Final Order 1

Order Details: Notice of Motion
Pdf Text: Order n Notice of Motion
No. 1293 of 2020 1
MHCC010048962018
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1293 of 2020.
and
CHAMBER SUMMONS NO. 597 OF 2020
and
ORDER BELOW EXH. 6
IN
EXECUTION APPLICATION NO.486 OF 2019
IN
S. C. SUIT NO.313 of 2014.
Bijendra Singh. ...Applicant/
Decree Holder
In the matter of :-
Bijendra Singh. ..Decree Holder
V/s.
1. Perfect House Ltd. And Ors. ..Judgment Debtor.
Appearances :-
Adv. Manmohan Rao for Decree Holder.
Adv. Hemand Ghadigaonkar for Judgment Debtor.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 04/09/2023
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No. 1293 of 2020 2
ORAL ORDER
The plaintiff/decree holder moved Notice of Motion
No.1293 of 2020 to direct defendant to redeposit an amount of Rs.
8,77,834/- withdrawn in violation of order of the Court. He also moved
Chamber Summons No. 597 of 2020 directed the defendant/Judgment
Debtor to disclose its assets and to file affidavit. whereas Judgment
Debtor/defendant has filed application at Exh. 6 to direct decree holder
to accept an amount of Rs. 3,83,367/- toward full and final satisfaction
of the decree. All these proceedings are interlinked with each other.
Hence, taken for the decision together.
2. It is contention of the decree holder that this Court vide
order dated 16.03.2020 had restrained defendants to operate its bank
account No. 317901010041048 in Union Bank of India. However,
Judgment Debtor in violation of order of the Court, operated the said
account and withdrawn the amount of Rs.8,77,834/-. Hence, it be
directed to redeposit the said amount.
3. It is submission of the judgment debtor that if it has not
committed any breach of order. It is ready to deposit remaining amount
of the decree. Hence, prayed to reject Notice of Mouton.
4. It is its specific contention vide Exh.6 that considering the
payment of Rs.7,84,725/- in the Court, it is liable to pay only an
amount of Rs.3,83,307/-. It is contention of decree holder vide
Chamber Summons that to satisfy the decree, it is essential to direct
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No. 1293 of 2020 3
judgment debtor to file the affidavit disclosing its assets which would be
required to be attached and sold in execution of decree.
5. The judgment debtor has replied Chamber Summons with
similar contention that decree holder is not entitled to recover of an
amount as stated in the decree. It is specific contention of the
Judgment debtor that the Hon’ble High Court of Punjab and Hariyana
vide order in second appeal No.RSA No.6127/2008 and RSA
No.6149/2008 preferred by both parties has modified the decree. The
Hon’ble High Court has directed the plaintiff/decree holder to give one
month notice to the judgment debtor and allow the defendant to take
back un-utilized spare of value of Rs.4,45,000/-, failure of which
judgment debtor is entitled to withhold equivalent amount from the
money decree. Therefore, the decree-holder is not entitled to recover
an amount as stated in the execution application. Hence, prayed to
reject the Notice of Motion and Chamber Summons.
6. It is specific submission of the Ld.advocate for the decree
holder that judgment debtor has wrongly calculated amount of decree.
Considering the modification of the decree took place as per the order
of Additional District Judge at Panipat and order of Hon’ble High Court
of Punjab and Hariyana till 22.08.2023 the judgment debtor is liable to
pay an amount of Rs.4,61,118/-. He also filed calculation prepared by
him at Exh. 7
7. On the contrary,it is submission of the Ld. advocate for the
judgment debtor that Hon’ble High Court of Punjab and Hariyana has
observed that the plaintiff is bound to give notice to the defendant to
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No. 1293 of 2020 4
take that unutilized spare of Rs.4,45,000/- within a month of order. The
plaintiff has not given such notice. Therefore, judgment
debtor/defendant is entitled to reduce an amount of Rs.4,25,000/- from
the principal amount of the decree. Considering the observation of the
Hon’ble High Court of Panjab and Hariyana, the Judgment debtor is
liable to pay an amount of Rs.3,83,307/-. Hence, prayed to direct
decree holder to accept the amount of Rs.3,83,307/- as full and final
satisfaction of the decree.
8. It is admitted fact that the Civil Suit No. 313 of 2014
instituted by the plaintiff was decreed on 03.07.2015 by Judge of Junior
Division, Panipat (in short ‘The Court of First Instance’) of which the
present execution application filed by the plaintiff. Thereafter, the
appeals were preferred by the plaintiff and defendant before Additional
District Judge of Panipat (in short’ First Appellate Court) vide Civil
Appeal No. 6/2018 and 15/2018. Both appeals are disposed by the
Additional District Judge, Panipat vide its judgment dated 24.07.2018.
