State Bank of Mysore vs V.E. Ponamma

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 17.07.2010 passed on I.A. No. 6 in Execution Petition No. 48/1999.

The petitioner-Bank had instituted the execution proceeding in Ex. No. 48/1999 in the Court of the Civil Judge (Sr. Dn.), Madikeri. The judgment debtors who had appeared therein had objected to the filing of the execution petition in the Court of the Civil Judge at Madikeri keeping in view that the claim made in execution petition was in excess of Rs. 10 lakhs. The Executing Court by its order dated 28.01.2010 had allowed the application in I.A. No. 4 filed by the judgment debtors and closed the execution petition but granted liberty to the petitioner-Bank to file fresh petition for recovery of the amount due from the JDRs before the proper forum within 20 days from the date of the order. Since the petitioner-Bank did not file the proceedings before the appropriate forum within the time frame provided, the application in I.A. No. 6 under Section 148 read with Section 151 of Code of Civil Procedure was filed before the Court of the Civil Judge (Sr. Dn.)., Madikeri seeking extension of time to file the execution petition before the appropriate forum which in the instant case was before the Debt Recovery Tribunal. The Court below has dismissed the application by its order dated 17.07.2010. The said order is assailed in the instant petition.

The learned Counsel for the petitioner, while assailing the said order, would contend that the Court below was not justified in its conclusion in rejecting the application only due to the reason that the application was filed after the lapse of the time which had been granted by its earlier order. It is contended that the provision contained in Section 148 of the Code of Civil Procedure provides for making such application even after the lapse of the time which has been granted earlier. It is therefore contended that in the instant case though the application was filed after two months from the lapse of the original time frame which had been fixed, reason assigned was that the petitioner being a Bank, appropriate correspondence was to be exchanged and thereafter, petition was to be filed and hence, it is contended that the time be extended further to file the execution petition before the appropriate forum.

The learned Counsel for the respondent would however seek to sustain the order passed by the Court below. It is his contention that when the Court below had held that it has no jurisdiction to entertain the execution petition the application subsequently filed could also not be entertained by the Executing Court and therefore, the Court below is justified in its conclusion. It is contended that the petitioner-Bank had not indicated bonafide reason for seeking extension of time and therefore, the Court below was justified in dismissing the application. The learned Counsel has also relied on the decisions of this Court in the case of K. Kunhambu and Another Vs. Vijaya Bank, and in the case of Karnataka Bank Limited, Holenarasipur Vs. S.N. Nanjappa and Another, . Hence, it is contended that in the instant case, petition is liable to be dismissed.

In the light of the rival contentions, I have perused the petition papers including the order dated 17.07.2010 impugned herein. At the out set, it is necessary to notice that the Court below by its order dated 28.01.2010 had upheld the contention of the judgment debtors that the execution petition would have to be filed before the Debt Recovery Tribunal and therefore, though allowed IA No. 4 filed by the JDR, it had granted time and liberty to the petitioner-Bank to institute such proceedings. In that light, though the learned Counsel for the respondent has relied on the decisions noticed supra, there is no need to advert into the further details with regard to the same since in the first of the said decisions, this Court had taken note of the fact that when the claim is more than Rupees Ten lakhs, the jurisdiction would be that of the Debt Recovery Tribunal. In the second of the above cited decisions, this Court had taken note of the quantum of the claim that had been made in the execution petition and in the said petition, since the claim was less than Rupees Ten lakhs but interest had accrued later, the matter had been remitted to the Court below. Therefore, on the legal position that if the claim is beyond Rupees Ten lakhs, proceedings would have to be initiated before the Debt Recovery Tribunal, it is well established position of law. In any event, when the Court below, in the instant case by its order dated 28.01.2010, has held that the execution proceedings would have to be initiated by the petitioner-Bank before the Debt Recovery Tribunal and liberty was given, when the said order is not assailed in this petition, it is unnecessary for this Court to once over again consider that aspect of the matter. In that view, all that is relevant to consider is as to whether the Court below was justified in dismissing the application filed under Section 148 read with Section 151 of the Code of Civil Procedure by indicating the reasons as has been done.

To consider that aspect of the matter, perusal of Section 148 of the Code of Civil Procedure would indicate that the application could be made for extension of time even after the original time as has been granted has expired. In the instant case, by order dated 28.01.2010, the Court below had granted liberty and also a time frame had been fixed to file the proceedings within 20 days. Since there was delay in filing the execution petition before the Debt Recovery Tribunal and two months had gone by, instant application has been filed seeking extension of time. Considering the fact that the petitioner-Bank would have to take decision after corresponding with the hierarchy in the Bank which had consumed some time and in such an event when application had been filed seeking extension of time, then, such application would merit consideration.

The contention of the learned Counsel for the respondent that the said application was not maintainable before the Executing Court when the Executing Court itself had come to the conclusion that it had no jurisdiction to entertain the execution petition is not sustainable since in any event by the said application no other relief has been sought from the Executing Court except to seek for extension of time which had been earlier permitted by it which could have been considered only by that Court. Therefore, in such circumstance, if the reason as assigned by the Court below that the consideration of the application cannot be made as the application was made beyond the time which had been earlier permitted is taken into consideration, such reason would not be sustainable as the application would require consideration on its merit. Further the reason assigned by the Court below that the time sought in the application was up to 15.05.2010 and since the application was being considered on 17.07.2010 the time sought has lapsed is also not sustainable for the reason that the application in any event had been filed on 21.04.2010 and in such application, time had been sought up to 15.05.2010. Merely because the application had remained pending before the Court even on a date subsequent to 15.05.2010 that was taken for consideration belatedly, the same cannot be a reason for rejecting the application. Therefore to the extent of the Court below dismissing the application on the said reasoning is not acceptable.

At this juncture, it is also to be noticed that the learned Counsel for the respondent contends that the Manager who had been examined on behalf of the Bank had admitted in the cross-examination that he was aware of the legal position that the execution petition should have been instituted before the Debt Recovery Tribunal. Even if the said contention is kept in view, in my opinion, the same cannot be a total bar for the petitioner-Bank to institute the execution petition before the appropriate forum since the Executing Court itself by its order dated 28.01.2010 had permitted the filing before Debt Recovery Tribunal and the said order had not been assailed by the judgment debtors on the said ground. However, the contention as put forth certainly would arise for consideration, if in the event ultimately while carrying out the recovery proceedings the amount towards interest becomes payable for the period for which the petitioner-Bank had on its own defaulted and if for the said period, interest is burdened on the judgment debtor. At that stage of the extension, this aspect of the matter would still be open for consideration by the appropriate forum viz., Debt Recovery Tribunal. If this aspect of the matter is put forth by the judgment debtors before the Debt Recovery Tribunal seeking that the interest for the said period wherein there is default on the part of the petitioner-Bank be disallowed, then to the said extent, the Debt Recovery Tribunal shall take a decision on that aspect of the matter.

Therefore, in terms of the above, the order dated 17.07.2010 is set aside. Consequent there to, I.A. No. 6 filed in Execution Petition No. 48/1999 is allowed. The time for filing the execution petition as permitted by the order of the Court below on 28.01.2010 stands extended by 30 days from this day.

In terms of the above, petition stands disposed of.