLT 1 (SC)=2007(1) ISJ (Banking) 1.
I am of the considered view that the facts of the above said authority hardly dovetail with the facts of the present case. In the instant case, the period of 12 years will start from the date of impugned order which was rendered on 2nd December 2009. Vide order dated 19.1.1997, the judgment was passed by learned DRT, Jaipur. He, however, did not issue the recovery certificate. The recovery certificate was issued after the expiry of 12 years by his learned predecessor Dr. T. Ravishankar, DRT on 2.12.2009. The fault if any lies with the Court. By no stretch of imagination it can be held that this case is barred by limitation. Although, this case has taken a lot haul of time, yet, it cannot be said that the same is barred by limitation.
I also find that the rate of interest granted by the learned DRT is on the lower side. The reasons for the same are enumerated herewith. The respondents have taken enough time to comply with the settlement between the parties. There was inordinate delay in complying with the OTS proposal. If the amount is not paid within the prescribed period, the whole purpose of compromise stands defeated. The respondents tried to procrastinate the proceedings on one or the other pretext. They took more than three years in paying the said amount. It is also clear that they did not appear before the civil Court or the DRT while it was in their knowledge that the case was pending against them. The Bank cannot be said to be bound by the said agreement. The learned Trial Court has granted interest @ 12% p.a. effective from 2.2.2004 which appears to be on the lower side. The bizarre conduct of the respondents is difficult to fathom. Although, the Bank is not bound by the said agreement, yet, the view taken by the Courts is that some just and reasonable interest should be granted in favour of the Bank. The loan was taken for commercial purposes. The O.A. was filed as back as on 11.11.1989. The settlement was reached in the year 2004. The respondents had got benefit in the said settlement. With the addition of interest @ 15% p.a. with quarterly rests, the requisite amount had gone to a huge sum. The respondents got the benefit at the time of OTS but could not adhere to the same, again defaulted and paid the amount as per directions given by the Court after a period of more than three years. The very purpose of the Act, i.e., fast recovery of debt stands defeated. There is lot of difference between the contractual rate and 12% p.a simple rate of interest.
Keeping in view all these facts and circumstances, I hereby direct that the respondents would pay simple interest @ 16% p.a. from 2.2.2004 till the recovery of the entire amount. They are entitled to adjustment of Rs. 11,62,000/- w.e.f. 30.5.2007. The said amount is deemed to be appropriated from that date. Their account will not be counted in the category of saving Bank account as the Bank wishes and exposes its mala fide intention. The Bank is directed to supply a fresh statement of accounts in accordance with these lines before the learned DRT within 30 days from today along with a copy which the respondents can collect from the Registrar, DRT-II, Chandigarh. The respondents are given further 30 days' time to pay off the said amount if any to the Bank. In case the Bank has recovered extra amount as claimed by the Counsel for the respondents, it would return the same within 30 days. The Bank will release their title deeds within four days thereafter and issue 'no due certificate'.
The Bank will get the costs throughout. Counsel's fee as per Bank's norms. The appeal stands disposed of.
Copies of this order be furnished to the parties as per law and one copy be sent to the learned DRT forthwith.