SAMIKSHA BHATTACHARYA,  MEMBER 

Today is fixed  for passing order in respect of affidavit of compliance filed by J.drs.

Ld. Advocate for  the J.drs has filed affidavit of compliance  by which the J.dr No. 2 has submitted that as per final order/judgment dated 01.08.2022 this Commission directed the J.drs No. 1 to 4 to refund the deposited amount of Rs.30,79,160/- along with interest @  9 % p.a. from  the date of respective  deposit till the actual payment along with  Rs.10,000/- as litigation cost within 45 days from the date passing the order. J.ders No. 1  to 4, in complainace  with the order dated 01.08.2022, have sent two cheques being No. 335852 dated 06.09.2022 in favour of  D.hr No. 1 amounting to Rs.15,39,580/- and another cheque being No. 335853  dated 06.09.2022   in favour of D.hr No. 2 amounting to Rs.15,49,580/-  along with a forwarding letter.  But the said envelope containing the letter and aforeswaid two cheques was returned with postal endorsement “door locked and unclaimed”. Copy of the same has  already been filed before this Commission. Therefore, only the  interest part is due and for the same an Interlocutory Application  has been filed  before this Commission being No. IA/216/2023 which was pending at the time of filing  affidavit of compliance by the J.drs.

The J.dr No. 2 on  behalf of the J.drs  has further mentioned in the Affidavit of Compliance that the  decree-holders by letter dated 04.04.2023 informed that the interest  amount of Rs.19,72,487.30/- is due and the interest has been calculated till 06.02.2022 the J.drs have already tendered the principal amount with litigation cost within the stipulated period as per order dated 01.08.2022. Therefore, the J.drs are liable to pay interest up to 06.09.2022. The calculation sheet has been annexed to that effect.

Thereafter,  the J.drs have handed over  two fresh cheques being No. 077386  dated 09.02.2023 amounting to Rs.15,39,580/-  drawn on  IndusInd Bank, Laketown Branch in favour of D.hr No. 1 and another cheque being No. 077387 dated 09.02.2023 amounting  to Rs.15,39,580/- drawn on IndusInd Bank, Laketown Branch in favour of D.hr No. 2 which is reflected in order No. 2 dated 09.02.2023. Thereafter, the J.drs have tendered a cheque  being No. 761057  dated 03.08.2023  drawn on IndusInd Bank, Laketown Branch, in favour of the D.hr No. 1 amounting to Rs.2,00,000/- and  J.drs have tendered another cheque being No. 761100 dated 06.09.2023 drawn  on  IndusInd Bank, Laketown Branch Laketown Branch  for an amount of Rs.16,65,898/-. Hence the J.drs have prayed for disposal of the execution case with full satisfaction.

The D.hrs have filed the objection against the affidavit of compliance filed by J.drs.

Ld. Advocate for the D.hrs  has submitted before us that the decree-holders are service holders/teachers and they leave for school from their residence at 9:00 am every day and continue their service till 4:30 pm at New Barackpore Colony Girls’ High School and Brahmo Boys’ School on regular basis and  J.drs have knowledge about the same. Therefore, it is not the  fact that the D.hrs refused to  accept the postal envelope which has been returned with remark “unclaimed”. There was no direction upon the J.drs to pay the principal amount first. The direction was given to pay the whole amount, not in installments. Therefore, the J.drs cannot claim  that they are liable to pay interest up to 06.09.2022. The statements made by J.drs No. 1 to 4 are concocted and denied by the  D.hrs. Therefore, J.drs are liable to   pay the total decretal amount with interest till 09.02.2023 out of  which they paid Rs.18,65,898/- and therefore, there is  due amount of Rs.1,06,589/- till date. Therefore, the D.hrs have prayed for  rejection of the affidavit of compliance filed by J.drs  with  direction upon the J.drs to pay rest due amount of  Rs.1,06,589.

