Dismissed

Dena Bank through Its Chief Manager and Constituted Attorney Jayaram v. Shenoy v Mr. Thomas Salvador Menezes and Anr.

Bombay HC18 Oct 2013WP/549/2012

Case brief

AI extract

What is this about?

This High Court of Bombay quashed an Executing Court order directing the petitioner Bank to deposit Rs.3 lacs. The court held the Bank, as a custodian without knowledge of the decree at the time of withdrawal, could not be made liable under CPC Order 21 Rule 32, as the withdrawal was done by the judgment debtor personally.

What did the court decide?

Quashed the impugned orders dated 24/10/2011 and 9/04/2012 made by the Executing Court and made the rule absolute.

Dena Bank through Its Chief Manager and Constituted… — Banking and Recovery | Bombay HC (2013)

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W.P. No.549 of 2012

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.549 OF 2012

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Dena Bank, a body corporate constituted and functioning under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, having its Head Office at Dena Corporate Centre, C-10, G Block, Bandra Kurla Complex, Bandra, Mumbai and having its Branch Office at Indraprastha Bldg., Dr. P. Shirgaonkar Road, Panaji, Goa, through their Chief Manager and constituted attorney Shri Jayaram V. Shenoy

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….Petitioner

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V/s

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Mr. Thomas Salvador Menezes

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@ Salvador Menezes, s/o. Late Sebastiao Francisco de Pureza Menezes, Major, unmarried, residing at H.No.87/N, Priemeiro Vaddo, Divar, Ilhas, Goa. (since deceased) through his legal heir, 1(a) Mr. Aleixinho F.R. Monseratte, having address at Santarbhat, Piedade, Divar, Ilhas, Goa.

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Mr. Joaquim Felix Vaz, s/o. Late Inacio Vaz, major, married, Residing at 5-B, Rajmahal Apts., 26-27, 9^th Main, RMV Extension, Bangalore. …. Respondents

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Shri A.R. Kantak, Advocate for the Petitioner.

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W.P. No.549 of 2012

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Shri R. Menezes, Advocate for Respondent No.1(a).

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CORAM : R.M. SAVANT, J.

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DATE : 18^th OCTOBER, 2013

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ORAL JUDGMENT :

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Rule. With the consent of the learned Counsel for the parties made returnable forthwith and heard.

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The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 24/10/2011 passed by the Executing Court i.e. the learned Civil Judge Senior Division, Panaji by which order the application filed by the respondent no.1 herein for directing the petitioner herein i.e. the Judgment Debtor No.2 to deposit an amount of Rs.3 lacs (Rupees three lacs only) in the Executing Court came to be allowed. The second order under challenge is the order dated 9/04/2012 by which order the review application filed by the petitioner came to be rejected.

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The facts necessary to be cited for adjudication of the above Petition in brief can be stated thus:

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The petitioner herein was the defendant no.2 in the suit filed by the respondent no.1 being Special Civil Suit No.100/2007. The substantive

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W.P. No.549 of 2012

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reliefs sought in the said suit are as follows:

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(a) For a declaration that the plaintiff is the sole and exclusive owner of the amounts standing presently in fixed deposit account No.030131836328 for Rs.6,00,000/-, 030156837334 for Rs.50,000/- in State Bank of India, Panaji Branch and FSC 1688 for Rs.5,00,000/- and FDR 12327 for Rs.7,00,000/- in the Dena bank, Panaji branch and Saving bank Account with SBI, Panaji Branch bearing No.3012556835-5 and savings bank account No.SB/GEN/19610 with Dena Bank, Panaji Branch. (b) For a direction to the said banks namely the State Bank of India and Dena bank to delete the name of the defendant No.1 from the said fixed deposits and from the bank account.

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(c) For a Permanent Injunction restraining the defendants from withdrawing any money from the said accounts and deposits.

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The petitioner herein did not choose to appear in the suit though summons were served as according to it the substantive reliefs were directed against the defendant no.1, who would suffer the consequences of the suit being decreed. The suit came to be decreed by the Trial Court by judgment and order dated 9/03/2010. The Decree Holder i.e. the respondent no.1 herein by letter dated 6/04/2010 communicated the decree passed on 9/03/2010 and requested the petitioner-Bank to delete

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W.P. No.549 of 2012

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the name of the defendant no.1 i.e. Joaquim Felix Vaz alias Felix Vaz from the Fixed Deposit Receipts as also from the Savings Bank Account No.SB/GEN/19610 with the petitioner-Bank.

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It appears that prior thereto on 17/03/2010, the defendant no.1 had withdrawn an amount of Rs.3 lacs (Rupees three lacs only) from his Savings Bank Account in the petitioner-Bank in respect of which, in terms of the decree his name was to be deleted.

