CHALLA VENKATA SUBBAYYA Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) This revision petition is filed questioning the orders of the Subordinate Judge, Nuzvid, dated 7/11/1994, passed in E.A. No. 275 of 1987, in E.P. No. 19 of 1986.

(2.) The respondent, which is the Union Bank of India, Vijayawada, had obtained a money decree against the petitioner herein in O.S. No. 6 of 1974, on the file of the Sub-Court, Vijayawada. Later on, the respondent filed E.P. No. 19 of 1986, before the Subordinate Judge, Nuzvid, for executing the abovesaid decree and some amount was paid by the petitioner to the respondent in those execution proceedings. Subsequently, the petitioner, who is judgment debtor No. 1 in the E.P. filed E.A. No. 275 of 1987, under Order 21, rule 1 of the Civil Procedure Code, 1908, and section 19 of the Madras Agriculturists Debt Relief Act IV of 1938, contended that he had discharged the entire debt in instalments that by mistake, he made excess payment to a tune of Rs. 30,000; that he is an agriculturist and as such, the debt due from him shall be scaled down as per the provisions of the Madras Agriculturists Debt Relief Act IV of 1938, and that when the debt is thus scaled down, it is found that he made such an excess payment of a payment of about Rs. 30,000 to the respondent and the said amount shall be refunded by the respondent. The respondent decree-holder contested the petition contending that there was no excess payment made by the petitioner; that the decree-holder is entitled to appropriate the open payments made by the petitioner from time to time towards the costs of the suit and interest accrued on the principal amount at the first instance and then adjust the balance amount paid by the petitioner towards the principal; that in view of such appropriation made by the respondent, there was no excess payment as contended by the petitioner and the petition may, therefore, be dismissed.

(3.) Both the parties filed separate calculation memos along with their written arguments before the lower court and after hearing both sides and on the basis of the material placed before it, the lower court came to the opinion that interest cannot be scaled down as per the provisions of the Madras Agriculturists Debt Relief Act IV of 1938, as contended by the petitioner in view of the provisions of section 21A of the Banking Regulation Act, 1949, which came into force with effect from 15/02/1984; that the respondent is entitled to appropriate the amounts paid by the petitioner towards interest and suit costs in the first instance and then alone appropriate the balance amount towards principal and that in view of such circumstances and in view of the admitted payments made by the petitioner from time to time, it is found that there is an excess payment of only Rs. 1,945.85 made by the petitioner and that the respondent is liable to refund such amount to the petitioner with interest at 12 per cent. per annum till the date of payment. Aggrieved by such orders, the petitioner has filed the present revision. The respondent, which is the bank, has not chosen to question the above said order of the lower court.