Allowed

Bimal T. v. Muthoot Vehicle & Asset Finance Ltd.

Kerala HC9 Aug 2016OP(C)/1588/2016

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging an order on execution petition. It upheld the decree holder's calculation of the due amount based on Supreme Court principles regarding appropriation of payments. The Court granted a time period for payment in instalments.

What did the court decide?

Three months time granted to pay Rs.2,26,407 in equal monthly instalments; if paid in full, no further interest; otherwise execution proceeds with interest.

Bimal T. Vs Muthoot Vehicle & Asset Finance Ltd. — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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OP(C).No. 1588 of 2016 (O)

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EP.59/2012 IN AR.771/2011 OF DISTRICT COURT, PALAKKAD

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PETITIONER(S):

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1. BIMAL T., S/O.THYAGARAJAN, KOKILAM, ODANNUR, PARLI, PALAKKAD DISTRICT, 678 612.

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2. BHANUMATHI, W/O.THYAGARAJAN, KOKILAM, ODANNUR, PARLI, PALAKKAD DISTRICT, 678 612.

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BY ADVS.SRI.S.SAJU

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SRI.P.M.SHAMEER SRI.BOBBY LAL

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RESPONDENT(S):

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MUTHOOT VEHICLE & ASSET FINANCE LTD. [FORMERLY MUTHOOT LEASING AND FINANCE LTD, MUTHOOT CHAMBERS, KURIAN TOWERS, BANERJI ROAD, KOCHI 682 018, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER AND MANAGER, A.K.SASIKUMAR, SATHYASAIKRIPA, CHITTUR, PALAKKAD.

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BY ADV. SRI.SABU S.KALLARAMOOLA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1588 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1.	COPY OF THE ARBITRATION REFERENCE NO.771 OF 2011 DATED 31.12.11 PASSED BY THE SALE ARBITRATOR.
EXHIBIT P2.	COPY OF THE EXECUTION PETITION EP 59/12 IN AR 771 OF 2011 DATED 16.3.12.
EXHIBIT P3.	COPY OF THE JUDGMENT IN OPC 4442/2013 DATED 25.2.16.
EXHIBIT P4.	COPY OF THE CALCULATION STATEMENT FILED BY THE RESPONDENT/DECREE HOLDER IN EP 59/12 IN AR 771/11 DATED 1.4.16.
EXHIBIT P5.	COPY OF THE CALCULATION STATEMENT AS PER THE EXHIBIT P1 AWARD SUBMITTED BY THE PETITIONERS/JUDGMENT DEBTORS.
EXHIBIT P6.	COPY OF THE OBJECTION FILED BY THE PETITIONERS/JUDGMENT DEBTORS IN EP 59/12 IN AR 771/11 DATED 9.6.16.
EXHIBIT P7.	COPY OF THE ORDER DATED 14.6.16 IN EP 59/12 IN AR 771/11 PASSED BY THE HONOURABLE 2ND ADDITIONAL DISTRICT COURT, PALAKKAD DATED 14.6.16.

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RESPONDENT(S)' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K.RAMAKRISHNAN, J.

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O.P.(C). No.1588 of 2016

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=======================

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Dated this the 9^th day of August, 2016

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JUDGMENT

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This is an application filed by the petitioners challenging Ext.P7 order in E.P. 59 of 2012 in A.R.771 of 2011 of the II nd Additional District Court, Palakkad under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioners are the judgment debtors in the above execution petition and he had taken a loan from the respondent and since there was default committed, the matter was referred to Arbitration and Arbitration award was passed. The respondent filed Ext.P2, execution petition as E.P.59 of 2012 in AR. No.771 of 2011 of II nd Additional District Court, Palakkad for executing the award for realization of the amount. The petitioners filed O.P.(C) No.4442 of 2013

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before this Court seeking time to pay the amount and this

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O.P.(C). No.1588 of 2016 -2-

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Court has granted three weeks time to pay the amount and otherwise respondents was permitted to prosecute the execution petition. Thereafter, Ext.P4 calculation statement was filed by the respondent decree holder before the court below and petitioners filed Ext.P5 calculation statement and also filed Ext.P6 objections to the calculation statement filed by the decree holder as they have disputed the amount payable. The learned Additional District Judge came to the conclusion that an amount of Rs.2,42,228/- was due as on 09.06.2016, after considering all the objections specified by the judgment debtor and passed Ext.P7 order. This was challenged by the petitioners by filing this Original Petition.

