Bombay High Court
The Assistant General Manager ... vs Dashrath Tukaram Suryawanshi on 9 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
11 SECOND APPEAL NO.349 OF 2019
THE ASSISTANT GENERAL MANAGER, SBI AND ANOTHER
VERSUS
DASHRATH TUKARAM SURYAWANSHI
...
Mr. S.R. Deshpande, Advocate for appellants
Mr. D.S. Chavan, Advocate for the sole respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 09th AUGUST, 2021
ORDER :
1 Present Second Appeal has been filed by the original defendants
challenging the Judgment and Decree passed by the First Appellate Court i.e.
District Judge-11, Aurangabad in Regular Civil Appeal No.289/2015,
whereby the appeal filed by the present respondent-original plaintiff came to
be allowed on 05.03.2019. The suit filed by the present respondent-original
plaintiff i.e. Special Civil Suit No.245/2013 was decreed and the present
appellants were directed to refund excess amount of Rs.11,32,538 to the
original plaintiff along with interest @ 6% per annum from the date of filing
suit till actual realisation of the amount.
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2 As aforesaid, the original plaintiff had filed the said suit for
recovery of the excess amount. In order to explain that excess amount, it was
contended that plaintiff was the guarantor for the loan taken by his son for
business. The son has offered his factory and residential house of the
plaintiff as co-lateral security. The son of the plaintiff was in difficulty and,
therefore, the amount had become stagnant. Notice was issued by the
defendants demanding amount of Rs.12,94,006.12ps. along with interest.
That notice was replied and it was requested that he be relieved as guarantor
to the loan. The respondents had filed proceedings before the Debt Recovery
Tribunal, Aurangabad for recovery of the amount. Accordingly, the Debt
Recovery Tribunal issued recovery certificate for an amount of
Rs.15,17,462/-. According to the plaintiff, the defendants sold the property
of the plaintiff and recovered amount of Rs.26,50,000/- against the due of
Rs.15,17,462/-. Thereafter, 'No Dues' certificate was issued. It is then stated
that the defendants had kept the matter before the Lok Adalat, wherein, the
compromise was filed. At that time, the plaintiff came to know that the
respondents have actually recovered amount of Rs.26,50,000/- as against the
amount of Rs.15,17,462. That means, the defendants had recovered excess
of Rs.11,32,538/-. Hence, the suit for recovery.
3 As aforesaid, the suit was dismissed by learned 4 th Joint Civil
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Judge Senior Division, Aurangabad on 25.07.2014 and the said decree was
challenged before the District Court. The appeal filed by the original plaintiff
came to be allowed. Hence, this Second Appeal by the original defendants.
4 Heard learned Advocate Mr. S.R. Deshpande for appellants and
learned Advocate Mr. D.S. Chavan for the sole respondent. In order to cut
short, it can be said that they have argued in support of their respective
contentions.
5 At the outset, it is to be noted that the Trial Judge has held that
the plaintiff has failed to prove that the defendants have recovered excess
amount and, therefore, the suit came to be dismissed. On the basis of the
same evidence, the First Appellate Court has reversed those findings and held
that the plaintiff has proved that the defendants have recovered excess
amount of Rs.11,32,538/-. This is, in fact, sufficient to admit the Second
Appeal. It is to be noted that the Debt Recovery Tribunal had issued the
recovery certificate on 24.09.2007, passed in Original Application
No.37/2006 and it appears that the recovery certificate disclosed that the
defendant Nos.1 to 5 therein (the plaintiff is one of the parties) do pay to the
applicant sum of Rs.14,09,892/-, with future interest @ 12% per annum,
with half yearly rests, on the above amount, from the date of the application
16.10.2006 till realisation of the said amount and also pay costs of
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Rs.17,570/-. It has been tried to be demonstrated by the appellants that the
First Appellate Court has misread the said certificate. Future interest from
16.10.2006 onwards @ 12% per annum with half yearly rests on sum of
Rs.14,99,892/- until realisation has been misread by the First Appellate
Court. It is stated that after due procedure the auction was conducted and
the defendants received amount of Rs.26,50,000/-. It is then required to be
noted, as to whether the interest, that was allowed to be charged by Debt
Recovery Tribunal, was paid by the plaintiff or not. In other words also, it
can be seen, as to whether from the price, that was fetched to the property in
auction, whether the defendants have recovered the principal amount as
along with the future interest amount that was granted by Debt Recovery
Tribunal to the defendants. In fact, it is also surprising that if the 'No Dues'
certificate was issued on 07.04.2012, then the matter could have been placed
before the Lok Adalat. Definitely, substantial questions of law are arising in
this case, requiring admission of the Second Appeal.
6 Second Appeal stands admitted. Following are the substantial
questions of law :
1 Whether the First Appellate Court was justified in
reversing the Decree passed by the learned Trial Judge ?
2 Whether the First Appellate Court has misread the
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recovery certificate issued by Debt Recovery Certificate,
comprising of not only the principal amount but future interest
on the due amount ?
3 Whether the plaintiff had proved that the defendants had
recovered excess amount of Rs.11,32,538/- ?
7 Issue notice to the respondent. Learned Advocate Mr. D.S.
Chavan waives notice for the sole respondent.
( Smt. Vibha Kankanwadi, J. )
agd