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The respondent no.1-Decree Holder filed an application for execution of the said decree dated 9/03/2010 being Special Execution Application No.15/2010/B. In the said Execution Application, the respondent no.1 filed an application by which he had sought the assistance of the Court to detain the defendant no.1 i.e. the Judgment Debtor No.1 in civil prison and to require him to deposit an amount of Rs.3 lacs (Rupees three lacs only) which he had withdrawn and deposit the same in Court with interest at the rate of 10% per annum from the date of withdrawal till payment and also requiring the Judgment Debtor No.1 to file affidavit of his assets and his property to be attached and sold and therefrom for realisation of the said amount to be paid to the Decree

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W.P. No.549 of 2012

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Holder. However, thereafter, it seems the said application came to be amended and the respondent no.1 sought the assistance of the Court against the Branch Manager of the petitioner-Bank for being detained in the civil prison and the amount of Rs.3 lacs (Rupees three lacs only) directed to be deposited in the Executing Court with interest at 10% per annum from the date of the withdrawal till the actual payment. Since the relief was sought against the Branch Manager of the petitioner, a reply came to be filed on behalf of the petitioner, who was the Judgment Debtor No.2. In the said reply, the petitioner adverted to the fact that the decree was communicated to it by the Decree Holder by letter dated 6/04/2010 pursuant to which it has complied with the same and deleted the name of said Joaquim F. Vaz from the Fixed Deposit and Savings Bank Account with the petitioner-Bank. The petitioner in the said reply also contended that there is no decree passed against it, save and except, to the extent of deleting the name of the Judgment Debtor No.1 from the records. It was further contended that petitioner has not withdrawn any amount and that the withdrawal was made by the Judgment Debtor No.1 by utilising his cheque no.206941 on 17/03/2010. It was therefore contended on behalf of the petitioner that no execution could take place against the petitioner-Bank.

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W.P. No.549 of 2012

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The said application praying for assistance of the Court to execute the decree against the Branch Manager of the petitioner-Bank was considered by the Executing Court i.e. the learned Civil Judge Senior Division, Panaji and by the first impugned order dated 24/10/2011, the learned Judge has allowed the same. The gist of the reasoning of the learned Judge can be found in paragraph no.11 of the first impugned order. The said relief has been granted principally on the ground that under Order 21 Rule 32 CPC, which posits that where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. The learned Judge thereafter in paragraph 12 has observed that she was in agreement with the submissions made on behalf of the Decree Holder that Judgment Debtor no.2, petitioner herein, has violated the restraint order passed by the said Court and therefore directed the

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W.P. No.549 of 2012

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petitioner to deposit an amount of Rs.3 lacs (Rupees three lacs only) in the said Court, however rejected the relief of the said amount being deposited with 10% interest per annum from the date of withdrawal till the date of deposit.

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The petitioner-Bank thereafter filed an application for review being Civil Misc. Application No.29/11/B. The review was sought inter alia on the ground that in the execution application filed by the Decree Holder there is no contention of violation of the restraint order which the Executing Court had failed to take into consideration. The review was also sought on the ground that the Executing Court has without recording a finding as to the date on which the Judgment Debtor no.2 became aware of the decree in the context of the allegation of willful disobedience, has issued the said direction. The Executing Court by the second impugned order dated 9/04/2012 accordingly dismissed the application for review. As indicated above, the said two orders i.e. the order dated 24/10/2011 and 9/04/2012 are taken exception to by way of the above Writ Petition.

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Heard the learned Counsel for the parties.

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W.P. No.549 of 2012

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The learned Counsel appearing on behalf of the petitioner, Shri Kantak, would contend that though the summons were served upon the petitioner, the petitioner-Bank did not deem it fit to appear in the suit, considering the nature of the reliefs which were sought. The learned Counsel would contend that the petitioner became aware of the decree passed only when the letter dated 6/04/2010 was received from the Decree Holder. It is the contention of the learned Counsel for the petitioner that since the withdrawal was prior thereto i.e. on 17/03/2010 and since the withdrawal was by the Judgment Debtor no.1, by his own cheque, the petitioner could not be blamed for the same. The learned Counsel would contend that as soon as the petitioner acquired knowledge of the decree by the said letter dated 6/04/2010, it took immediate steps and deleted the name of the Judgment Debtor No.1 from the records of the Saving Bank Account as also the Fixed Deposit Receipts.

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Per contra, the learned Counsel appearing for the Decree Holder i.e. respondent no.1, Shri R. Menezes would contend that the petitioner being served with the summons and being a party to the suit cannot plead ignorance of the decree that was passed in the suit. The learned Counsel relying upon the decree passed in the suit would contend that the

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W.P. No.549 of 2012

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injunction in respect of the withdrawal of the amount was against all defendants including the Bank. Since it is the submission of the learned Counsel that since the petitioner-Bank has permitted the withdrawal though through a cheque of the Judgment Debtor No.1, the liability of the petitioner-Bank arises and therefore the order passed by the Executing Court calls for no interference.

