Suresh Garodia vs Om Parkash
2018 Latest Caselaw 4224 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Reserved on: 16th July, 2018
                                          Pronounced on: 24th July, 2018

+     EX.P. 267/2001 & EA (OS) 860/2016
      SURESH GARODIA                                   ..... Decree Holder
                  Through :             Mr.Rajesh Gupta, & Mr.Pranjal
                                        Saran, Advocates.
                            versus
      OM PARKASH                                     ..... Judgement Debtor
                            Through :   Mr.Satish Pandey & Ms.Prabha
                                        Kushwaha,         Advocates     with
                                        judgment debtor in person on
                                        execution of bailable warrants.

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. The money suit No.307 of 1998 was decreed by the Court of Civil Judge (Sr. Division) No.3, Guwahati, for a sum of Rs.14,75,047/- with interest at the rate of 15% per annum besides costs of the suit.

2. The said decree was not executable within the jurisdiction of the Ld.Civil Judge (Sr. Division) No.3, Guwahati, hence on an application by the decree holder the learned Court had passed orders under Order XXI Rule 6 CPC and issued a certificate of non-satisfaction of decree and a letter- transmitting decree for execution addressed to Delhi Courts alongwith original execution application No.M--Ex.17/2001, certified copy of the money decree and the judgment.

3. Inadvertently the learned Civil Judge, (Sr. Division) No.3 of Guwahati, Assam addressed the same to City Civil Judge, New Delhi, whereas the original jurisdiction of the decretal amount lies with this Court.

4. Hence an application was moved before this Court for warrants of attachment against judgment debtors No.l and 2 for a decretal amount of `10,37,500/- with interest @ 15% p.a. of `4,04,625/- with proportionate cost as bifurcated i) against judgment debtor no.1 `8,40,000/- decretal amount, `3,27,600/- interest, `13,112/- proportionate cost total `11,80,712/-; ii) against judgment debtor no.2 `1,97,500/- decretal amount, `77,025/- interest, `3,087/- proportionate cost total `2,77,608/-. Warrants of attachment against judgment debtors no.3 and 4 for a decretal amount of `4,37,547/- with interest @ 15% per annum of `1,70,664/- with proportionate cost of `6,830/- making a total of `6,15,021/-. The decree holder further prayed the attached goods be put to public auction and the sale proceeds so realised be paid to the decree holders to satisfy the judgment and decree dated 13.06.2000 passed by the learned Court of Civil Judge, Senior Division No.3, Guwahati in suit 307/98. List/Schedule of movable and immovable properties was attached.

5. Admittedly the judgment debtor had paid an amount of `10.00 Lac towards part payment of the decree and has filed this application wherein he alleges he shall now pay only `5,24,838/- to the Registrar General in full and final settlement.

6. It is alleged by the learned counsel for the judgment debtor the delay in execution has been caused due to the conduct of the decree holder as he could not pursue his execution for the last 16 years and hence the judgment debtor is not liable to pay the entire interest from the date of decree and necessary adjustments for delay caused by the applicant be given.

7. The judgment debtor though was proceeded ex-parte in the suit but later he moved an application for setting aside of the ex-parte order which was not allowed and the decree was passed.

8. Admittedly the judgment debtor was before the Court and had knowledge of the passing of the decree but did not pay the decreetal amount in time, hence his plea there was a delay in pursing execution is a misconceived argument. Rule 1 to Order XXI CPC read as under:

"21. EXECUTION OF DECREES AND ORDERS

1. Modes of paying money under decree-- (1) All money, payable under a decree shall be paid as follows, namely :-- (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or (c) otherwise, as the Court which made the decree, directs. (2) Where any payment is made under clause (a) or clause (c) of sub rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due. (3) Where money is paid by postal money order or through a bank under clause

(a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely : -- (a) the number of the original suit; (b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants; (c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs; (d) the number of the execution case of the Court, where such case is pending; and (e) the name and address of the payer. (4) On any amount paid under clause (a) or clause (c) of sub-rule (1) interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2). (5) On any amount paid under clause (b) of sub-rule (1) interest, if any, shall cease to run from the date of such

payment : Provided that, where the decree-holder refuses to accept the postal order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be."

9. In DDA vs Bhai Sardar Singh and sons, 158 (2009) DLT 8 (DB) the court held:

"17. In our view, the act of making payment to the decree holder under Rule 1 of Order XXI CPC would require a positive act on the part of the judgment debtor of either depositing into the Court whose duty it is to execute the decree or to make payment out of court to the decree holder through a postal money or through a bank or by any other mode wherein payment is evidenced in writing, unless the Court which made the decree otherwise directs. The payment made under a decree, to fall within the ambit of Order XXI Rule 1 CPC has therefore, necessarily, to be an unconditional payment by the judgment debtor to the decree holder either directly, or indirectly through the medium of the Court whose duty is to execute the decree. Mere deposit of the decretal amount in a Court, other than an executing Court can never amount to payment and even where the decretal amount is deposited in the executing court, the judgment debtors liability to pay interest does not cease until notice contemplated by sub-rule(2) of Rule 1 of Order XXI is given. This is evident from sub-rule(4) above. Order XXI Rule 1 CPC does not contemplate the decree holder having to chase the judgment debtor to realize the decretal amount by seeking attachment of one or the other accounts of the judgment debtor or the properties of the judgment debtor. If resort to the execution process of the Court is required to be made by the decree holder, and the decretal amount is recovered in pursuance of the order of attachment of the accounts of the judgment debtor, and/or sale of assets of the judgment debtor, such realization of the decretal amount would not amount to payment of the decretal amount under Rule 1 of Order XXI."

10. Considering the law above, the judgment debtor cannot take advantage of any delay in execution since to pay the decretal amount is a duty cast upon him under Rule 1 of Order XXI CPC.

11. The next question raised by the judgment debtor is since he has paid Rs.10.00 Lac it be adjusted against the principal amount is also a fallacious argument in view of Industrial Credit and Development

Syndicate now called I.C.D.S. Ltd. vs Smithaben H. Patel and others (1993) 3 SCC 80 where the court noted:

"14.In view of what has been noticed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustments, be made firstly in payment of interest and costs and thereafter in payment of the principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement is pleaded, the onus of proving is always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule. The provisions of Sections 59 to 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal with cases in which the principal and interest are due on a single debt."

12. In view of the above the decree holder is directed to file his computation, till date, after giving adjustment of `10.00 Lac to the judgment debtor in the manner stated in ICDS Limited (supra) and to disclose the amount due as of now so that further measures can be initiated. Computations be filed within four weeks from today and a copy of same be sent to the learned counsel for the judgment debtor.

13. List on 04.10.2018.

YOGESH KHANNA, J

JULY 24, 2018 DU