1. Present Civil Revision Application under section 115 of th4 Code of Civil Procedure has been preferred by the petitioner - original respondent / judgement debtor to quash and set aside the impugned order dtd.26/7/2011 passed by the learned Small Causes Court, Ahmedabad below application Ex.35 in Execution Petition No.333 of 2008, by which the learned executing court has dismissed the said application Ex.35 submitted by the petitioner - judgement debtor for recording the adjustment under Order 21 Rule 2(a) of the Code of Civil Procedure.
2. That the respondent herein – original appellant initiated proceedings before the learned Small Causes Court, Ahmedabad against the petitioner Corporation under the provisions of the Bombay Provincial Municipal Corporations Act challenging rateable value fixed by the petitioner with respect to the premises in question for the Assessment Year 1997-98. It appears that the learned Small Causes Court partly allowed the said Municipal Valuation Appeal No.3349 of 1998 and fixed GRV of premises at Rs.62,000/- for the Assessment Year 1997-
98. The learned appellate court also further directed to give effect of the judgement within a period of one month and in case of excess payment of tax by the original appellant - Electricity Company, the Corporation was directed to refund the same to the Electricity Company. That the said Judgement and Order came to be passed by the learned Small Causes Court on 14/10/2003. It is required to be noted that the said Judgement and Order passed by the learned appellate court has attained finality, as the same is not challenged by the petitioner Corporation. That thereafter as the amount of tax already recovered was not refunded as per the Judgement and Order passed by the learned appellate court in MVA No.3349 of 1998, the respondent herein – original appellant preferred Execution Petition No.333 of 2008 and after giving opportunity to the petitioner, the learned executing Court passed an order directing to issue Jangam Warrant of Rs.5,22,360/- along with interest at the rate of 15% per annum from 4/5/1998 till realisation and also further directed to pay Rs.5000/- by way of cost to the judgement creditor. It appears that being aggrieved by and dissatisfied with the order dtd.20/10/2010 passed by the learned executing court passed in Execution Petition No.333 of 2008, petitioner preferred Civil Revision Application No. 180 of 2010 before this Court and the learned Single Judge of this Court rejected the said Civil Revision Application. While rejecting the said Civil Revision Application the learned Single Judge also recorded statement made by the learned advocate appearing on behalf of the petitioner that they will move necessary application before the learned trial court pointing out adjustment of the amount by giving credit in the subsequent bills and the learned Single Judge observed that as and when such an application is made, the same be considered in accordance with law and on merits and after affording an opportunity to both the sides. Thus, as such the said order passed by the learned executing court below application Ex.1 in directing to issue Jangam Warrant of Rs.5,22,360/- along with interest at the rate of 15% per annum from 4/5/1998 till realisation, came to be confirmed by the learned Single Judge. It appears that thereafter the petitioner submitted application Ex.35 in the Execution Petition submitting that against the demand of Rs.5,22,360/- a huge amount of tax is still due against the respondent and therefore, instead of giving refund, the Corporation has already given credit of the same against due taxes. The petitioner also produced relevant statements of amount of tax due and payable by the respondent and giving credit of the same in the subsequent bills. Therefore, it was submitted that as such nothing is due and payable / refunded pursuant to the judgement and order passed by the learned appellate court in MVA No.3349 of 1998.
3. That the learned executing Court did not accept the same by holding that judgement debtor cannot adjust the credit amount towards taxes which is disputed and that such an adjustment is not as per the provisions of Order 21 Rule 2(2) of the Code of Civil Procedure. Consequently the learned executing court rejected the said application Ex.35. Being aggrieved by and dissatisfied with the impugned order passed by the learned Small Causes Court, Ahmedabad (executing Court) dtd.26/7/2011 below application Ex.35 in Execution Petition No.333 of 2008, petitioner - judgement debtor has preferred the present Civil Revision Application under section 115 of the Code of Civil Procedure.
4. Mr.Asim Pandya, learned advocate appearing on behalf of the petitioner - judgement debtor has vehemently submitted that as such pursuant to the Judgement and Order passed by the learned Small Causes Court in MVA No.3349 of 1998 and on fixing gross rateable value at Rs.62,000, respondent – judgement creditor was entitled to refund of Rs.5,22,360/- and as per the Judgement and Order passed by the learned Small Causes Court with interest and Rs.5000/- towards costs, the judgement creditor was entitled to Rs.15,04,101/-. It is submitted that instead of refunding the said amount, the same has been adjusted and/or given credit in the subsequent bills. It is submitted that as such taxes to be recovered from the respondent comes to Rs.2,15,388/-. It is further submitted that as per the new formula tax payable by the respondent comes to Rs.68,73,233 and interest thereon comes to Rs.11,24,845 and therefore, total payable amount comes to Rs.79,98,078/-. It is submitted that total amount paid by the respondent comes to Rs.43,00,575/-, (which includes the amount of Rs.12,77,846 deposited during the period from 1997-98 to 2000-2001 including the disputed amount) and after giving credit of Rs.43,00,575 against total dues of Rs.79,98,078/-, Rs.36,97,503. remains due and payable by the petitioner out of which the Corporation has reversed the amount of extra demand and interest to the tune of Rs.10,53,563/- and therefore, total sum of Rs.27,80,949/- is due and payable as on 16/3/2011. It is submitted that when the amount which was due and payable under the Judgement and Award passed by the learned Small Causes Court in MVA No.3349 of 1998 was already given credit in the subsequent bills, the learned executing Court ought to have certified the said amount of adjustment and ought to have held that the respondent is not entitled to any further amount under the order passed by the learned appellate court and/or the petitioner is not required to refund any further amount under the Judgement and Order passed by the learned appellate court which is sought to be executed.
