B A Balaji vs A. Narayanaswamy
2021 Latest Caselaw 1951 AP

             HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                     Civil Revision Petition No.138 of 2021

ORDER:

In this C.R.P. filed under Section 115 CPC, the petitioner/judgment

debtor challenges the order dated 29.01.2021 in E.P.No.62/2018 in S.T.C.

No.34/2016 passed by the learned Senior Civil Judge, Puttur.

2. The factual matrix is thus:

(a) The respondent/decree holder filed S.T.C.No.34/2016 on the file of

learned Judicial First Class Magistrate, Puttur with the allegation that the

cheque for Rs.4.00 lakhs issued by the petitioner/judgment debtor was

bounced back. Subsequently there was a compromise between the parties

before Lok Adalat and accordingly, the Mandal Legal Services Committee,

Puttur passed an award dated 08.07.2017. As per which, the

respondent/decree holder/complainant agreed to receive Rs.4.00 lakhs from

the petitioner/judgment debtor/accused in full satisfaction of the case amount.

The terms would further recite that on the date of compromise the

petitioner/judgment debtor paid Rs.1.00 lakh and therefore, the award

stipulated that the petitioner/judgment debtor should pay the balance amount

of Rs.3.00 lakhs within 12 months i.e., on or before 07.07.2018, failing which

the complainant would be at liberty to recover the said amount of Rs.3.00

lakhs with interest @ 24% p.a. and costs through process of law.

(b) Subsequently the respondent/decree holder filed E.P.No.62/2018 on

the file of Senior Civil Judge, Puttur under Order XXI Rule 37 CPC with the

averments that the petitioner/judgment debtor failed to pay the balance

amount of Rs.3.00 lakhs and interest totaling to Rs.3,95,001/- and therefore,

the petitioner/judgment debtor may be committed to civil prison in execution

of the Lok Adalat award.

(c) Learned Senior Civil Judge issued notice and judgment debtor filed

counter, wherein his main plea is that subsequent to the Lok Adalat award, he

paid Rs.1.00 lakh to the respondent/decree holder by way of cash remittance

of Rs.50,000/- each on 21.07.2017 and 13.09.2017 into his bank account and

he also issued a cheque bearing No.015905 in favour of decree holder drawn

on Central Bank of India, Ekambarakuppam Branch for Rs.2.00 lakhs which

was bounced back and the decree holder filed C.C.No.194/2019 on the file of

Judicial First Class Magistrate, Puttur and the said case is pending. He thus

contended that suppressing the above facts the execution petition was filed,

which is not maintainable. The impugned order shows that the

petitioner/judgment debtor also questioned the pecuniary jurisdiction of the

Senior Civil Judge to entertain the E.P. According to him, the Junior Civil

Judge, Puttur has got jurisdiction.

(d) Be that it may, both parties adduced oral and documentary

evidence. Regarding the main contention of the petitioner/judgment debtor

that he paid Rs.1.00 lakh i.e., Rs.50,000/- each in tranches is concerned, the

executing Court in Para 7 of its order seems to have agreed with the reply of

the decree holder that those amounts were paid to the firm of the decree

holder and not in the name of the decree holder concerning to the Lok Adalat

award and ultimately held that the judgment debtor failed to prove that

Rs.1.00 lakh was paid in the name of decree holder. Accordingly, the Court

did not give any credit to the said amount of Rs.1.00 lakh. So far as the

C.C.No.194/2019 is concerned, the executing Court observed that the

concerned criminal Court would decide whether Rs.2.00 lakhs was paid by

the judgment debtor to decree holder or not and the pendency of the said case

has nothing to do with the execution petition. Ultimately the executing Court

allowed the E.P. and issued the arrest warrant.

Hence, the C.R.P.

3. Heard Sri T.Lakshminarayana, learned counsel for petitioner, and Sri

V.Sudhakar Reddy, learned counsel for the respondent.

