## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN**
**WEDNESDAY, THE 12TH DAY OF JUNE 2013/22ND JYAISHTA 1935**
## **OP(C).No. 1998 of 2013 (O)**
**-------------------------------------E.P. 35/1999 IN OS 43/1996 of SUB COURT,KATTAPPANA.**
**.........**
**PETITIONER(S):**
**----------------------**
**1. ELIAS C.V. ,PROPRIETOR, CHANDANASSERIL INDUSTRIES, PARAKANDOM BHAGAM, KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT.**
## **2. VALSAMMA ELIAS,**
**CHANDANASSERIL INDUSTRIES, PARAKANDOM BHAGAM KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT.**
**BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.G.MANU KRISHNAN**
## **RESPONDENT(S):**
**-------------------------**
**STATE BANK OF TRAVANCORE, A BODY CORPORATE CONSTITUTED UNDER THE STATE BANK OF INDIA (SUNSIDIARY BANKS) ACT 1959, HEAD OFFICE AT THIRUVANANTHAPURAM AND BRANCH AT PAINAVU KARA, IDUKKI VILLAGE, THODUPUZHA TALUK IDUKKI DISTRICT - 685 503.**
**BY SRI.SANTHOSH MATHEW BY SRI.SATHISH NINAN**
**THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**tss**
**OP(C).No. 1998 of 2013 (O)**
**--------------------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS**
**-------------------------------------**
## **EXT.P1: TRUE PHOTOSTAT COPY OF STATEMENT DATED 10/12/2011.**
**EXT.P2: TRUE PHOTSTAT COPY OF THE E.A NO.131/2012 FILED BY THE PETITIONERS.**
**EXT.P3: TRUE PHOTOSTAT COPY OF THE STATEMENT OF OBJECTION SUBMITTED BY THE RESPONDENT.**
**EXT.P4: TRUE PHOTOSTAT COPY OF THE ORDER DATED 26/03/2013 OF THE LEARNED SUB JUDGE.**
**RESPONDENT(S)' EXHIBITS**
**---------------------------------------**
**NIL**
**TRUE COPY**
**P.A. TO JUDGE**
**tss**
## **P.N.RAVINDRAN, J.**
=-=-=-=-=-=-=-=-=-=-=-=-=
## O.P.(C)No.1998 of 2013
=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 12[th] day of June, 2013
## **JUDGMENT**
The petitioners are the defendants in O.S.No.43 of 1996 on the file of the Court of the Subordinate Judge of Kattappana. The sole respondent is the plaintiff therein. The suit instituted by the respondent/plaintiff for realisation of the sum of Rs.4,25,475/- with future interest and costs, was decreed on 23.9.1998. The decree has admittedly attained finality. After the decree attained finality, the respondent bank filed E.P.No.35 of 1999 to recover the amount due under the decree by arrest and detention of the judgment debtors in the civil prison. When the execution petition was filed the amount due under the decree was less than Rs.10,00,000/-. The execution petition was not however expeditiously disposed of with the result that due to passage of time, the amount due under the decree crossed Rs.10,00,000/-.
2. The petitioner thereupon filed E.A.No.131 of 2012 under section 151 of the Code of Civil Procedure, requesting the execution court to hold that the execution petition is not maintainable in view of the provisions contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and to close the execution petition. In the affidavit filed in support of E.A.No.131 of 2012, a
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copy of which is produced as Ext.P2, the petitioners contended that the amount presently due is Rs.52,69,541/- and in view of the provisions contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the execution petition is no longer maintainable in the Court of the Subordinate Judge of Kattappana. He placed reliance on sections 18 and 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the decision of a Full Bench of this Court in **Glenny v. Catholic Syrian Bank Ltd.** [2000 (2) KLT 973]. The respondent decree holder filed objections, a copy of which is on record as Ext.P3, contending that the execution petition is maintainable and that the attempt of the petitioner is only to delay the execution of the decree. The execution court considered the rival contentions and dismissed E.A.No.131 of 2012 by order dated 26.3.2013, a copy of which is on record as Ext.P4. The execution court held that at the time of filing of the execution petition the amount due was Rs.6,93,748/- plus costs Rs.19,437/- and that the decree holder could not have filed an execution petition in any other forum. The petitioners have aggrieved thereby filed this original petition under Article 227 of the Constitution of India, seeking the following reliefs:-
_“(i) Call for the records leading to Ext.P4 order, examine the same and quash the same and allow E.A.No.131/2012 directing stoppage of the proceedings in E.P.No.35/1999 on the files of Sub Court, Kattappana and direct the respondent to_
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_proceed for recovery of the amount decreed in O.S.No.43/96 before the Debts Recovery Tribunal, Ernakulam, in the interest of justice, in tune with Section 19 of the Recovery of Debts Due to Banks and Financial Institution Act._
_(ii) Allow the petitioner to recover the full costs incurred for the institution and conduct of this original petition from the respondent.”_
The principal contention raised in this original petition is that in view of sections 17 and 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the execution petition is not maintainable in the Court of the Subordinate Judge of Kattappana. It is contended that the decree in O.S.No.43 of 1996 can be executed only in the Debts Recovery Tribunal, Ernakulam.
