Court No. - 36
Case :- WRIT - C No. - 56628 of 2013 Petitioner :- Union Bank Of India Respondent :- Shyam Narayan Pandey And 2 Others Counsel for Petitioner :- Sanjiv Singh Counsel for Respondent :- Manoj Singh Rathaur,Anand Kumar Pandey,Rajesh Tripathi,S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
Sri Anand Kumar Pandey learned counsel has put in appearance on behalf of respondent no.1, the decree holder in Original Suit No.158 of 1992 (Shyam Narayan Pandey Vs. D.P. Rai & others) which has been decreed vide judgement and order dated 12.11.1998. The present petition arises out of an execution case No.27 of 1999 (Shyam Narayan Pandey Vs. Union Bank of India & others).
The said suit has been filed by the respondent no.1 for the relief of declaration and damages against two defendants namely the petitioner-bank and the respondent no.2, through its partner i.e. M/s United Automobiles Lucknow road. As per the plaint averments, the plaintiff had contended that he had applied for loan for purchase of Auto Rickshaw from the defendant no.3/petitioner- bank to the tune of Rs.63,000/- which was duly sanctioned after due enquiry. The plaintiff/respondent no.1 had collected Rs.21,213.75/- as margin money and had deposited with the defendant no.3-bank and a draft/cheque had been handed over to the defendants Ist set i.e. the dealer of the loan money to the tune of Rs.63,000/-plus margin money of Rs.21,213.75/-. However, despite getting the said money through draft/cheque issued by the bank, the defendant Ist set did not deliver the vehicle i.e. Auto Rickshaw to the plaintiff.
A decree of declaration was, thus, sought against the defendant no.3 i.e. bank that they were liable to recover the loan money of Rs.63,000/- from the dealer i.e. the defendant Ist set and to declare the dealer liable to pay interest on the said loan money, also.
A further relief was sought for a direction to the defendants to refund margin money to the tune of Rs.21,213.75/- to the plaintiff with interest at the bank rate. Further the relief of damages to the tune of Rs.17,000/-was sought for the economical, mental and social loss caused to the plaintiff. Further a relief of damages for daily loss of income to the tune of Rs.200/- per day was also sought.
The said suit has been partly decreed vide judgment and order dated 12.11.1998. The operative portion of the decree is relevant to be reproduced herein as under:-
oknh dk okn vkaf'kd :i ls lO;; fd;k tkrk gS rFkk ;g ?kksf"kr fd;k tkrk gSA fd izfroknh ua&3 }kjk tks _.k eqofyax 63000@& :i;s oknh dks okLrs [kjhnus Fkzh Oghyj vksVks fjD'kk Lohd`r djds MªIV izfroknh izFke i{k dks fn;k x;k gS mldks e; lwn nsus dh ftEesnkjh izfroknh izFke i{k ij gS vkSj mDr _.k e; lwn vnk;xh dh dksbZ ftEesnkjh oknh dh ugh gS rFkk ;oknh eqofyx 21213&75 :i;s ekftZu euh dh ;ljdke ,oa 5000@& :i;s vkfFkZd uqdlku ,oa nSfud vk; dh {kfriwfrZ fnukad&13&7&91 ls bejkstk nkok 50@&:i;s izfrfnu ds fglkc ls glc rc rd tc rd oknh dks lEiw.kZ {kfriwfrZ e; C;kt ugh izkIr gksrk] ikus dk vf/kdkjh gSA 'ks"k vuqrks"k ds ckcr nkok oknh [kaf.Mr fd;k tkrk gSA A perusal of the operative portion of the decree indicates that the suit was decreed in favour of the plaintiff with the declaration that the defendant no.3 shall recover the loan amount of Rs.63,000/- for the purchase of three wheeler i.e. Auto Rickshaw from defendant no.1 alongwith interest and the plaintiff shall not be liable to repay the said loan. Further the plaintiff would be entitled to recover of margin money with the damages to the tune of Rs.5,000/- and Rs.50/- for damages and loss of daily income from the date of decree till the date of payment alongwith interest.
Rest of the relief sought by the plaintiff were denied. Further perusal of the finding returned by the trial court while passing the judgement and decree dated 12.11.1998, it is evident that the trial court has found that the defendant Ist set i.e. the defendant no.1 did not adduce any evidence and further that the said defendant did not deliver the vehicle as per the quotation to the plaintiff despite the fact that the loan amount plus margin money was provided to the defendant no.1 by the defendant No.3/bank. It was, thus, concluded that the plaintiff would not be liable to repay the loan. So far as the damages is concerned, though the trial court has not specified in the operative porition of the decree as to which of the defendants would be liable to pay damages, but from a careful reading of the findings returned by the trial court as noted herein above and the discussion made by the trial court while deciding the issue no.1, 2 and 7, there remains no room for doubt that the defendant no.3/bank cannot be said to be liable to pay damages for any loss caused to the plaintiff, in as much as, the defendant-bank had duly sanctioned the loan and paid the loan money with the margin money (deposited by the plaintiff) by a banker's cheque in the name of defendant Ist set i.e. the dealer. For any loss caused to the plaintiff for non delivery of vehicle i.e. Auto Rickshaw only defendant Ist set can only be held liable.
It appears that at an earlier point of time, in Civil Revision No.06 of 2003, matter was remitted back vide order dated 18.04.2007 with the categorical direction to the executing court to specify as to against which of the defendants, the decree was to be executed.
It is also come up on record that the bank has got the recovery of loan amount from the dealer to the tune of Rs.63,000/- with interest in an execution case filed pursuant to a decree dated 20.03.1995 passed in Original Suit No.79 of 1994, which was filed by the bank for recovery of the aforesaid loan money, against both the dealer and the borrower.
Having perused the entire records, this Court of the definite opinion that the decree dated 12.11.1998 for damages as granted by the trial court can be executed only against the dealer i.e. defendants Ist set. The executing court has erred in holding that the decree is joint and several and it can also be executed against the bank only or after executing of the decree, the bank would be at liberty to recover the said amount from the dealer.
At this stage, a pointed query has been made by this Court from the learned counsel for the respondent no.1 as to whether the decree dated 12.11.1998 is sought to be executed against defendant Ist set or not, the answer is that the defendant Ist set is party to the execution case, but he has never appeared before the executing court. It is, thus, clear that the defendant Ist set is avoiding the execution of the decree. In any case, the conclusion drawn by the executing court that the decree for payment of damages is also executable against the defendant no.3/petitioner, is wholly erroneous.
In the totality of the facts and circumstances of the instant case, this Court finds that the order dated 26.08.2011 rejecting the objection 4Ga-2 filed by the defendant no.3/petitioner/bank under Order 21 Rule 58 read with Section 151 CPC suffers from patent illegality. The same is liable to be set aside. The objection of the defendant no.3 bank is liable to be allowed.
The trial court is, however, directed to proceed with the Execution Case no.27 of 1999 and to see that the decree is executed against defendant Ist set within the shortest possible time after giving due notice and opportunity to him to appear before it. Because of the reason that the present petition remains pending for more than five years, a fresh notice is required to be issued to the defendant Ist set by the executing court fixing a date before it and an endeavor shall be made to decide the execution case,4 as early as possible, preferably within a period of four months from the date of submission of certified copy of this order.
It goes without saying that no unnecessary adjournment shall be granted to any of the parties.
Subject the above observations and directions, the present petition is allowed.
Order Date :- 23.1.2019 Himanshu