Upon hearing the parties and on perusal of affidavit of compliance filed by J.drs and objection thereto  it appears that the envelope containing two cheques mentioned earlier with the forwarding letter was returned with postal endorsement “door locked  on 07.09.2022 with postal endorsement “intimation served”  on 08.09.2022 and with postal endorsement  “unclaimed” on 09.09.2022. Therefore, it is the fact that the cheques cannot be delivered  to the D.hrs due to their absence. But the J.drs cannot be held liable due to the  absence  of theD.hrs at their residential address which was provided by the D.hrs themselves.

The  J.drs have sent the principal amount as per final order dated 01.08.2022 passed by this Commission within the stipulated period. If the D.hrs were present at that time they could receive the principal amount within the stipulated period as per final order dated 01.08.2022.  It is true that the J.drs were liable to pay the principal amount along with interest.  Though the J.drs have not paid the interest amount from the date of respective payment till the date of refund they have calculated the interest @ 9% p.a. from the date of payment till 06.09.2022 i.e., the date of issuance of the cheques. They have paid the interest amount in following manner:

The above statement was filed by the J.drs. On the other hand, the D.hrs are filed the statement of accounts which was calculated up to the date of receiving Rs.30,89,160/-.

Upon going through both the statements it is crystal clear that J.drs have paid the amount up to  06.09.2022 from the date of each payment along with interest. Since the envelope, containing the cheques towards principal decteral amount,  was returned the J.drs have handed over  two cheques being No. 077386, 077387 both  dated 09.02.2023 in open  Commission.

Thereafter, the J.drs have handed over two cheques  being No. 6761100 and 761057 towards interest amount till 06.02.2022 on which date two cheques were issued towards principal amount but returned due to non-availability of the D.hrs. If the D.hrs can  receive the two cheques on 06.09.2022 then the D.hrs can claim the amount  towards interest up to  further  date.  But the cheques were returned to the sender with postal remark “door locked ” on 07.09.2022,  with postal remark “intimation served” on 08.09.2022  and with postal remark “unclaimed” on 09.09.2022. The final order was passed on 01.08.2022   and decretal amount was to be paid within 45 days from the date of receipt of the order. We do not know what is the date of the receipt  of the order by the J.drs. From the  Execution  Application it appears to us that D.hrs have received the  copy of final order on 03.08.2022. Therefore, if the  date of receipt of the order of the J.dr is the same date then the stipulated period          to comply with the order by the J.drs would be tentatively 17.09.2022. From the record, it appears that two cheques were issued on 06.09.2022 towards principal decretal amount which were returned due to unavailability of the D.hr at their residence.  If the said two cheques issued on 06.09.2022 were received by the D.hrs, then it cannot be ascertained  that the J.drs may not tender the rest decretal amount within 17.09.2022 i.e., the stipulated  period. The D.hrs have not bothered to contact the concerned post  office with assumption that they would get interest @ 9% p.a. for the delay. The D.hrs  have not contacted with the post office though intimation was served on 08.09.2022. Instead of contacting with the concerned  post office upon receipt of intimation, the D.hrs  filed the   instant Execution case on 28.09.2022 before this Commission and the date  was fixed for admission hearing on 18.10.2022. On 18.10.2022, this Commission has been pleased to  issue notice upon the J.drs fixing 09.02.2023 for S/R and  appearance. Upon  receiving the notice  of the execution case, the J.drs have  appeared through their Ld. Advocate  and handed over  two cheques  in favour of D.hr No. 1 and D.hr No. 2 amounting to Rs.15,49,580/- and Rs.15,39,580/- respectively.  Thereafter, on 04.08.2023, J.drs have paid Rs.2,00,000/- and  Rs.16,65,898/- on 08.09.2023 both through cheques.

As per above discussion and the  statement of accounts furnished by both the parties towards decretal amount along with interest, we have no hesitation to hold that J.drs have complied with the order in full. The  decretal amount was not paid in time due to unavailability of the D.hrs  at their residence on 07.09.2022, 08.09.2022 and due to their non-appearance before the concerned post office on 09.09.2022 after intimation was served by the post office concerned. The J.drs have sent the cheques towards decretal amount in time, therefore, it does not  mean that J.drs have  failed to pay the decretal amount  in stipulated period. In such situation, we think there is no need to drag with the present Execution Case.

Accordingly, the present Execution case stands disposed of.