AI Structured Summary
Not yet generated for this judgment
Judgment
K.L. Manjunath, J.—The appellant is questioning the legality and correctness of the order passed in W.P. No. 17078/2009 (GM-CON) dated 18th March, 2010, in this appeal. Heard the learned counsel for the parties.
The third respondent was an employee of the appellant. He had filed a complaint before the District Consumer Disputes Redressal Forum, Bangalore Urban District, in Complaint No. 1882/1996 contending that the appellant has not paid provident fund payable to him. The complaint came to be allowed on 27.06.2002 directing the appellant herein to pay a sum of Rs. 57,000/- to the complainant with accrued interest till the date of complaint and from the date of the complaint till payment, the appellant was directed to pay interest on the aforesaid sum at 9% p.a. The appellant was also directed to pay a sum of Rs. 3,000/- as cost of the proceedings.
On the ground that the appellant herein has failed to pay the amount as directed by the District Consumer Disputes Redressal Forum, an execution petition came to be filed. In the execution petition, the third respondent filed a memo of calculation on 5.1.2007 stating that he is entitled for a sum of Rs. 2,73,290/- after deducting the amount already paid by the appellant. The memo of calculation was filed on 31.1.2009. The appellant had not filed objections to the memo of calculation. In the circumstances, based on the memo of calculation of the third respondent, a recovery certificate was issued in favour of the third respondent.
Issuance of recovery certificate was challenged by the appellant by filing the writ petition. The learned Single Judge has dismissed the writ petition only on the ground that the appellant did not file objections to the memo of calculation. Accordingly, writ petition came to be rejected.
Aggrieved by the order of dismissal of the writ petition the present appeal is filed.
During the pendency of the writ petition the appellant has deposited a sum of Rs. 1 lakh and at the time of filing this appeal pursuant to the order of this Court, a sum of Rs. 50,000/- is also deposited by the appellant. The third respondent has already withdrawn the amount of Rs 1 lakh deposited before the writ Court. The amount of Rs. 50,000/- deposited by the appellant before this Court is still with the registry.
The grounds arise for our consideration in this appeal are; whether the Executing Court was justified in issuing recovery certificate based on the memo of calculation filed by the third respondent only on the ground that the appellant did not file any objection and whether the Executing Court was required to look into the correctness of the memo of calculation before issuing the recovery certificate and whether the learned Single Judge has committed an error in rejecting the writ petition on the ground that since the appellant did not file any objection to the memo of calculation, he cannot interfere with the same?
It is not in dispute that the execution petition was not contested by the appellant. Merely based on the memo of calculation filed by the third respondent, recovery certificate has been issued. Even though the appellant has not contested the matter before the Executing Court, it is the duty of the Executing Court to find out whether the memo of calculation filed by the third respondent was in accordance with the order passed in the original proceedings by the District Forum. On account of wrong calculation, if the third respondent has made any claim and if the appellant/judgment debtor had not contested the case, the learned Single Judge could not have rejected the writ petition. According to us, a duty is cast upon the Courts to find out whether the memo of calculation filed by the third respondent was correct and proper, otherwise great injustice would be caused if for any valid reason, if they are unable to contest the case and if the Executing Court is permitted to issue recovery certificate based on the memo of calculation filed by the third respondent without considering correctness of memo of calculation. Therefore, we are of the opinion, there is an inherent lack of jurisdiction in issuing recovery certificate/by the Executing Court and that the learned Single Judge has committed an error in not looking into the correctness of the memo of calculation. As a matter of fact, we have looked into the memo of calculation filed by the third respondent before the Executing Court. According to us, there is a mistake committed by him. In the circumstances, the appeal has to be allowed and the matter requires to be remitted back to the Executing Court to give an opportunity to the appellant to find out the correctness of the memo of calculation filed by the third respondent. Accordingly, the appeal is allowed. Third respondent is also permitted to withdraw the amount in deposit before this Court, subject to out come of the execution.
Parties to bear their cost.