Calcutta High Court
Canara Bank vs Mpmc Pvt. Ltd on 22 May, 2024
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OD-2
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
G.A. NO. 1 OF 2024
RVWO NO. 14 OF 2024
In connection with G.A. No. 3 of 2023
E.C. No. 287 of 2011
C.S. No. 270 of 2006
CANARA BANK
Vs.
MPMC Pvt. Ltd.
BEFORE:
The Hon'ble Justice APURBA SINHA RAY
Date : 22.05.2024
APPEARANCE:
Mr. Mainak Bose, Adv.
Mr. Farhan Gaffar, Adv.
Mrs. Swati Bhattacharyya, Adv.
...for the decree-holder
Mr. Debmalya Ghosal, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Aparajita Ghosh, Adv.
Mr. Souvik Ghosh, Adv.
...for the judgment-debtor
The Court :- The learned Counsel appearing for the applicant seeking for
review of the order dated February 27, 2024 has submitted that the said order
suffers from error apparent on the face of the record as it fails to consider the
order dated December 20, 2016 and January 8, 2020 passed by the Hon'ble
Division Bench of the Hon'ble High Court at Calcutta. The learned counsel has
further submitted that though the order dated December 20, 2016 the Hon'ble
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Court in GA No. 1404 of 2013 has used the word 'reimbursement' but such
word alone cannot have any impact on the understanding of the parties in as
much by way of subsequent order dated January 8, 2020 presided over by the
same Hon'ble Judge, the parties were directed to apply before the corporation
to determine its proportionate share of the municipal tax and rates and with a
further direction upon the defendant/judgment-debtor to pay 50% of such
amount as would be determined. Furthermore, the order dated February 27,
2024 did not consider the provisions of Order 21 Rule 1 & 2 of the Code of Civil
Procedure, 1908 which empowers the judgment-debtor to make payment by
any other mode wherein payment is evident in writing. It is further contended
that the Hon'ble Court passed the order dated February 27, 2024 without
taking into consideration that the executing court cannot determine or
adjudicate the rights and conduct of the parties and it can only assist the
parties under Order 21 of the Code of Civil Procedure, 1908 for complete
satisfaction of a decree.
1. The learned Counsel of the judgment-debtor has referred three case laws
in support of its contention reported at (2007) 15 SCC 513 (para 6) (Rajender
Kumar & Ors. Vs. Rambhai & Ors.), (1993) Supp (4) SCC 595 (paras 18 and
19) (S. Nagaraj & Ors. Vs. State of Karnataka & Anr.) and (2016) 13 SCC
135 (paras 8, 12, 13 and 17) (Chairman and Managing Director, Central
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Bank of India & Ors. Vs. Central Bank of India Scheduled
Castes/Scheduled Tribes Employees Welfare Association & Ors.).
2. Mr. Bose, the learned Counsel appearing for the decree-holder has
submitted that there is no error apparent on the face of the record so far as the
order dated February 27, 2024 is concerned. The learned Counsel has further
argued that the case laws particularly the case law reported in Chairman and
Managing Director, Central Bank of India & Ors. (supra) cited by the
judgment-debtor, in fact, supports the case of the decree-holder. However, he
has submitted a case law reported at (2008) 2 SCC 439 (Deva Metal Powders
(P) Ltd. Vs. Commissioner Trade Tax, Uttar Pradesh).
3. During hearing, Mr. Ghoshal, the learned Counsel appearing for the
applicant has extensively argued by drawing the attention of this Court to the
order passed by the Hon'ble Division Bench presided over by Hon'ble Justice
Sanjib Banerjee on January 8, 2020. Furthermore, the learned counsel has
drawn the attention of this court to paragraph no. 10 of the judgment dated
February 27, 2024. The relevant paragraph is quoted herein below:-
"From the above and other materials on record, it is
pertinent to know how much amount the decree-
holder actually paid on account of municipal taxes
and surcharges on behalf of the judgment-debtor
for the relevant period and this would certainly
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assist the court to take the instant proceeding to a
logical end."
