DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
8TH FLOOR, B.W.S.S.B BUILDING, K.G.ROAD,BANGALORE-09 Execution Application No. EA/18/384
( Date of Filing : 23 Nov 2018 )
In
Complaint Case No. CC/17/988
1. Paul Rajan P S/o Paramaganam,R/at No.46/7,Seshdari Road,Marappa Garden,2nd Floor,Benson Town Post,B-46 ...........Appellant(s) Versus
1. Gruha Kalyan Rep by its Proprietrix Majumbar Shataparni,No.32/A,9th Main Sector-6,HSR Layout,Near Empire Hotel,B-102 ...........Respondent(s)
BEFORE:
HON'BLE MR. K. SHIVARAMA PRESIDENT
HON'BLE MS. Renukadevi Deshpande MEMBER
HON'BLE MR. H. Janardhan MEMBER
PRESENT:
Dated : 13 May 2022 Final Order / Judgement
ORDERS
1. The learned counsel for D.Hrs Sri K.P.N in E.P.Nos.383/18 to 391/18, 393/18 to 397/18, 351/18, 238/2019, 95/20, 242/20, 243/20 and 75/21 to 78/21 contends that in E.P.Nos.382/18 to 397/18, this Commission has issued recovery certificate by order dated 09.09.2019, thereby, the Deputy Commissioner had auctioned the property and deposited the proceeds in the office of this Commission. Further, the counsel for D.Hrs in E.P.Nos.383/18 to 391/18, 393/18 to 397/18, 351/18, 238/2019, 95/20, 242/20, 243/20 and 75/21 to 78/21 contends that D.Hrs have filed affidavits confining their claim only to the principal amount. The recovery certificate had not been ordered by this Commission in other E.P.Nos. 351/18, 238/2019, 95/20, 242/20, 243/20 and 75/21 to 78/21.
1. The learned counsel for the D.Hrs Sri V.L.K.Rao in E.P.392/18, 94/20, 96/20 to 98/20, 244/20 and 79/21 contends that the D.Hrs in the said cases have also claimed the amount from same J.Drs and the J.Drs in all the cases stated above are one and the same. It is not in dispute that recovery certificate has also been issued in EP No.392/2018 on 09.09.2019. Further, though recovery certificate had not been ordered by this Commission in other
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E.P.Nos.94/20, 96 to 98/20, 244/20 and 79/21, the present D.Hrs are also entitled for the amount deposited before this Commission as contemplated under Section 73 of Code of the Civil Procedure in the manner of rateable distribution.
1. It is not in dispute that as per the recovery certificate issued under Section 25 of C.P.Act, 1986, after auctioning the property, the Tahasildar had deposited an amount of Rs.2,20,00,000/- (Rupees two crore twenty lakhs only) before this Commission. Further, it is not in dispute that out of the said amount, a sum of Rs.38,42,000/- (Rupees thirty eight lakh fourty two thousand only) was sent to the Hon'ble State Commission as per order of the Hon'ble State Commission dated 20.04.2022 (EA No.15/2019-CC 347/2017). Further it is not in dispute that in Execution Petition No.382/2018 the recovery certificate was issued as per order dated 09.09.2019, the D.Hr confined his claim only to the principal sum of Rs.5,25,000/- (Rupees five lakh twenty five thousand only) and this Commission had issued cheque for the said amount as full and final settlement and closed the case.
1. In support of the contention, the learned counsel for D.Hr in EP Nos.392/18 has filed memo with one citation reported in AIR 1957 Andhra Pradesh 1017 Pradesh High COURT in Moka Jambanna Petitioner Vs. Kopparam Honnappa. In the said judgement, it is stated that Section 73 of Code of Civil Procedure does not require a separate application for rateable distribution and accordingly there can be no objection to including a prayer for the distribution of the assets in the application which is really for execution of the decree itself . In the said judgement, the decree holder in column 10 under the heading, the mode in which the assistance of the Court is required stated that " the decree holder should be paid the rateable from and out of the proceeds to be realised on sale and deposited in Court" . In the cases referred by the counsel, it is not at all stated in any where that the D.Hrs should be paid the rateable from and out of the proceeds to be realised on the sale and deposited in the Court.
1. It is stated in the E.Ps in which the counsel Sri V.L.K.Rao appears that recovery shall be made by attachment of sale of moveable of J.Drs and arrest of J.Drs and by attachment of immovable property. Therefore, the facts of the case in the cited judgement is different from the facts of the cases on hand. Therefore, the same is not applicable. Apart from that, as contended by the learned counsel for D.Hrs Sri K.P.N. in EP Nos.383 to 397/18 under Section 25 of C.P.Act, 1986 the Commission issued certificate for the recovery of the due from the J.Drs to the Collector of the District and the Collector of the District has got recovered the amount in the manner of Arrears of Land Revenue. Admittedly, the recovery certificates had not been issued in case Nos.351/18, 238/19, 95/20, 242/20, 243/20, 75/21, 76/21, 77/21, 78/21, 94/20, 96/20, 97/20, 98/20, 244/20 and 79/21. In addition to that, the Commission has passed an order on 09.09.2019 to issue recovery certificate in EP Nos.382 to 397/18 on 09.09.2019 and the EP Nos. 94 to 98/20, 242 to 244/20, 75 to 79/21 were not been filed at that time. On that ground also, Section 73 of C.P.C is not applicable to the said cases.
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1. In the C.P.Act, 1986 mode of recovery is stated in Section 25 and 27. It is not at all stated in the said provision of law that the Commission can exhaust the remedies or the Commission can invoke the provisions of the CPC while implementing the provision of Section 25 and 27 of the Act. Therefore, we feel that Section 73 of CPC cannot be applied and the D.Hr are not entitled for rateable distribution in EP Nos. 351/18, 238/19, 95/20, 242/20, 243/20, 75/21, 76/21, 77/21, 78/21, 94/20, 96/20, 97/20, 98/20, 244/20 and 79/21.
1. On the case on hand, the D.Hr had filed an affidavit in respect of his claim for the principal sum of Rs.8,00,000/- (Rupees eight lakhs only) as full and final settlement.
1. Office is directed to issue cheque for Rs.8,00,000/- (Rupees eight lakhs only) to the D.Hr as full and final settlement after he/she been duly identified. Case is closed.
[HON'BLE MR. K. SHIVARAMA]
PRESIDENT
[HON'BLE MS. Renukadevi Deshpande]
MEMBER
[HON'BLE MR. H. Janardhan]
MEMBER
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