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As directed by this Court, both the parties filed their calculation statements. As per calculation statement filed by the petitioners, only an amount of Rs.1,66,703/alone was due. As per the calculation statement filed by the decree holder, respondent, an amount of Rs.2,26,407/- is due.

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Heard both sides.

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O.P.(C). No.1588 of 2016 -3-

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According to the Counsel for the petitioners, the decree holder is not entitled to calculate interest once they had deposited the amounts and amount is deducted from the principal first, then no interest will run on the principal amount. He had relied on the decisions reported in Gurupreet Singh v Union of India [(2006) 8 Supreme Court Cases 457] in support of his case.

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On the other hand, the Counsel for the respondent submitted that even as per the decision, the amount will have to be deducted first towards interest and cost and thereafter towards the principal amount. The calculation was made on that basis only.

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I have gone through the calculation statements filed by both the parties. Even in the decision reported in Gurupreet Singh's Case (supra), the Supreme Court has only held that when there is no direction as to how the amount will have to be appropriated mentioned in the judgment, then, the amount paid will have to be first appropriated towards interest and cost and thereafter, any balance

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O.P.(C). No.1588 of 2016 -4-

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amount is there, it will have to be deducted towards principal amount and thereafter no interest can be run on the interest portion of the amount. In this case, I have gone through the statement filed by the decree holder. The calculations shows that they had deducted the amounts paid by the judgment debtors on the respective dates and the calculations made appears to be in tune with the judgment in Gurupreet Singh's Case (supra). So the court below was perfectly justified in coming to the conclusion that the calculations made by the decree holder is proper. Further, as per the calculations statement now before this Court submitted by the decree holder, an amount of Rs.2,26, 407/- is due as on 03.08.2016 and that amount appears to be the correct amount in tune with the dictum laid down by the Supreme Court in the above case. When this was pointed out, the Counsel for the petitioners submitted that if some time is granted for payment, he will pay the amount.

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Considering the circumstances, this Court feels

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O.P.(C). No.1588 of 2016 -5-

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that three months time can be granted to the petitioners to pay the amount in three equal monthly instalments and if they fail to pay any one of the instalments, then the respondent is entitled to realise the amount due with interest as per the award. If they pays the amount within three instalments as directed, then he need to pay only Rs.2,26,407/- as the amount quantified as on 03.08.2016. So the petition is disposed of as follows:-

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As on 03.08.2016, an amount of Rs.2,26,407/- is due to the decree holder from the judgment debtors and they are given three months time to pay the amount in three equal instalments first of which will have to be paid on or before 31.08.2016. The balance amounts will have to be paid on the 25^th of succeeding months and the last payment will have to be paid on or before 9.11.2016. If the amount is paid within this time then, no further interest will have to be paid by the petitioners herein. If any default is committed by the petitioners herein, then they will not be entitled to the benefit and the decree holder is entitled to realise the amount with interest on balance amount as per the award. Till then, the court below is directed to keep the execution in abeyance. If any default is committed, court below is at liberty to proceed with execution from the stage at which it was posted.

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O.P.(C). No.1588 of 2016 -6-

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With the above directions and observations, the

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petition is disposed of.

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Office is directed to communicate this judgment to the

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court below at the earliest.

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Sd/K.RAMAKRISHNAN, JUDGE

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SKV

Bimal T. v. Muthoot Vehicle & Asset Finance Ltd.

Case brief

What is this about?

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Bimal T. v. Muthoot Vehicle & Asset Finance Ltd.

Case brief

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