4. The learned counsel has pointed out that when the Hon'ble Division
Bench by its order dated January 8, 2020 considered the amount of municipal
taxes and surcharges paid by the decree-holder on behalf of the judgment-
debtor for the relevant period, can the executing court again ask the decree-
holder to submit the particulars of payment on account of municipal taxes and
surcharges paid by the decree-holder on behalf of the judgment-debtor.
Decision with reasons:-
5. I have considered the above submissions of the learned counsels of the
parties and it is transpired that the grounds taken in this review application
are no less than grounds of probable appeal against the order dated 27 th
February, 2024. A bare glace on the grounds of review discloses that the
judgment-debtor wants to re-agitate its case in the garb of review application.
6. So far as regards the contention that this court directing the decree-
holder to inform the court about the actual amount of municipal taxes and
surcharges paid by the decree-holder on behalf of the judgment-debtor has
essentially contradicted the observation of the Hon'ble Division Bench's order
dated 8th January, 2020, I would like to quote the excerpts from the said order
dated 8th January, 2020 which are herein below:-
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"It is evident from the records that the amount
claimed to be due in the tabular statement filed by
the respondent herein was not supported by the
requisite calculations in the affidavit accompanying
the tabular statement. A supplementary affidavit
claimed to be filed by the respondent in January
2017 which indicated a different basis. A further
supplementary affidavit was filed by the
respondent in March, 2017 and such further
supplementary affidavit gave another figure as the
amount due and owing from the appellant herein to
the respondent on account of the municipal taxes
and surcharge. For completeness, it is also
necessary to record that the executing court
appointed a special referee and objections were
taken to the special referee's methodology of
calculating the quantum payable by the appellant
on account of the municipal taxes and surcharge.
Ultimately, both the court and the parties ignored
the special referee's report and proceeded on the
basis of calculations furnished by the respondent
and the response thereto by the appellant herein."
7. From the above, it is transpired that the Hon'ble Division Bench held
that the amount, which was claimed to be due in tabular statement filed by the
decree-holder, was not supported by any requisite calculations. The Hon'ble
Division Bench has further went on holding that there were several conflicting
calculations on the record and different steps were taken at the instance of the
court.
8. Needless to mention, the judgment-debtor time and again in different
stages of the proceeding had taken the plea that the bank was unable to pay
the requisite amount as the decree-holder failed to inform the bank regarding
the particulars of payment made by the decree-holder on behalf of the
judgment-debtor. During hearing the similar stands were taken by the learned
counsel of the judgment-debtor. The judgment under review in its paragraph 3
has recorded the submission of the learned counsel of the judgment-debtor as
follows:-
"The learned counsel appearing on behalf of the
judgment debtor- bank has vehemently objected to
the submissions of the learned counsel of the
decree-holder. According to the learned counsel of
the bank the service tax issues have already been
resolved as the bank has already paid Rs.
32,00,000/- approximately on account of the
service tax and there was no allegation till date
that service tax was not paid from the side of the
bank. As the decree-holder could not provide any
receipt showing that they have paid the amount of
municipal taxes and surcharges, it was very much
difficult for the bank to know the exact amount of
municipal taxes and surcharges which are required
to be paid from the side of the bank. Moreover, the
consent decree does not specify to whom such
amount of municipal taxes, surcharges are to be
paid and further the consent decree has disclosed
only the percentage of municipal taxes and
surcharges to be paid by the judgment-debtor
bank. The decree-holder itself quantified the
amount of municipal taxes and surcharges and it
appears that the decree-holder claimed more than
2/3rd shares of municipal taxes and surcharges
which they were not actually entitled to as per
consent decree. As the KMC was directed by the
Hon'ble Court to prepare a report for the amount of
municipal taxes and surcharges including service
taxes and after submission of such report before
the court, the judgment debtor found that the
relevant amount is its statutory dues and the bank
paid the relevant amount in its wisdom to protect
its rights and interest. There is no condition of
reimbursement mentioned in the consent decree nor
was there any condition including to whom such
municipal taxes and surcharges are to be paid. As
the amount was not crystallized even after the
calculation of the decree-holder, the judgment-
debtor has paid the amount to get rid of legal
complications."
