Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC010045142018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1431 OF 2018
IN
SUIT NO. 9054 OF 1995 (Already Disposed Off)
(HC SUIT NO.8642 OF 1995)
Jankalyan Sahakari Bank Ltd ...Plaintiff.
V/s.
State Bank Of India ...Defendant.
Appearances:
Learned Adv. Mr. Omkar Warange for Plaintiff/Decree Holder.
Learned Adv. Mr. Atul I/b M/s. Utangale & Co. for defendant.
CORAM : HIS HONOUR JUDGE
SHRI SANDIPKUMAR C. MORE
(C.R.No.04)
DATED : 07th November, 2019.
: ORAL ORDER :
The defendant has taken out this Notice of Motion for modifying
the judgment and decree dated 20.02.2017 and to refund the excess
amount of Rs.50,942.25/ paid by it to plaintiff in the present suit.
2. According to the defendant, the principal amount under the said
decree was of Rs.38,90,623.50/ and the interest thereon till
24.01.2018 from 22.09.1993 was of Rs.56,60,057.75/. As such, the
total amount due from defendant was of Rs.95,50,681.25/. It is further
contended by the defendant that out of the aforesaid total amount, the
plaintiff bank had already received sum of Rs.57,11,000/ on
08.09.2017 as deposited by it under the order of Hon'ble High Court. As
such, the total outstanding in respect of the total recovery amount was
only of Rs.38,39,681.25/. However, the Registry did not allow the
defendant bank to pay the said amount, but insisted paying the
principal amount mentioned in decree i.e. Rs.38,90,623.50/. As such,
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NM 1431/18 in SU 9054/95 (D.O.) .. 2 .. Order
the defendant bank is now claiming that they paid the excess amount of
Rs.50,942.25/, which needs to be refunded to it.
3. On the contrary, advocate for plaintiff bank strongly opposed the
Notice of Motion by way of oral submissions and contended that the
plaintiff bank has already taken out Execution Application No.11/2019
for recovery of sum of Rs.1,15,59,460/ as per the aforesaid decree in
S.C. Suit No.9054/1995. Thus, even if the defendant bank is alleging
that certain amount in excess, but it can be adjusted towards the full
and final settlement of the decree in the aforesaid Execution
Application.
4. Heard rival submissions. Also perused the documents on record.
5. It appears that there is dispute between the parties about what
should be the amount under recovery, as per the decree in S.C. Suit
No.9054/1995. The defendant bank is claiming that they have paid an
excess amount of Rs.50,942.25/, but the plaintiff bank is claiming that
they are entitled for the amount of Rs.1,15,59,460/ from defendant
bank as on 31.07.2018. Admittedly, the decree dated 20.02.2017
indicates that Suit No.9054/1995 was decreed with costs and the
defendant bank was to pay sum of Rs.38,90,623.50/ alongwith interest
at the rate of 6% per annum from 22.09.1993 till realization of whole
amount. As such, the exact amount under recovery till date is yet to be
determined in the Execution Application itself, and at that time, the
alleged excess amount of Rs.50,942.25/ can be adjusted towards final
adjudication of the Execution Application. Hence, I do not see any
reason to allow this Notice of Motion at this juncture. Hence, I pass
following order.
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NM 1431/18 in SU 9054/95 (D.O.) .. 3 .. Order
: O R D E R :
1. The Notice of Motion No.1431 of 2019 stands dismissed.
2. Cost in cause.
3. Notice of Motion No.1431 of 2019 is disposed off
accordingly.
(SANDIPKUMAR C. MORE)
1st Additional Principal Judge,
(Court No.4)
Date : 07.11.2019. City Civil Court, Gr. Mumbai
Dictated on : 07.11.2019.
Transcribed on : 07.11.2019.
Signed on : 07.11.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.11.2019, at 5.46 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S.C. More
Court Room No.4
Date of Pronouncement of Judgment/order 07.11.2019
Judgment/order signed by P.O. on 07.11.2019
Judgment/order uploaded on 07.11.2019
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