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Having heard the learned Counsel for the parties, I have considered the rival contentions. The moot question which arises is whether the petitioner-Bank can be made liable for the withdrawal of the amount of Rs.3,00,000/- by the Judgment Debtor no.1 which withdrawal has taken place on 17/03/2010. In the said context it is required to be noted that by the decree which has been passed on 9/03/2010, the substantive relief which has been granted to the plaintiff in the said suit is that the amount in the said suit belongs to the plaintiff and therefore the name of the Judgment Debtor No.1, who was the defendant no.1 in the said suit was directed to be deleted from the Savings Bank Account as well as the Fixed Deposits. In so far as the petitioner-Bank is concerned, there was no lis between the petitioner-Bank and the original plaintiff as the petitioner-Bank can only be said to be custodian of the amounts which

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W.P. No.549 of 2012

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were lying in the Fixed Deposit as well as the Savings Bank Account. It had nothing to do between the interse dispute between the Decree Holder and the Judgment Debtor No.1. It is probably in the said context that the petitioner-Bank did not deem it appropriate to appear in the suit though summons were served upon it. It is pertinent to note that the suit was decreed on 9/03/2010 and thereafter on 6/04/2010 for the first time a letter came to be addressed by the Decree Holder to the petitioner-Bank informing the petitioner-Bank about the suit being decreed and to take follow up action pursuant to the said decree. There appears to be no dispute as regards the fact that the petitioner-Bank took follow up action and deleted the name of Judgment Debtor no.1 from the records of the Bank in so far as the Savings Bank Accounts and the Fixed Deposits are concerned. However, prior thereto the Judgment Debtor No.1 had already withdrawn the amount of Rs.3 lacs (Rupees three lacs only) from the said Savings Bank Account through the medium of his own cheque as he was the account holder. The petitioner-Bank obviously could not stop the Judgment Debtor no.1 from withdrawing the amount on 17/03/2010 in the absence of any knowledge of the decree passed in the suit on the said day. It would be preposterous to attribute knowledge of the petitioner-Bank only for the reason that the petitioner-Bank was served

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with the summons in the said suit. Hence, the knowledge of the decree passed on 9/03/2010 can be attributed to the petitioner-Bank only on 6/04/2010 when the letter addressed by the Decree Holder was received by it. The petitioner therefore could not be held liable for the said amount of Rs.3 lacs (Rupees three lacs only) which has been withdrawn by the defendant no.1. The defendant no.1 as can be seen has withdrawn the said amount after the decree was passed on 9/03/2010 and therefore much can be said about the said withdrawal of the defendant no.1, though he was having knowledge of the said decree. As can be seen, the respondent no.1 i.e. the Decree Holder had initially rightly proceeded in the matter by seeking assistance of the Court to detain Judgment Debtor no.1 in prison by having recourse to Order 21 Rule 32 of the Civil Procedure Code. However, thereafter for the reasons best known to the Decree Holder the execution application was sought to be directed against the petitioner-Bank. The direction sought against the petitioner-Bank in the conspectus of the facts as narrated above, in my view, are misconceived and misfounded. It is pertinent to note that no ulterior motive or malafides have been alleged against the officers of the Bank. The conditions mentioned in sub rule (1) of Rule 32 therefore cannot be said to be satisfied. The petitioner-Bank, therefore, obviously cannot be made

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W.P. No.549 of 2012

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liable for the amount which has been withdrawn by the defendant no.1.

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The Executing Court without appreciating the matter in the correct perspective has passed the impugned order. The exercise of writ jurisdiction is therefore warranted. The impugned orders are therefore required to be quashed and set aside and are accordingly quashed and set aside. Rule is accordingly made absolute in the aforesaid terms.

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Though the impugned orders are quashed and set aside, the respondent no.1(a) would be at liberty to proceed against the Judgment Debtor No.1 for execution of the decree in accordance with law. Since the petitioner has deposited the said amount of Rs.3 lacs (Rupees three lacs only) in this Court pursuant to the order dated 22/08/2012, the petitioner would be entitled to withdraw the said amount along with interest if any that has accrued thereon.

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R.M. SAVANT, J.

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NH/-

Dena Bank through Its Chief Manager and Constituted Attorney Jayaram v. Shenoy v Mr. Thomas Salvador Menezes and Anr.

Case brief

What is this about?

What did the court decide?

Dena Bank through Its Chief Manager and Constituted Attorney Jayaram v. Shenoy v Mr. Thomas Salvador Menezes and Anr.

Case brief

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What did the court decide?

What the court decided

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