1 S.B.CIVIL FIRST APPEAL NO.134/2006 M/s. Devi Agro Industries & anr. Vs. Sri Ganganagar Kshetriya Gramin Bank & anr. Date of Order : 5th January 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.R.K.Thanvi for the appellants Mr.P.K.Lohra for the respondent BY THE COURT: By the impugned decree dated 22.09.2005 the learned Trial Court has decreed the suit for money recovery as filed by the respondent-Bank and held the respondent-Bank entitled to recover an amount of Rs.7,40,609/- together with interest at the rate of 15% per annum compounded quarterly. On 01.03.2006, while admitting this appeal preferred by the defendants, this Court directed stay over execution of the decree upon the appellants depositing half of the decreetal amount. However, later on, the appellants moved an application (IA No.7005/2007) with the submissions that they were ready to deposit the remaining decreetal amount too and upon such deposit the respondent Bank may release the documents lying with it by way of security. This Court by the order dated 13.12.2007 allowed the application so filed by the appellants and directed that upon depositing of the remaining decreetal amount together with 2 interest by the appellants with the Trial Court within a period of three weeks, the respondent-Bank may release the document in question in favour of the appellant; and the amount so to be deposited was directed to be paid to the plaintiff-Bank upon their furnishing an undertaking for restitution in case so required, with interest at the rate of 6% per annum. It is an admitted position that the appellants have deposited the entire decreetal amount. It is further an admitted position that the title deeds of immoveable properties as earlier deposited by the appellants with the plaintiff-Bank have since been released. Now by filing an application (IA No.9631/2008) the appellants have submitted that despite payment of the entire decreetal amount, the respondents have not released the Fixed Deposit Receipt (FDR) bearing No.90897 dated 10.01.2003 in the sum of Rs.2,98,500/- and original bill No.5 dated 15.05.2001 of the Fuel Briquette machine and such documents, according to the appellants, are also required to be returned. The application has been put to stiff opposition on behalf of the respondent-Bank particularly in relation to the FDR dated 10.01.2003. It is submitted on behalf of the respondent-Bank that the title deeds of the property placed with the Bank that were kept as security have already been 3 returned; but, according to the Bank, the appellants are not entitled to insist for return of the original FDR and purchase bills of the machinery. It has been pointed out that the amount referable to FDR was received by the respondent-Bank in the form of subsidy from Khadi and Gramoudhyog Board and was placed in fixed deposit because the appellants failed to fulfill the terms and conditions for claiming subsidy. It has strenuously been contended on behalf of the respondent-Bank that the dispute as to whether the appellants are entitled for such subsidy amount that was received from Khadi and Gramoudhyog Board is yet to be adjudicated upon and at this stage, it cannot be said that the amount lying in fixed deposit belongs to the appellants. Findings of the learned Trial Court particularly in relation to issues Nos.2 and 3 as framed in that regard have been referred and it is submitted that standing such findings, the appellants cannot make a claim towards the amount lying in such fixed deposit. To take into comprehension the stand of the respondent, apposite it shall be to reproduce their submissions as made in paragraph-5 of reply as under:- ''That in reply to para 5 of the application, it is submitted that the FDR worth Rs.2,98,500/-is of the margin money received in the form of subsidy from Khadi Gramodhyog Commission, Mumbai, cannot be released to the appellant because the question regarding entitlement of the appellant to 4 avail subsidy has been adjudicated against the appellant by the learned Trial Court. The detailed submissions in this behalf have already been incorporated in the preliminary objections mentioned to supra. As regards release of the purchase bills of the machinery suffice it to state that the said bills are not liable to be released to the appellant at this stage. When the appellant is pursuing the remedy of appeal before this Hon'ble Court, it cannot be said that the appellant has satisfied the decree passed by the learned Trial Court. The decreetal amount deposited by the appellant was a conditional deposit inasmuch as the appellant has deposited the entire decreetal amount under protest and in the event of appeal being succeeded, the respondent is bound to refund the said amount with interest @ 6% p.a. Thus, in these circumstances, the demand for the purchase bills is not at all tenable. Moreover, the Hon'ble Court while passing the order dated 13- 12-07 has not directed the humble respondent to release purchase bills of the machinery. The appellant has wrongly contended that the humble