IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.4133 of 2004 Between: M/s. Indian Bank, Hyderabad. ... PETITIONER AND M/s. Suryamukhi Enterprises and 10 others. ...RESPONDENTS Counsel for the Petitioner : Mr. P. SHIV KUMAR Counsel for the Respondents: Mr. C. RAGHU The Court made the following: ORDER: Plaintiff in O.S.No.120 of 1986 filed this revision against the orders of the executing Court dated 14.06.2004 in E.P.No.124 of 2002. The said EP was filed by the judgment debtor/defendant, who had deposited excess amount than the amount decreed in the suit filed by the petitioner herein, contending that he is entitled to further refund of Rs.5,28,687/- from the petitioner-bank with interest. 2. For the sake of convenience the parties are referred to as they are arrayed in the suit. The facts, in brief, are as follows. 3. The plaintiff – bank filed a suit O.S.No.120 of 1986 before the II Additional Judge, City Civil Court, Hyderabad, against the respondent for recovery of a sum of Rs.15,38,683/-. The respondent had deposited a sum of Rs.17,00,000/- on 24.02.1987 into the Court pending the suit and since the claim of the plaintiff to the extent of Rs.14,00,000/- was not disputed, the plaintiff was permitted to withdraw the said Rs.14,00,000/- pending the suit. Later, the suit came to be decreed on 23.09.1992 whereunder the interest was decreed on the suit claim at 15% per annum as against 18% as claimed by the plaintiff. Consequently, the amount to which the plaintiff was entitled to under the decree stood reduced and thereby, after adjusting the said decretal amount, a sum of Rs.3,39,363/- was found lying in excess to the credit of the plaintiff-bank. 4. Aggrieved by the decree of the trial Court reducing the interest the plaintiff-bank preferred an appeal being CCCA.No.1 of 1993 before this Court and by way of an interim order in CCCAMP.No.941 of 1993 in CCCA.No.1 of 1992 dated 28.04.1993 this Court directed that the said amount of Rs.3,39,363/- deposited by the defendant and lying in deposit in the branches of State Bank of Hyderabad and Andhra Bank at Balanagar to be transferred to the credit of the petitioner/plaintiff’s-bank account in its branch at Abids together with accrued interest and on such transfer the plaintiff-bank was directed to keep the said amount in a separate deposit till the disposal of the appeal and at the time of disposal of the appeal appropriate orders will be passed with regard to the said deposited amount. Consequently, therefore, the said amount together with interest aggregating to Rs.5,94,548/- available as on 31.03.1994 was deposited with the plaintiff-bank in a separate account. Later, the appeal in CCCA.No.1 of 1993 was allowed in part by judgment and decree of this Court 15.06.2001 whereunder the decree of the trial Court was confirmed on all other aspects except that the rate of interest was enhanced from 15% to 18%. The decree passed by this Court states as follows: 1. that the impugned judgment and decree of the lower Court be and hereby is set aside granting rate of interest on loan at 18% per annum with quarterly rests. 2. that the parties are directed to settle the accounts in accordance with the decree of this Court and reimburse the amounts along with interest if any paid excess; 3. that save as aforesaid the decree of the trial Court stands confirmed on other aspects; and 4. that there be no order as to costs in this appeal. 5. Based on the said decree, the parties have settled the amounts on 21.08.2002. According to the petitioner/decree holder the respondent is liable to pay a further sum of Rs.2,02,901/- in view of the modification of rate of interest by this Court in appeal and the said amount has to be set off or adjusted from out of the amounts of the respondent/defendant deposited with the plaintiff-bank as mentioned above. 6. According to the plaintiff-bank they have fully adjusted the said amount of Rs.5,94,548/- deposited in the separate account by deducting a sum of Rs.2,02,901/- payable by the defendant to the plaintiff-bank and has arrived at the balance amount payable with interest to Rs.6,26,931/-. The plaintiff-bank, therefore, has sent the said amount of Rs.6,26,931/- vide bankers cheque along with the covering letter dated 23.08.2002 stating that the said amount is sent in full and final settlement of the amount payable by the plaintiff-bank to the respondent/defendant and the respondent has acknowledged the same. 7. According to the respondent/defendant upon giving appropriate interest on the deposited amount lying with the plaintiff-bank in separate account up to the date of settlement of account and also by calculating the amount payable by the decree holder up to the date of settlement, the respondent/defendant