4. The contention of the learned counsel for petitioner Sri

T.Lakshminarayana is that though the executing Court discussed about the

remission of Rs.1.00 lakh by the petitioner/judgment debtor, but, however not

considered the said aspect in a proper perspective and erroneously held that

since those amounts were paid in the name of decree holder's firm and not in

the personal name of the decree holder, those payments cannot be taken into

consideration. He would vehemently argue that the decree holder in fact

admitted the payment of Rs.1.00 lakh and that was the reason why he

accepted the cheque for balance amount of Rs.2.00 lakh and when it was

unfortunately bounced back, he filed a separate C.C.No.194/2019 on the file

of Additional Judicial First Class Magistrate, Puttur. He thus contended that

if really the payment of Rs.1.00 lakh (Rs.50,000/- each in two instalments)

was not made by the petitioner/judgment debtor and received by the decree

holder, he would not have received the cheque for balance amount of Rs.2.00

lakh. He thus argued that the decree holder's action of filing

C.C.No.194/2019 in respect of cheque for Rs.2.00 lakh itself is an indication

that the judgment debtor paid Rs.1.00 lakh towards part discharge of the

agreed amount of Rs.3.00 lakh under Lok Adalat award. He further argued

that the Senior Civil Judge's Court has no jurisdiction to entertain the E.P.

5. Per contra, learned counsel for the respondent/decree holder Sri

V.Sudhakar Reddy would argue that the payment of Rs.1.00 lakh (Rs.50,000/-

each) was in the name of firm in connection with separate transaction, but not

in the personal name of the decree holder and therefore, that amount cannot

be credited towards the amount due under Lok Adalat award. Since the

petitioner failed to pay the balance amount of Rs.3.00 lakhs as agreed under

the Lok Adalat award, the respondent/decree holder was constrained to file

E.P. and the executing Court rightly negatived the contention of the judgment

debtor.

6. I gave my anxious consideration to the above respective contentions.

The bone of contention is whether the amount of Rs.1.00 lakh (Rs.50,000/-

each on 21.07.2017 and 13.09.2017) paid by the judgment debtor in the name

of the respondent's firm is towards part payment of the amount covered by

the Lok Adalat award or in respect of a different transaction. It must be said,

the executing Court has not properly considered this aspect. In Para 7 of its

order, the learned Judge mentioned that part payment of Rs.1.00 lakh which

allegedly paid by the judgment debtor to the decree holder was in the name of

his firm and not directly to the decree holder in his name and as such the

decree holder denied receiving Rs.1.00 lakh towards award amount. It further

observed that the judgment debtor has not filed any record that he paid

Rs.1.00 lakh in the name of decree holder. With these observations the

executing Court concluded that the said fact was not proved by the decree

holder (sic judgment debtor).

It must be noted that the judgment debtor produced exhibits R1 & R2,

the payment particulars and other record. Without discussing the same and

considering the probability or improbability of the payment of Rs.1.00 lakh

towards award amount, the executing Court hastily held that the judgment

debtor did not file any record that he paid the amount of Rs.1.00 lakh in the

name of decree holder. It has forgotten that it is the contention of the

judgment debtor that an amount of Rs.1.00 lakh (Rs.50,000/- each) was paid

in connection with the Lok Adalat award only. Mere payment of the amount

in the account of decree holder's firm cannot be the sole ground to discard his

contention unless a plausible explanation was given by the decree holder that

the said amount does not relate to the Lok Adalat award. Therefore, in my

considered view it is apposite to remand the matter to the lower Court for

further hearing and pass an appropriate order.

7. Accordingly, this C.R.P. is allowed and the impugned order dated

29.01.2021 in E.P.No.62/2018 in S.T.C. No.34/2016 is set aside and the

matter is remitted back to the Senior Civil Judge, Puttur with a direction to

hear both parties and give a finding as to whether Rs.1.00 lakh paid by the

petitioner/judgment debtor towards part satisfaction of the Lok Adalat award

or in connection with a different transaction and then dispose of the E.P. in

accordance with law expeditiously, but not later than three (3) weeks from the

date of receipt of a copy of this order. No costs.

As a sequel, interlocutory applications pending, if any, shall stand closed.

_________________________ U.DURGA PRASAD RAO, J 14.06.2021 NOTE:-Issue CC by 15.06.2021 (b/o) MVA

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

Civil Revision Petition No.138 of 2021

14th June, 2021 MVA