The Additional District Judge confirmed the decree of the Court of First
Instance with modification and directed the defendant to pay interest at
the rate of 6% p.a. from the date of the suit to date of its realization.
9. The First Appellate Court confirmed the amount of decree
declared by the Court of First Instance. Thereafter, second appeals were
preferred before the Hon’ble Punjab and Hariyana Court vide RSA
No.6127/2018 and RSA No.6149 of 2018. The Hon’ble High Court of
Punjab and Hariyana vide its decision dated 23.03.2023 confirmed
decree passed by First Appellant Court Consequently the principal
amount of decree declared by the Court of First Instance and confirmed
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by the First Appellant Court to with interest as aforesaid, is made
absolute by the Hon’ble High Court the Punjab and Hariyana. However,
the Hon’ble High Court of Punjab and Hariyana directed the plaintiff to
issue notice of one month to the defendant to take that unutilized spare
of value of Rs. 4,45,000/- failing of which the defendants were declared
to be entitled to withhold an equivalent amount from the money decree.
In such case there is no dispute that the decree passed by the Court of
First Instance and modified by the First Appellate Court has attained
finality vide judgment of Hon’ble High Court of the Punjab and
Hariyana Court.
10. There is dispute as to the calculation of amount particularly
reduction of Rs. 4,45,000/- out of money decree which is declared by
the Hon’ble High Court of Punjab and Hariyana to be entitled by the
judgment debtor in case the decree holder does not give notice to the
judgment debtor to take back the unutilized spare. It is submission of
the Judgment Debtor an amount of Rs.4,45,000/- shall be deducted
from the principal amount of the decree passed by Court of First
Instance. Hence, it is essential to see whether an amount of
Rs.4,45,000/- declared to be entitled by the Judgment debtor needs to
be deducted from the principal amount of the decree.
11. It is submission of the Ld. advocate for the decree
holder/plaintiff that the suit is decreed with cost. Hence, judgment
debtor is liable to pay an amount of Rs.10,00,000/- with cost of
Rs.61,854/- and judgment debtor is liable to pay interest at the rate of
6% p.a from the date of the suit till its realization and whole amount of
the decree i.e. an amount of Rs. 10,61,854/-.
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12. On the other hand, it is contention of the Ld. advocate for
the judgment debtor that an amount of Rs. 4,45,000/- needs to be
deducted from the principal amount of the decree.
13. It is significant to note that the Court of First Instance has
decreed suit with cost. That the cost of proceeding before the Court of
first Instance is Rs.60,352/- . The First Appellate Court has directed
both parties to bear their own cost. The Hon’ble High Court of Punjab
and Hariyana has passed no order as to costs. It means only the Court of
First Instance directed that the plaintiff shall be entitled to the cost of
the suit. Therefore, the plaintiff is entitled for cost of Rs.60,352/- only
and not Rs. 61,854/-.
14. The next ground to challenge the amount of decree raised
by judgment debtor that an amount of Rs. 4,45,000/- shall be deducted
from principal amount of the decree. Hence, reference to the order of
Hon’ble High Court of Punjab and Hariyana is essential.
15. The Hon’ble High Court of Punjab and Hariyana Court in its
para No. 15 upheld judgment and decree passed by the Court of First
Instance which was upheld by Ld. First Appellant Court. The Hon’ble
High Court directed the decree holder/plaintiff shall send written offer
within a period of one month of order or judgment of the Hon’ble High
Court being uploaded to Court’s website to the defendant to take back
unutilised spare of value of Rs. 4,45,000/- failing of which with the
appellant i.e. defendant shall be entitled to withhold or adjust the
equivalent amount from the money decree. Considering the observation
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of the Hon’ble High Court of Punjab and Hariyana, it is apt to mention
that the Hon’ble High Court of Punjab and Hariyana has not modified
the money decree so far as the principal amount and rate of the interest
levied by the Court of below. It is directed by the Hon’ble High Court of
Punjab and Hariyana and the plaintiff has to send written offer to the
defendant within one month of the order to take back unutilised spare
of value of Rs. 4,45,000/-.
16. If observation of the Hon’ble High Court of Punjab and
Hariyana in para No.15 of its judgment are taken into consideration it
does not contemplate that an amount of Rs. 4,45000/- shall be
deducted or defendant will entitle to withhold or adjust such amount
from principal amount of the decree i.e. Rs. 10Lakh. The Hon’ble High
Court has given one month period to the plaintiff/decree holder to send
written offer. It means the Hon’ble High Court has considered the value
of price of unutilized spare lying with the plaintiff upto Rs.4,45,000/-
on the date of its order. There is no express order of the Hon’ble High
Court that judgment debtor would entitle to withhold an amount of Rs.