3. I heard Sri.C.Varghese Kuriakose, learned counsel appearing for the petitioner and Sri.Sathish Ninan, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. It is is not in dispute that the claim in the suit was for Rs.4,25,475/- with future interest. As on the date on which E.P.No.35 of 1999 was filed, the amount due under the decree was Rs.6,93,748/- plus costs Rs.19,437/- which is well below the limit of Rs.10,00,000/-. As the suit was decreed on 23.9.1998 and the decree was not satisfied and no payment was made by the judgment debtors/petitioners, the amount due under the decree has escalated to Rs.52,69,541/-. It is this fact which prompted the petitioners to raise the plea that the execution petition is no longer maintainable in the Court of the Subordinate
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Judge of Kattappana. Section 1(4) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 stipulates that the provisions of the Act shall not apply where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institution is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify. The petitioners have no case that the Central Government have issued such a notification. Therefore, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will not apply in a case where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than Rs.10,00,000/-. In the instant case, it is not in dispute that as on the date of the decree, the amount due was less than Rs.10,00,000/- namely the sum of Rs.6,93,748/- plus costs Rs.19,437/-. It necessarily means that the decree was for an amount less than Rs.10,00,000/-.
4. Then the next question is whether by reason of the fact that the amount presently due is more than Rs.50,00,000/-, it can be said that the execution petition is not maintainable in the civil court and whether the decree holder bank should move the Debts Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In my opinion the
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## question is no longer res-integra in view of the decision of the Apex Court in **Punjab National Bank** v. **Chajju Ram** (AIR 2000 SC 2671). In the said decision the Apex Court held as follows:
7. Learned counsel for the respondents submitted that the use of the words 'cause of action' in Section 31 indicated that it is only pending suits which could be transferred. We are unable to agree with this submission. The words 'cause of action' are preceded by the words 'being a suit or proceeding.' Section 31 contemplates not only the transfer of a suit but also transfer of a proceeding which may be other than a suit, like an execution application. Understood in this context, the words 'being a suit or proceeding the cause of action whereon it is based . . . . . .' would mean that in the case of an execution application if the decree is for more than Rs. 10 lakhs, then that is the cause of action or the reason for an application for execution being filed before the Tribunal.
5. The same view was taken by a Full Bench of this Court in **Glenny v. Catholic Syrian Bank Ltd.** (supra) wherein the Full Bench held that the cause of action for determining the forum shall be the amount of the decree and not the claim as originally made in the suit. The Full Bench held that since the ex-parte decree is for an amount exceeding Rs.10,00,000/- the forum is the Tribunal and not the civil court. In the instant case, the decree was for an amount below Rs.10,00,000/-. On the date of filing of the execution petition also the amount due was below Rs.10,00,000/-. As the cause of action for the execution petition is the decree which is for an
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amount below Rs.10,00,000/-, I am of the opinion that section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 can have no application. The court below was therefore perfectly right in holding that the execution petition is maintainable.
I accordingly hold that there is no merit in the instant original petition. It fails and is dismissed.
Sd/-
## **P.N.RAVINDRAN, Judge.**
/true copy/
P.A. to Judge
vpv/rkc