5. Mr.Asim Pandya, learned advocate appearing on behalf of the petitioner has further submitted that when the adjustment was reflected in the subsequent bills issued by the Corporation and it being a public document, the learned executing court ought to have certified the payment / credit while giving adjustment under Order 21 Rule 2(2)(c) of the Code of Civil Procedure.
6. Mr.Asim Pandya, learned advocate appearing on behalf of the petitioner, relying upon section 413 of the BPMC Act and other relevant rules has submitted that under the new provisions of the BPMC Act, in case of any decision in Municipal Tax Bill excess payment is not required to be refunded but it is to be adjusted in the subsequent bill. Therefore, it is submitted that as such relying on the same and determining the GRV at Rs.62,000, the amount already paid by the respondent which was found to be in excess was not required to be refunded but it was required to be adjusted in the subsequent bill only. Therefore, the Corporation is justified in adjusting and/or giving credit of the excess payment in the subsequent bills. Therefore, it is requested to allow the present Civil Revision Application and consequently allow application Ex.35 and to hold that the respondent is not entitled to any amount of refund as per the judgement and order passed by the learned Small Causes Court in MVA No.3349 of 1998, which is sought to be executed now.
7. Present Civil Revision Application is opposed by Mr.Dipak Dave, learned advocate appearing on behalf of the respondent Electricity Company. It is submitted that as such the earlier order passed by the learned executing court directing to issue Jangam Warrant against the petitioner is confirmed by this Court. It is further submitted that even the adjustment of the amount due and payable under the judgement and order passed by the learned Small Causes Court, Ahmedabad in MVA No.3349 of 1998 in the subsequent bill and giving credit is absolutely illegal and as such contrary to the provisions of Order 21 Rule 2 of the Code of Civil Procedure. It is submitted that therefore the learned executing court has rightly not considered the same as adjustment and/or has rightly not certified the said adjustment towards satisfaction of the decree / order passed by the learned appellate court. It is submitted that as such the impugned order passed by the learned executing court is absolutely in consonance with the provisions of Order 21 Rule 2 of the Code of Civil Procedure which is not required to be interfered with by this Court in exercise of the powers under Section 115 of the Code of Civil Procedure.
8. Mr.Dipak Dave, learned advocate appearing on behalf of the respondent Electricity Company has submitted that even the amount of adjustment by the petitioner and giving credit in the subsequent bill is absolutely illegal and without even any intimation to the respondent. It is submitted that as such, as and when bills for the subsequent period are issued, the same are paid by the respondent. However, subsequently the Corporation has raised additional demand which is absolutely illegal and which is disputed by the respondent and even appeals challenging the same are also preferred and therefore, the Corporation could not have and ought not to have unilaterally credited and/or adjusted the said amount towards the liability of the respondent which is disputed one and that too without giving any opportunity to the respondent. It is submitted that as such the petitioner Corporation could not have adjusted the amount due and payable under the order passed by the learned appellate court with respect to the alleged dues which are disputed. It is submitted that if the petitioner Corporation is of the opinion that the amount which is adjusted towards the dues is due and payable by the respondent, in that case, after reversing the entry of credit in the subsequent bill, petitioner can recover the same if it is permissible. However, when the amount of tax is disputed, petitioner cannot adjust the same and give credit in the subsequent bill which has been disputed. Therefore, it is requested to dismiss the present Civil Revision Application.
