Bombay High Court
Tulsi Agro Industries, Through ... vs M/S Raghunath Agrotech Pvt. Ltd., ... on 12 January, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1789/2020
Tulsi Agro Industries,
A registered Partnership Firm,
through its Constituted Attorney,
Satyanarayan Ramesh Bhattad,
Shegaon-Khamgaon Road, At Post
Savarna, Tq. Shegaon, Dist. Buldana .....PETITIONER
...V E R S U S...
M/s. Raghunath Agrotech Pvt. Ltd.
A company registered under the
Companies Act, through its
director Rajeevkumar Mittal
s/o Raghunath Mittal, aged 49 years,
Business, National Highway No.7,
Adilabad, Tq. Dist. Adilabad (AP) ...RESPONDENT
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Mr. B. N. Mohta, Advocate for appellant.
Mr. S. Saoji, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 12.01.2021
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties. Heard Mr. Mohta,
learned counsel for petitioner and Mr. Saoji, learned counsel for
respondent.
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2. The respondent herein filed a suit in the Court of
learned Civil Judge Senior Division, Adilabad. The said was
registered as O.S. No.68/2011 for recovery of amount of
Rs.1,49,045/-. The present petitioner, in spite of service of
summons, did not appear and, therefore, Adilabad Court
proceeded ex parte against the present petitioner. The learned
Civil Judge Senior Division, Adilabad decided the suit on
19.12.2013, which came before the said Court for final hearing
and decreed the suit for Rs.1,49,045/- along with interest at the
rate of 18% per annum from the date of the suit till the date of
decree.
3. Undisputedly, the respondent got transferred the
decree from Adilabad at Shegaon since the petitioner is having
properties within the jurisdiction of Shegaon Court and the said
was registered as Regular Darkhast No. 2/2017.
4. In the year 2011, petitioner also filed a suit against the
respondent at Shegaon Court. The same was registered as
Regular Civil Suit No.44/2011. The suit was for balance amount
of damages for non delivery of cotton seeds. The said suit is
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decided by the learned Joint Civil Judge Junior Division, Shegaon
on 27.07.2018 in which the learned Civil Court at Shegaon
directed the present respondent to pay an amount of Rs.36,521/-
within a period of one month from the date of the decree.
5. It is not disputed before this Court that petitioner
herein, who is a decree holder in Regular Civil Suit No. 44/2011
has not filed execution for executing the decree granted in its
favour by Shegaon Court.
6. In the execution of the transferred decree, the
petitioner herein deposited the amount in the executing Court at
Shegaon i.e. amount of Rs.2,63,010/-. In the execution proceeding
i.e. R. D. No.2/2017, the present respondent filed an application
for withdrawal of the amount deposited by the petitioner. It was
objected by the petitioner. He also filed an application for refund
of the amount deposited in the Court by the petitioner. The said is
at Exh.-23 on the record of the executing Court.
7. The learned executing Court, on 09.01.2020, allowed
the application filed on behalf of respondent and also directed the
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petitioner to file separate execution proceedings to get the decree
executed which was quashed in Regular Civil Suit No. 44/2011.
Against this order dated 09.01.2020, present writ petition is filed.
8. Mr. Mohta, learned counsel for the petitioner
submitted that the petitioner is also decree holder and in his
favour the Civil Court has given a decree and it is not challenged
by the present respondent. It is his submission that decree is
granted in favour of the petitioner after adjusting the amount of
Rs.1,49,045/- which was granted in favour of respondent by the
Adilabad Court.
9. The judgment and decree in Regular Civil Suit No.
44/2011 filed by the present petitioner is on record. It is from
page nos. 36 to 44 of this writ petition. It is the submission of the
learned counsel for the petitioner that he has claimed adjustment
of the amount in the plaint itself. Paragraphs 21 and 22 of the
judgment in Regular Civil Suit No. 44/2011 are relevant and they
are reproduced hereinbelow:
"21. Defendant has filed his evidence vide
Exh.46. Defendant relied on the evidence of
Rajeevkumar Mital who is Director of the defendant
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company. He reiterate the contents of the written
statements. In cross-examination he admitted that he
has not filed resolution of the company as to the
authority given to him in respect of present suit. He
admitted that he had transaction with broker Sarthi in
the year 2009. Counter note at Exh.25 and Exh.26
also discloses the name of his broker. It proves the
transaction between the parties. Defendant filed copy
of Judgment and decree in O.S.No.68/2011 vide
Exh.50 and Exh.51. This copies show that defendant
has filed suit for recovery of Rs.1,49,045/-against the
plaintiff. Which came to be decreed. In the course of
cross-examination nothing came to record to
disbelieve plaintiffs case.
22. In such the evidence of the plaintiff has
demonstrated that on 19-12-2010 defendant was in
arrears of Rs.36521/-. As defendant failed to comply
with the contract. Needless to say that plaintiff is
entitled for the recovery of Rs.36521/- from the
defendant. Accordingly I answer points no.2 to 5
collectively in the affirmative and issue no.1 does not
survive."
From perusal of the above, it is crystal clear that
learned Joint Civil Judge Junior Division, Shegaon granted a
decree of Rs.36,521/- in favour of the petitioner. It is to be noted
here that though set off was claimed in the plaint by the
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petitioner, it was not granted to him in judgment and order dated
27.07.2018. Therefore, it is crystal clear that said claim of the
petitioner was disallowed by the Civil Court and still the petitioner
did not file any appeal against the said.
10. In that view of the matter, though certain judgments
are sought to be pressed into service, they are not at all necessary
to be considered and, therefore, I am not considering those
judgments.
11. Learned counsel for respondent has submitted and it is
not disputed by learned counsel for the petitioner that the
respondent has already withdrawn the amount of Rs.2,63,010/-,
which is deposited by the petitioner in the execution. The
impugned order shows that the petitioner can very well execute
the decree granted in his favour by filing separate execution.
Hence, there is no merit in the present petition. The same is,
therefore, dismissed.
Rule is discharged. No order as to costs.
JUDGE
kahale