4,45,000/- from the principal amount. In other words, it can be said
that if Hon’ble High Court was of opinion that the judgment debtor
would entitle to withhold the amount of Rs. 4,45,000/- from the
principal amount of the decree then the Hon’ble High Court would have
given such direction or have declared judgment debtor would entitle to
recover such sum at the rate of interest or shall entitle to set of such
amount with principal amount of the decree. Therefore, it is held that
the judgment debtor is not entitled to withhold an amount of Rs.
4,45,000/- or adjust such amount from principal amount.
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17. There is no dispute that order vide Exh.5 dated 28.06.2023,
it is directed that an amount of Rs.7,84,725/- deposited by the
judgment debtor in the Court shall be paid to the decree holder. The
original decree was passed on 24.07.2018. The First Appellate Court
directed that principal amount of decree shall run at the rate of interest
of 6% p.a. from the date of the suit to the date of its realization. The
Suit was instituted on 05.07.2013. Therefore, to calculate the interest
the anniversary of fifth February needs to be taken into consideration.
Thus, till 05.07.2023 the judgment debtor would liable to pay an
amount of Rs.16,25,000/-. As Rs.7,84,725/- which were deposited in
the Court prior before the order below Exh.5 dated 28.06.23 were not
paid to the decree holder. The judgment debtor has opposed the
application at Exh.5 moved by the decree holder to withdraw the said
amount. Therefore, it cannot be said that an amount of Rs.7,84,725/-
was paid to decree holder when it was deposited in the Court.
Consequently, it is held that an amount of Rs. 7,84,725/- is paid to the
decree holder on 05.07.2023 vide order below Exh. 5 dated 28.06.2023.
18. As the Judgment debtor has to pay interest on principal
amount of decree with interest at the rate of 6% p.a. till entire amount
is realised. If after payment of Rs. 7,84,725/- it is directed that the
Judgment debtor shall pay interest on remaining amount due then it
will tentamount to levy the interest by compounding amount of interest
If it is so as per submission of Judgment Debtor then in a case the
judgment debtor had paid marginal amount e.g. Rs.1 Lakh then he
ought to have pay interest on remaining amount due on 28.06.2023 i.e.
on Rs. 16,25,000/- which is not contemplated under decree and rule.
Therefore, thus, on 05.07.2023 judgment debtor was liable to pay
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No. 1293 of 2020 9
Rs.16,25,000/-. Today is 4th September 2023. Considering the further
interest on principal amount of Rs. 10 Lakh for the period of
05.07.2023 to 05.09.2013 the decree holder would entitle to receive an
amount of Rs. 10,000/-. Thus, the decree holder is entitled to recover
an amount of Rs.8,50,275/- on 05.09.2023 after deducting
Rs.7,84,725/- paid vide Exh. 5.
19. It is undisputed fact that the plaintiff has not given written
offer to take back its unutilized spare in view of the direction of Hon’ble
High Court of Punjab and Hariyana. Therefore, the judgment debtor
would entitle to withhold or adjust an amount of Rs.4,45,000/- out of
an amount of Rs.8,50,275/-. Thus on 05.09.2023 the decree holder is
entitled to recover an amount of Rs.4,05,275/-.
20. Vide this Notice of Motion, the decree holder sought
direction that judgment debtor shall redeposite an amount of Rs.
8,77,834/- which was withdrawn by the judgment debtor in violation of
the order of this Court passed on 16.03.2020 and vide Chamber
Summons. It is also prayed that the defendant be directed to declare his
assets. So far as the relief vide Notice of Motion is concerned the
plaintiff/decree holder has not moved this Notice of Motion to punish
the judgment debtor. It is submission of the Ld advocate for the
Judgment Debtor that judgment debtor is willing to pay an amount as
per decree. In such circumstance,the Notice of Motion became
infractuous. However, as it is fact that judgment debtor has not satisfied
decree holder. It is essential to direct him to disclose its assets and file
an affidavit to that effect. So far as the application at Exh. 6 is
concerned the judgment debtor failed to show that it is liable to pay an
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No. 1293 of 2020 10
amount of Rs.3,83,307/-. Hence, the application is deserves to be
rejected. In the result, following order is passed :
ORDER
1. The judgment debtor is ordered to pay an amount of
Rs.4,05,725/- (Rs. Four Lakh Five Thousand Seven Hundred
Twenty Five Only)
2. The judgment debtor to file an affidavit to declare its
movable and immovable assets.
3. Accordingly, Chamber Summons No. 597 of 2020 is made
absolute in terms of prayer clause (a).
4. Accordingly, Notice of Motion No. 1293 of 2020 and
Application (Exh. 6) are rejected.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:04.09.2023 Greater Bombay (CR 59)
Declared on : 04.09.2023
Dictated on : 04.09.2023
Transcribed on : 12.09.2023
Checked on : 18.09.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.10.2023 at 11.00 -a.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 04.09.2023
Order signed by P.O. on 18.09.2023
order uploaded on 11.10.2023
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