Allowed

Indian Overseas Bank v. a.Ummer Shereef

Kerala HC24 Jun 2016OP(C)/1337/2016

Case brief

AI extract

What is this about?

The High Court allowed the bank's petition challenging a lower court order that closed the execution petition and directed the bank to refund excess payment due to alleged overpayment by the respondent. The court directed restoration of the execution petition.

What did the court decide?

Impugned order Ext.P6 set aside; execution petition restored for fresh consideration of full amount payable.

Indian Overseas Bank Vs a.Ummer Shereef — Execution and Attachment | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938

¶5

OP(C).No. 1337 of 2016 (O)

¶6

EP 87/2014 OF PRINCIPAL MUNSIFF COURT, KOZHIKODE-II

¶7

PETITIONER(S):

¶8

INDIAN OVERSEAS BANK, MAVOOR ROAD BRANCH, KOZHIKODE, REPRESENTED BY ITS SENIOR MANAGER, KANNAN V.

¶9

BY ADVS.SRI.K.N.SIVASANKARAN SRI.SUNIL SHANKER SMT.ARCHANA S. KUMAR

¶10

RESPONDENT(S):

¶11

A.UMMER SHEREEF, ALIKKAL HOUSE, KOTTIYEDATH PARAMBA, KOZHIKODE- 673 015.

¶12

BY ADVS. SRI.SRINATH GIRISH SMT.T.JISHARAJ SRI.P.JERIL BABU

¶13

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

msv/

¶15

OP(C).No. 1337 of 2016 (O)

¶16

APPENDIX

¶17

PETITIONER(S)' EXHIBITS

¶18

P1 TRUE COPY OF THE AWARD OF LOK ADALAT.

¶19

P2 TRUE COPY OF THE EXECUTION APPLICATION.

¶20

P3 TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENT.

¶21

P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER.

¶22

P5 TRUE COPY OF THE COMPUTERIZED STATEMENT OF ACCOUNT NO.141103270600035 FOR THE PERIOD FROM 20-5-2006 TO 19-02-2016.

¶23

P6 TRUE COPY OF THE ORDER IN E.P.87/2014 IN L.A.C. NO. 187/2011.

¶24

RESPONDENT(S)' EXHIBITS:

¶25

------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K.HARILAL, J.

O.P.(C). No.1337 of 2016

¶32

Dated this the 24^th day of June, 2016

¶33

JUDGMENT

¶34

The petitioner Bank is the decree holder in E.P. No.87/2014 in L.A.C. No.187/2011 of the Principal Munsiff's Court-II, Kozhikode. The petitioner had filed the above execution petition for realising the entire outstanding amount of Rs.1,46,612/- along with interest at 12% and cost till the date of filing the execution petition. According to the petitioner, the respondent remitted certain amounts on various dates after the filing of the execution petition. As the respondent has not remitted the balance amount the court issued arrest warrant on 29.1.2016 and the respondent was arrested and produced before the court. Then the respondent was ready to remit the balance amount in court. But, on the next day, he filed a petition for refund of Rs.20,000/- by the petitioner

¶35

OP(C).1337/16 :2:

¶36

bank to him. According to him, since the Lok Adalat decree was for Rs.95,000/-, he is liable to remit that amount only. But, he has remitted Rs.1,15,000/- and therefore, he is entitled to get back Rs.20,000/-, which he had paid in excess. After considering the said application, the court below passed Ext.P6 order, closing the execution petition, on a finding that the entire amount was realised and directed the petitioner to deposit the excess amount of Rs.20,000/- allegedly received by the petitioner, within five days. The legality of this order is under challenge in this original petition.

¶37

Heard the learned counsel for the petitioner and the learned counsel for the respondent.

¶38

The sum and substance of the arguments advanced by the the learned counsel for the petitioner is that the court below failed to note the default clause in Ext.P1 award. Had the court below noticed the said clause, the impugned order would not have

¶39

OP(C).1337/16 :3:

¶40

been passed directing the petitioner to repay Rs.20,000/- to the respondent.

¶41

The respondent failed to remit the instalments without default and consequently, he was arrested and produced before the court so as to detain in civil prison. It shows that he failed to remit the instalments granted under Ext.P1 without default. If that be so, as rightly submitted by the learned counsel for the petitioner, the benefit granted under Ext.P1 award will be lost and the respondent is liable to remit the entire balance of the E.P. amount with interest. The suit is for realisation of an amount of Rs.1,15,548/- with interest, with conditions; but settled for Rs.95,000/- and the execution petition is filed for realising Rs.1,46,612/-. But, obviously, the court below failed to note the operation of default clause. Ext.P1 Award specifically says that in case of default, the benefit granted will be lost. In other words, in case of default, the respondent is liable to

¶42

OP(C).1337/16 :4:

¶43

pay the amount as claimed by the petitioner Bank in the suit. In short, Ext.P1 is a conditional award, with respect to quantum of amount. Therefore, Ext.P6 will stand set aside and the Execution Court is directed to restore the Execution Petition on the files and consider whether the respondent has remitted the entire E.P. amount and pass orders afresh, accordingly.

¶44

This original petition is disposed of accordingly.

¶45

Sd/K. HARILAL, JUDGE

¶46

okb.24/6

Indian Overseas Bank v. a.Ummer Shereef

Case brief

What is this about?

What did the court decide?

Indian Overseas Bank v. a.Ummer Shereef

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Dr.Bineeta Bruno M Vs Dr.Sandeep Thomas

Shanmughan Achari Vs Baiju

Moideenkutty Haji Vs Moideenkutty

Jameel Sooraj Vs Basheer

Easy Vs Gopalakrishna Kamath

Sainath Enterprises Vs the Catholic Syrian Bank Limited