STATE BANK OF INDIA Vs. DIN SHEIKH

JUDGEMENT

(1.) THIS revision is directed against the order dated 12th September, 2012 passed by learned Principal District Judge, Ramban in execution pitition titled Mohi -ud -Din Sheikh vs State Bank of India, by virtue whereof the Executing Court held the revision petitioner liable to pay an amount of Rs. 15,30,617/ - to the respondent. The impugned order is assailed as having been passed without jurisdiction and the Executing Court is alleged to have travelled beyond the scope of decree passed by the Trial Court. The impugned order is also assailed on the ground that the decree passed by the trial Court was not executable at the instance of respondent herein. A glance at the factual matrix of the case would reveal that the revision petitioner (hereinafter referred to as 'Bank') instituted a suit for recovery of Rs. 1,64,660.20 paisa with interest from 01.12.1994 and interest pendente lite and future interest against the present respondent -Mohammad -din -Sheikh and one Mohd. Umar Nizami on the ground that the present respondent had availed Cash Credit Term Loan for purchase of Vehicle and the bank sanctioned and advanced a sum of Rs. 2,00,000/ - in favour of the respondent -Mohd. Din Sheikh for purchase of Tipper. The loan is stated to have been advanced on 30.12.1982. It was alleged in the plaint that the borrower had committed default and failed to comply with the terms and conditions of the loan agreement and an amount of Rs. 1,64,660. 20 paisa was lying outstanding against respondent -borrower as on 30.12.1994. Respondent -borrower and his guarantor admitted the factum of loan being advanced to the respondent -borrower but pleaded that on account of transfer of National Highway to Beacon the respondent -borrower had suffered losses as the Tipper had met with an accident in respect whereof the Bank did not take appropriate steps for settlement with the Insurance Company. Respondent -borrower further pleaded that FDR of Rs. 50,000/ - dated 02.08.1980 deposited with the Bank be adjusted against the loan amount.

(2.) PARTIES joined issues and on consideration of evidence brought on record during the trial, the learned trial Court of Additional District Judge, Ramban decreed the suit for Rs. 1,64,660.20 paisa alongwith interest at the rate of 16% p.a from the date of institution of suit till realization of the amount. The amount of Rs. 50,000/ - deposited by the respondent -borrower in the form of FDR was directed to be adjusted with interest admissible on the said FDR at the rate of 4% for the period of 91 days w.e.f. 02.08.1980 and thereafter at the rate of interest at which nationalized banks advanced money in relation to commercial transactions. Trial Court further directed that in case outstanding decretal amount along with interest and costs is not satisfied by the amount due under the FDR, the balance amount shall be recoverable by sale of the hypothecated vehicle in the first instance failing which it shall be recovered from the persons and properties of the respondent -borrower and the guarantor. The trial Court further directed that in case the amount due under FDR, after satisfying the claim of Bank, exceeded the claim of Bank, the outstanding amount due to respondent -borrower shall be paid to him or adjusted or applied the way respondent -borrower chooses. The judgment and decree of trial Court came to be upheld by this Court in terms of order dated 14.12.2000.

(3.) THE Commission submitted its report, relevant portion whereof reads as under: -