respondent has disobeyed or circumvented the orders passed by the Hon'ble Court and accordingly, Title Deeds have been released to the appellant. It may not be out of place to mention here that the earlier application dated 13- 10-07 was submitted by the appellant on his own volition and while acceding to this request the order dated 13-12-07 was passed by the Hon'ble Court. Therefore, there is no question of any contempt being committed by the humble respondent. In this view of the matter, the application is liable to be rejected.'' So far the bill of machinery is concerned, this Court is unable to find even a remote justification wherefor the respondent-Bank has chosen to keep hold of the same despite specific order of this Court to return the original documents upon the appellants' making deposit of the entire decreetal 5 amount. In this case, the money recovery suit as filed by the respondent-Bank has been decreed by the Trial Court in toto; and entitlement of the respondent-Bank, whatever, cannot be beyond the decreetal amount. The respondent-Bank has not made any further claim against the appellants over and above the decree in question. When the entire decreetal amount has been paid, of course,subject to the decision of this appeal, the Bank does not appear justified in retaining the machinery bill. It is rather surprising that on one hand the respondent-Bank has released the title deeds that were available with it as security after deposit of the decreetal amount by the appellant but has unnecessarily retained the machinery bill. The same ought to have been released without much ado. The respondent-Bank is directed to return the said machinery bill within 15 days from today to the appellants. So far FDR worth Rs.2,98,500/- is concerned, it appears from the material available on record at this stage that such amount had never been the property of the respondent- Bank but was received by the Bank as a custodian thereof, being the amount of subsidy extended by the Khadi and Village Industries Commission for the appellants; and was meant to be paid to the appellants, of course, by way of crediting the same in their loan account. Even when a dispute 6 is sought to be raised by the respondent-Bank in the fashion that the appellants did not carry out all the requirements particularly of timely maintaining and regulating the loan account; and thereby entitlement of the appellants to the said subsidy amount is sought to be questioned, it is but apparent that such an amount of Rs. 2,98,500/- is not the property of the plaintiff-Bank either. It is, of course, a subject matter of consideration in this appeal, being the contention of the appellants, that the Bank ought to have timely credited the said amount in their account; and consideration of such contention might have a bearing on the amount payable by the appellants to the plaintiff-Bank. It appears that the learned Trial Court has not very specifically made the provision in the decree in question in relation to the said amount of Rs.2,98,500/- and its treatment would remain a matter to be considered in this appeal in the light of the submissions made before the Trial Court and so also in the present memo of appeal coupled with reference to the application under Order XLI Rule 27 CPC as moved by the appellants (IA No.4588/2007) that has been ordered to be considered at the time of final hearing of the appeal. In the facts and circumstances of the case, this Court is not inclined to direct the respondent-Bank to return the said 7 FDR to the appellants but then, the fact of the matter remains is that though the respondent-Bank is retaining the amount under the said FDR (a sum of Rs.2,98,500/-), the same is not the property of the Bank; and, on the other hand, the Bank has already received the entire amount payable under the decree in question, of course, on the condition of restitution with interest at the rate of 6% per annum in the event of success of this appeal. The respondent-Bank has not clarified as to how much of interest has accrued on the said amount placed in fixed deposit and as to what has been done to such component of interest accruing on the said amount? However, leaving all these questions for adjudication at the time of final decision of this appeal, it appears appropriate and hence ordered that the respondent-Bank, when is retaining the amount of Rs.2,98,500/- under the said FDR, should place the same in the name of the appellant No.1 in a fixed deposit fetching maximum interest with itself and to go on crediting interest to such deposit every year. No part of the said amount in fixed deposit and interest thereupon shall otherwise be dealt with in any manner by either of the parties without specific orders of this Court. It shall be required of the respondent-Bank to report to 8 this Court compliance of the requirements of this order with all necessary particulars within 15 days from today. The application (IA No.9631/2008) is disposed of with the directions and requirements aforesaid. (DINESH MAHESHWARI),J. MK