9. So, from the above it appears that the judgment-debtor again raised the
relevant issue that they were unable to pay the relevant amount as the bank
was not made aware from the part of the decree-holder regarding the exact
amount of municipal taxes and surcharges which are required to be paid from
the side of the bank. If that be so, it is obvious that this court should know
what was the alleged actual amount which was paid by the decree-holder on
account of municipal taxes and surcharges on behalf of the judgment-debtor
for the relevant period pursuant to the consent decree and for that reason the
decree-holder was directed to inform such particulars to this court by order
dated 27th February, 2024. The order dated January 8, 2020, however, was
silent about the actual amount paid by the decree-holder in respect of the
judgment-debtor's occupied portion. The parties were given liberty to take the
assistance from the Kolkata Municipal Corporation in that regard. The report of
Corporation dated 15.09.2021 shows the total liability of Canara Bank's
occupied portion was Rs. 1,51,05,383/- as per terms of settlement. Nowhere it
has recorded what was the actual payment made by the decree-holder for
Canara Bank's occupied portion. Therefore, I do not find any wrong in asking
the decree-holder to assist the court by providing the details of such alleged
payment.
10. The plea that there is no question of reimbursement as taken by the
learned counsel of the judgment-debtor has also been discussed in the
judgment under review. In paragraph 5 of the said judgment by referring to the
order dated 20th September, 2016 (which should be read as 20th December,
2016) and order dated 8th January, 2022 (which should be read as 8th
January, 2020), this Court recorded that the said orders of the Hon'ble
Division Bench have made it clear that there is no ambiguity in terms of
statement, and the proposed payment of municipal taxes and surcharges on
behalf of the judgment-debtor is in the nature of reimbursement of the
payment already made by the decree-holder on behalf of the bank. Such
observations of the Hon'ble Division Bench have reached finality and therefore
the position, thus, is that the decree-holder can claim the relevant amount
from the concerned bank on showing that payment of municipal taxes and
surcharges have been made by the decree-holder on behalf of the judgment-
debtor bank in respect of the property for the relevant period that is from
September, 2006 to August, 2011. Therefore, the order dated December 20,
2016 and order dated January 8, 2020 which disclose that the proposed
payment of municipal taxes etc. is in the nature of reimbursement of the
payment already made by the decree-holder on behalf of the bank, have been
accepted by the judgment-debtor by not challenging the same. The judgment-
debtor wants to agitate the said issue once again in a review application which
can only be done in an appellate forum and not by filing a review application.
This is not at all an error apparent on the face of the record. All the judicial
decisions referred to by the learned counsels of the parties deal with error
apparent on the face of record. The alleged error as submitted by the learned
counsel of the judgment-debtor does not come under the ambit of error
apparent on face of the record.
10.1. Furthermore, Rule 1, Order XXI of the Code of Civil Procedure, 1908
also enjoins if the options under sub-rules (1)(a) & (b) are not applied, the mode
of paying decreetal dues would be as per direction of the court which passed
the decree. In this case there is no direction that the amount of decreetal due
can be deposited with the corporation. The orders dated 20.12.2016 and
08.01.2020 have uniformly held that the same should be reimbursed to the
decree-holder. As the ground of reimbursement of municipal taxes and
surcharges in favour of the decree-holder has become so sound, there was no
scope for the judgment-debtor to opt out for any mode of payment excepting
payment to the decree-holder through reimbursement. The plea of the
judgment-debtor in this regard is not convincing.
11. Therefore, I do not find any merit in the review application, and hence
the review application stands dismissed on contest with a cost of Rs. 50,000/-
(fifty thousand) only to be payable by the judgment-debtor Bank to the fund of
High Court Mediation and Conciliation Committee, High Court, Calcutta within
seven days from date. The instant Review Application being No. 14 of 2024 is,
thus, disposed of on contest.
12. Urgent Photostat certified copies of this order, if applied for, be supplied
to the parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)
Later
13. Learned counsel for the judgment-debtor has prayed for stay of operation
of the order.
The said prayer is considered and rejected.
(APURBA SINHA RAY, J.)
