Phalguni Das vs Tapas Dutta

J .M.Malik, J 1. Counsel for the petitioner/Judgment Debtor was present. Arguments were heard from him, on 11.05.2015. The respondent/ Decree Holder, Sh. Tapas Dutta, is an Advocate and appears in the Commission, quite late, whenever the case is called. Consequently, on 11.05.2015, we waited for him, till 4.00PM and reserved the case for orders. We waited for him for three days, but he has not turned up. Consequently, we are to announce the judgment on 14.05.2015.

A bare perusal of the order passed by the State Commission clearly goes to show that it does not stand the scrutiny of law. We had passed the order in RP 1423/2012 and RP 2181/2012, filed between the same parties, on 15.07.2013, with the following observations : - "3. Although, the ex -parte proceedings were correctly taken, yet review petition decided by the State Commission was not maintainable. The State Commission has no power to decide the review petition.

After hearing the counsel for the parties, we hereby modify the order of State Commission and direct that the respondent would pay all the amount which he has received form the complainant which will also include the amount which was retained by the respondent for some time, with interest @ 12% per annum from the date it was deposited till its realization. The amount already paid to the petitioner shall be adjusted. It is also brought to our notice that the petitioner has asked for the refund. He has never prayed that house should be allotted in his favour. We see that now the value of the house/plot has increased by leaps and bounds. Therefore, we have awarded a wee bit more interest in his favour. Moreover, a Fabian policy to feather one''s own nest is fully depreciated.

It is also brought to our notice that the petitioner had to approach the High Court and thereafter Supreme Court. Keeping in view all the facts and circumstances of the case, we grant Rs.1,00,000/ - towards litigation charges, harassment, mental agony etc. in favour of the petitioner/complainant which be paid to the complainant within 75 days otherwise it will carry interest at the rate of 12% p.a. till its realization. The review petition filed before the State Commission is set aside in its entirety".

WE have gone through the impugned judgment and the statement of accounts submitted by the respondent - Mr. Tapas Dutta. S.L.P. was preferred before the Hon''ble Supreme Court but the same was dismissed. The Apex Court had directed to pay the due amount to the respondent within one month from the date of order by demand draft from a Nationalized Bank. The respondent has mentioned that one cheque was issued by the judgment debtor on 10.12.2013, which was dis -honoured on the ground of insufficiency of fund. It is thus clear that on that count, the decree holder is at liberty to file a case U/s 138 of the NI Act. The Decree Holder can also move before the Hon''ble Supreme Court for further directions. The order passed by this Commission is clear. The Decree Holder is entitled to 12% interest till its realization. This is made clear that the respondent is not entitled to compound interest. As far as the statement filed by him is concerned, he is entitled to interest @12% p.a., simpliciter. Consequently, the statement of account given by him appears to be incorrect and on the contrary, the statement of account given by the judgment debtor/petitioner appears to be correct.

CONSEQUENTLY , we set aside the order passed by the State Commission. It is difficult to fathom, why did the State Commission allow the respondent, the compound interest, instead of simple interest. In case, the order of this Commission has not yet been complied with, petitioner is given liberty to approach the Executing Court again and get the decree executed, as per the order passed by this Commission and the Hon''ble Supreme Court.

THE Execution Revision Petition, accordingly stands accepted.