Industrial Credit and Development Syndicate Ltd. and others vs Khanderao Ramrao Shivalkar and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 189

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Industrial Credit Development
Syndicate Limited others..... Plaintiffs.
Versus
Khanderao Ramrao Shivalkar others ..... Defendants.
Chamber Summons No. 1758 of 1997 in Suit No. 771 of 1976, decided on 11-3-1999.
Advocates appeared :
Satish Shetye with Nitin Vhatkar and T.N. Tripathi i/b. S. Ashwinkumar Com- pany, for plaintiffs-assignees.
Erach H. Kotwal with Rajiv J. Deokar and N.P. Wagle i/b. D.B. Savant, for defendants.

Headnote:Section 50, Order XXI, Rules 1 and 2-Excess; paid amount-Refund of-Application of execution barred by limitation-Issuance of chamber summons-Refund-Relief cannot be allowed-Payment certified in courts under Order XXI, Rules 1 and 2.- The execution application is barred by limitation, the same deserves to be dismissed and is dismissed accordingly. I have also dealt with the issue of complete satisfaction of the decree as that would conclude the entire issue at this stage. In the Chamber Summons, the defendants have prayed for direction to refund the amount of Rs. 7,56,000 / - as according to them. They have made excess payment or in the alternative they have prayed that the decree may be marked as fully satisfied and that the decree holder may be ordered to refund the sum of Rs. 4,35,984 to the defendants being paid in excess over the above the decretal amount. As rightly submitted by Shri Shetye, the learned counsel for the plaintiffs assignee, I cannot decide that issue in this Chamber Summons as will have no jurisdiction to entertain any refund claim in the execution proceedings, I therefore reject the defendants prayer of refund of the allegedly excess amount paid as contained in prayer clause (b) of the Chamber Summons. I, however, declare that the consent decree has been fully satisfied and it be marked as having been fully satisfied. The Chamber Summons is made absolute in terms of prayer clause (a), (b) and (c) to the extent that the decree has been fully satisfied.
Order XXI, Rule 2(1)-Consent decree-Defendants making payment of instalments agreed to be paid under decree towards complete satisfaction of the decree-Plaintiff assignee, however, disputing two payments - There was clear admission by plaintiffs of the receipt of said two payments-Denial of receipt of such payments by plaintiffs assignee merely because there was no formal recording of said payment before the Court would not only be illegal but also immoral-Payments as made will have to, be adjusted towards decretal amount and towards satisfaction of the claim-Claim for refund not entertained in execution proceedings-No jurisdiction to decide the issue regarding refund in the chamber summons in question.
Article 36-Consent decreei5clault by judgment debt in paying decretal amount as per decree providing payment in instalments-Default -Consent decree became executable on 30.4.1980-Execution application filed by Plaintiffs un 7.4.1995 was beyond the statutory period of 12 years-No notice under Order XXI, Rule 2 of the Civil Procedure Code or under Rule 316 of the Bombay High Court (O.S.) Rules, 1980 issued-Execution application was clearly barred by Limitation-The so called stay orders obtained by the plaintiffs assignees themselves and/or their nominees inter se cannot defeat the right accused to the defendants-If the plaintiffs assignees and their nominees file certain proceedings and obtain certain stay orders they cannot take advantage of such orders and therefore the aforesaid period cannot be excluded from the limitation period prescribed for execution of the decree.

JUDGMENT - R.J. KOCHAR, J.:---In the present Chamber Summons, which is taken out by the defendants following main reliefs are prayed for:-

"That this Honourable Court be pleased to discharge the Court Receiver, High Court, Mumbai, who has been appointed Receiver of the properties bearing Plot No. 159 and 169 more particularly described in Exhibit "E" to the plaint since the Consent Decree dated 9-1-80 have become unexecutable being barred by law of limitation and that the Court Receiver be directed to hand over possession of the said properties to the defendants after removal of all the encroachment and illegal construction on the said properties;

(b) That the plaintiffs' assignees be directed to refund to the defendants the amount of Rs. 7,56,000/- or in the alternative, the Consent Decree dated 9-1-80 may be marked fully satisfied and the Decree holder may be ordered to refund a sum of Rs.4,35,984/- to the defendants being the amount paid in excess over and above of the decretal dues;

(c) That this Honourable Court be pleased to direct the plaintiffs' assignees' Nominee to hand over to the defendants the title deeds of the properties bearing Plot No. 159 and 169 more particularly described in Exh."E" to the plaint."

2. In support of the Chamber Summons, the defendants have filed an affidavit in support of the same giving the full history of the case and details from beginning upto to date. Since presently we are not concerned with the past history, which is already on record, I would begin from the date on which the parties have filed the consent terms in the above suit and settled their dispute. The consent terms were filed on 9th January 1980 and consent decree was passed wherein the defendants were made liable to make payment by instalments of the decretal amount of Rs. 19,56,215,35. The parties had agreed to the instalments as under:-

i) Rs. 4 lakhs forthwith:

ii) Rs. 4,50,000/- on 30/4/80:

iii) Rs. 5 lakhs on 30/12/1980:

iv) remaining entire balance together with interest payable on 30/6 1981.

It was also provided that in the event, the defendants committing any one default in payment of the instalment then the entire decretal amount as prayed for in prayer (a) of the plaint or the balance thereof then remaining due, shall become payable forthwith and the plaintiffs shall be entitled to and be at liberty to execute the decree against the defendants. It was also provided that in case of such default, the Court Receiver, High Court, Mumbai shall automatically stand appointed as the Receiver of the suit properties. It is the case of the defendants that they had paid the first instalment of Rs. 4 lakhs forthwith as also the second instalment of Rs. 4,50,000/- and the third one of Rs. 5 lakhs on 30th December 1980. Since neither the defendants nor the surety holders paid the amounts as per the consent decree, there was default in payment of the said instalment. Consequently the consent decree became executable on 30th April 1980 and the entire decretal amount then remaining due became payable forthwith. However, the surety paid the sum of Rs. 4,50,000/- on or about 28th May 1980. As a result of the aforesaid default, the plaintiffs filed an execution application on 7th April 1995. Shri Kotwal, the learned Counsel for the defendants has therefore submitted that the aforesaid execution application which is filed after a lapse of 12 years is not maintainable and therefore the execution application should be dismissed. The defendants have also prayed that they have fully satisfied the entire decree and it should be recorded that the decree has been satisfied. Not only that, the defendants have sought refund of an amount of Rs. 7,56,000/- from the plaintiffs' assignee as they have made the payment in excess to that extent.

3. As against the said contention of the defendants, the plaintiffs' assignees have submitted that there is no delay in filing of the execution application and they are entitled to exclusion of a period of 1544 days on

Click Here to Read the rest of this document