Date : 23/03/2012 1. The short facts of the case appear to be that the suit was filed for recovery of the amount of Rs.19,94,437.33 before the Registrar's Board of Nominee by the petitioner Bank against the respondent herein being Lavad Case No.341/99. The aforesaid suit was filed on 21.07.1999. It appears that thereafter, consent purshis was submitted before the Registrar's Board of Nominee on 25.08.1999 signed by the plaintiff as well as the defendants and it was stated in the consent purshis that the amount of Rs.10 Lakhs has already been paid and the remaining amount of Rs.9,94,437.33 with the accrued interest from 26.06.1999 was to be paid in installment of Rs.75,000/- each. The learned Nominee based on the said consent purshis passed the award on 25.08.1999. It appears that thereafter as the amount was not paid by the defendants- respondents herein, the certificate was obtained for recovery and execution proceedings were initiated for execution of the consent decree. In the said execution proceedings, the petitioner claimed the interest from 26.06.1999 till 21.03.2000 being Rs.1,46,414 in addition to the principal amount of Rs.9,74,437.33 It appears that thereafter, the property of the defendants was put to auction and the money was realised of Rs.16,55,000/- which was deposited with the Court in the execution proceedings. After the property was auctioned, the application was made by the petitioner Bank to get the full amount by submitting the application Exh.110 which was resisted by the respondents-defendants. It appears that on behalf of the defendants, the application was submitted to the effect that there will be liability to pay the amount as per the consent decree of the principal amount and no interest would be payable and it was prayed that the balance be refunded to the defendants. The executing Court, after hearing both the sides, passed the impugned order. It is under these circumstances, the present revision petition before this Court.
2. Heard Mr.Kamdar for the petitioner and Mr.Anshin Desai for the respondents-defendants.
3. It appears from the recital clause of the consent purshis on the basis of which the Award has been passed by the learned Nominee that the liability to pay the principal amount of Rs.9,74,437.33 is admitted. However, the dispute appears to be for the interest. The Trial Court has held that no interest would be admissible. Whereas it is the contention of the petitioner that interest until the amount is realised would be admissible. If clause No.2 of the consent purshis is read as it is, it appears that as per the said clause, out of the amount of Rs.19,94,437.33, as the amount of Rs.10,00,000/- was already paid, the remaining amount of Rs.9,94,437.33 from the accrued interest from 26.06.1999 till the date of purshis, i.e. 25.08.1999 was to be paid in monthly installment of Rs.75,000/- each. Therefore, the interest admissible would be from 26.06.1999 till the date of the purshis, i.e., 25.08.1999 and further, the balance amount after payment of Rs.10,00,000/-, i.e. Rs.9,94,437.33. The rate of interest as per the Bank was 19% and therefore, the interest would be recoverable at the rate of 19% p.a. of Rs.9,94,437.33 from 26.06.1999 to 25.08.1999. As against the same, the Trial Court has not at all made any amount of interest admissible and therefore, it can be said that the Trial Court has committed error in exercising the jurisdiction for execution of the judgement and award passed by the learned nominee.
4. As observed by the Trial Court, the executing Court has no power to go beyond the decree but at the same time, the executing Court can examine the contents of the decree and enforce the decree. It was required for the executing court to literally interpret the clause of consent award and to calculate the interest accordingly. But, as has not been done, it can be said that as jurisdictional error committed by the Trial Court, which deserves to be interfered with in the revisional jurisdiction of this Court.
5. In view of the above, the impugned order passed by the Trial Court so far as it relates to not awarding the interest on Rs.9,74,437.33 from 26.06.1999 to 25.08.1999 is quashed and set aside. However, it is observed and clarified that no interest shall be admissible or recoverable by the petitioner Bank after 25.08.1999 on the principal amount of Rs.9,74,437.33. Consequently, the Trial Court is directed to calculate the amount and out of the balance available, the amount of interest shall be paid to the petitioner Bank and the remaining amount shall be paid to the respondents-defendants. The Trial Court is directed to complete the exercise within a period of 3 months from the receipt of the order of this Court and shall pass further effective order for apportionment and payment of the amount to the respective parties.
6. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs.
rafik [M.R. SHAH, J.]