would be entitled to a sum of Rs.11,55,618/- and after deducting the sum of Rs.6,26,931/- paid by the plaintiff-bank, the respondent/defendant is still entitled to a further sum of Rs.5,28,687/-. Since the said balance amount was not paid by the plaintiff-bank, the respondent filed the aforesaid EP. 8. After both sides have made submissions before the executing Court and after looking into the statement of accounts on either side, the executing Court was of the view that the respondent/defendant is entitled to refund of said Rs.5,28,687/- and therefore, directed the plaintiff-bank to pay the said amount with interest at 8% per annum with quarterly rests from the date of EP till realization. Questioning the said order, the present revision is filed by the plaintiff-bank. 9. Heard both sides. 10. Learned counsel for the petitioner submits that the bank is justified in paying an amount of Rs.6,26,931/- after duly giving credit to the amount receivable to the petitioner-bank from the respondent and the respondent having accepted the said refund of Rs.6,26,931/- in full and final settlement of the entire claim of the respondent, the respondent is not entitled to approach the executing Court and seek further amounts. He submits that the deposited amount and the suit amount has been duly given credit to relying upon the calculation memo attached to their covering letter dated 23.08.2002, which mentions that the balance amount is being paid as per the enclosed statement of accounts towards full and final settlement. He submits that if at all the respondent was disputing the said amount he ought to have recorded a protest and having received the amount, the respondent is estopped from approaching the executing Court for making a further claim. 11. Learned counsel for the respondent, however, submits that the execution petition had to be filed by the respondent/defendant to implement the orders of this Court in appeal and the entitlement of the respondent to the said amount flows out of the terms of the interim and final orders of this Court in CCCA.No.1 of 1993 referred to above. It is also contended that while the bank has taken the respondent’s amount lying in a separate account only as on 31.03.1994, the amounts payable by the respondent is calculated as on 21.08.2002 i.e. the date of settlement and the same is deducted from Rs.5,94,548/- lying to the credit of the defendant as on 31.03.1994. The uniform adjustment and awarding of interest on the amount receivable by the bank and amount receivable by the respondent was contemplated under the final orders of this Court in CCCA.No.1 of 1993. The impugned order, therefore, is fully justified as it gives effect to the decree of this Court. 12. I have considered the aforesaid submissions and it is clear from a reading of the decree of this Court that the direction to settle the accounts in accordance with the decree and reimburse the amounts payable to the defendant had to be given effect to. The interest awarded by this Court in the appeal was at 18% per annum and the same had to be calculated in respect of the amounts payable by and against the petitioner-bank as on the date of settlement i.e. 21.08.2002. The petitioner-bank, therefore, ought to have calculated interest on the respondent’s deposited amount of Rs.5,94,548/- as on 21.08.2002 and after deducting Rs.2,02,901/- payable by the respondent to the petitioner-bank as on 21.08.2002, the balance amount ought to have been refunded to the respondent. The executing Court rightly appreciated the aforesaid aspect and directed refund of balance amount of Rs.5,28,687/-. 13. The contention of the learned counsel for the petitioner that there is an estoppel against the respondent because they have received an amount of Rs.6,26,931/- along with covering letter mentioning that the said amount is towards full and final settlement, is not sustainable inasmuch as the decree of this Court gives rise to an occasion to both parties against each other to recover the amounts in terms of the decree, while the petitioner has enforced its right as per the decree. While petitioner is entitled to claim further amount of Rs.2,02,901/- from the respondent as on 21.08.2002, the respondent/defendant is also entitled to claim interest on Rs.5,94,548/-, which is the excess deposit made by the respondent, at the same rate of interest, as on the date of settlement of account i.e. 21.08.2002. Since the executing Court was concerned with the execution of decree, the question of estoppel by conduct would not apply. The impugned order is, therefore, fully justified and warrants no interference. The civil revision petition is accordingly dismissed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 30, 2010 DSK