9. Heard the learned advocates appearing on behalf of the respective parties at length.
10. At the outset, it is required to be noted that under the judgement and order passed by the learned Small Causes Court, Ahmedabad dtd.14/10/2003 in MVA No.3349 of 1998, as such the respondent – judgement creditor was entitled to refund of Rs.5,22,360/- which was found to be payment in excess and as per the Judgement and Order passed by the learned appellate court, the respondent was entitled to get the said amount with interest at the rate of 15% per annum from 4/5/1998 till realisation. Therefore, the respondent filed Execution Petition No.333 of 2008 before the learned Small Causes Court, Ahmedabad for recovery of the aforesaid amount and for Jangam Warrant of Rs.5,22,360/- along with interest at the rate of 15% per annum from 4/5/1998 till realisation. However, it was the case on behalf of the petitioner that the Corporation has already adjusted excess amount of tax paid by the respondent in the subsequent bills and the same is given credit in the subsequent bills and therefore, it was submitted that as such no amount is due and payable under the order which is sought to be executed. That the learned executing court did not accept the same and passed order dtd.20/10/2010 below Ex.1 in the said execution petition and directed to issue Jangam Warrant of Rs.5,22,360 along with interest at the rate of 15% per annum from 4/5/1998 till realisation. It appears that it is not in dispute that as such the order passed by the learned executing court below Ex.1 in Execution Petition No.333 of 1988 came to be confirmed by the learned Single Judge of this Court in Civil Revision Application No. 180 of 2010. However, subsequently, the petitioner submitted application Ex.35 claiming adjustment and/or certification of the adjustment of the amount credited in the subsequent bills and submitted that the said amount is already adjusted and/or given credit in the subsequent bills and requested to pass an order that the petitioner is not liable to refund considering the provisions of Order 21 Rule 1 and 2 of the Code of Civil Procedure. That by the impugned order the learned executing court has held that the judgement debtor has not followed procedure as per Order 21 Rule 2 of the Code of Civil Procedure and therefore, the Corporation is not entitled to adjust the amount which is given credit towards the dues to be paid by the judgement creditor. That the learned executing court has rightly held that the judgement creditor cannot adjust the credit amount towards taxes that too without following any procedure as required under Order 21 Rule 1 and 2 of the Code of Civil Procedure and without informing the court about such payment or adjustment and/or whether applying the Court to issue notice to the decree holder to show cause on date to be fixed by the Court, such payment or adjustment should not be recorded as certified. Keeping the said question open, assuming that giving credit of excess amount to be refunded in the subsequent bill and to consider it as adjustment, considering the same as a public document, the main question is whether the Corporation could have adjusted the said amount and/or given credit of the said amount of refund in the subsequent bill and/or towards the liability of the subsequent bill which is disputed by the respondent and for which no opportunity has been given to the respondent. It is required to be noted that as such the respondent has already made payment of the regular bills issued for the years 2001- 2002, 2002-2003, 2003-2004, 2004-2005, 2005-2006 and 2006-2007. However, it appears that subsequently by issuing a single special notice, the Corporation has unilaterally adjusted the amount to be refunded by giving credit in the subsequent bills unilaterally. However, it is required to be noted that the said subsequent demand has been challenged by the respondent by way of Municipal Valuation Appeal Nos.63 and 64 of 2009 and the said appeals are pending. Therefore, the Corporation was not justified in giving credit of the amount to be refunded while issuing special notice for the years 2001- 2002 to 2006-2007, which has been disputed by the respondent and that too without informing the respondent – judgement creditor. Under the circumstances, the Corporation is not justified in giving credit in the subsequent bill which has been disputed. Under the circumstances, and in the facts and circumstances of the case, the learned executing Court has not committed any error and/or illegality in not adjusting the said credit under Order 21 Rule 2 of he Code of Civil Procedure. If, still the petitioner Corporation is of the opinion that the petitioner is entitled to recover the entire amount under the special notice for the year 2001-2002 to 2006-2007, then it will still be open for the petitioner to reverse the entry of credit and to recover the said amount after following due procedure under the BPMC Act. However, the petitioner Corporation cannot be permitted to give credit in the subsequent bill which is disputed and pray for adjustment.
11. Now, so far as the contention on behalf of the petitioner, relying upon section 413 of the BPMC Act and rules that in case of a person succeeding in an appeal in Municipal Valuation Appeal, amount of tax paid in excess is not required to be refunded, but it should be given credit in the subsequent bills and therefore, the judgement creditor was not entitled to any refund on allowing MVA No.3349 of 1998 is concerned, it is required to be noted that as such, while passing judgement and order dtd.14/3/2003 passed by the learned Small Causes Court in MVA No.3349 of 1998, the learned Small Causes Court has specifically directed and passed an order that in case of excess payment of tax by the respondent, Corporation is directed to refund the same to the respondent – original appellant. As stated above, the said order has attained finality and as such the petitioner has accepted the said Judgement and Order. Therefore, now it is not open for the petitioner to make a grievance with respect to the same and/or it is not open for the petitioner to submit that even on allowing MVA No.3349 of 1998, the respondent was not entitled to refund and the same was required to be adjusted in the subsequent tax bills. As stated above, as such issuance of the Jamgam Warrant by the executing court below Ex.1 is already confirmed by the learned Single Judge of this Court in Civil Revision Application No. 180 of 2010. Under the circumstances and considering the facts and circumstances of the case, it cannot be said that the learned executing court has committed any error and/or illegality in rejecting the application Ex.35 which calls for interference of this Court in exercise of powers under section 115 of the Code of Civil Procedure.
12. Under the circumstances and in view of the above, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. No costs.
[M.R. SHAH, J.] rafik