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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF DECEMBER, 2013 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.6841/2012 (GM-AC)
BETWEEN:
M/s. National Insurance Company Ltd., V.V. Road, Mandya, Now represented by its Regional Manager, Regional Office situated at Subhram Complex, No.144, M.G. Road, Bangalore – 560 001.
…PETITIONER
(By Smt. Geetha Raj, Adv.)
AND:
Mr. Boraiah,
S/o. late Masanaiah,
Aged about 70 years.
Mrs. Siddamma,
W/o. Boraiah,
Aged about 60 years.
Both are residing at Santhkasalagere Village,
Kothathi Hobli,
Mandya Taluk.
…RESPONDENTS
(By Sri D.M. Mahesh, Adv.)
2 This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 5.1.2012, passed by the Court of Additional Civil Judge & MACT, Mandya in Execution Petition No.3/2010 as Annexure-A.
This petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:
ORDER MVC No.1357/2005 filed against the petitioner and another by the respondents before the MACT at Mandya was allowed on 06.12.2005. An award directing petitioner to pay compensation amount of `2,25,000/- with interest at 8% per annum from the date of petition till realization was passed. Pursuant to the said award the petitioner deposited `3,05,422/- in the MACT at Mandya on 21.04.2006.
Claimants/Decree Holders, filed E.P.No. 3/2010 claiming balance amount of `22,128/-. Petitioner/ Judgment Debtor, filed a Memo of calculation on 24.02.2011 and deposited `3,528/- towards full discharge of the Award dated 06.12.2005. The Office having put up
3 a note that there is outstanding balance of `2,752/-as on 06.07.2011, the Execution Court passed an order of arrest on 05.01.2012 against the Manager of the petitioner - company. Questioning the said order of arrest, this writ petition was filed on 29.02.2012.
Smt. Geetha Raj, learned advocate, contended that the award was for payment of `2,25,000/- with interest at 8% per annum. The interest when calculated was found to be `89,358/-. By deducting TDS amounting to `8,936/-, a sum of `3,05,422/- was deposited in the MACT at Mandya under a cheque dated 31.03.2006 and the TDS amount was remitted under separate cheque dated 31.03.2006. Balance amount payable having been found to be `3,528/-, was deposited on 15.02.2011 and there being full satisfaction of the award, the Court below has mechanically ordered issuance of arrest warrant against the Manager of the petitioner, in utter disregard of procedure laid down under S.51 r/w Order 21 Rules 37 and 38 CPC. She further submitted that there being no
4 application of mind and non-consideration of record of the case, the impugned order, which is bereft on any reason, warrants interference.
Sri. D.M. Mahesh, learned advocate for the respondents, on the other hand submitted that the award having not been satisfied, Execution Case No.3/2010 was filed and the J.Dr. having failed to furnish the particulars with regard to the full satisfaction of the Award, the Court below is justified in ordering issue of arrest warrant against the J.Dr., vide order dated 05.01.2012.
S.194(A)(3)(ix) of the Income Tax Act (for short ‘the Act’) mandates that when the interest component exceeds `50,000/-, there is a duty to deduct TDS, to an extent of 10.3% of the interest component. In default, petitioner becomes liable to pay the said amount, interest and penalty, to the Income Tax Department under S.201 of the Act. In Execution Case No.3/2010, the decree amount was shown as `2,25,000/- and interest from 21.01.2001 to 07.06.2006 at 8% per annum i.e.,
5 `96,900/-. Petitioner / J.Dr.No.2 having deposited `3,05,422/-, the balance amount claimed was `16,478/-. Further interest from 07.06.2006 to 07.06.2010 on `16,478/- was claimed at `4,598/- i.e., in all `21,076/- with advocate fee of `1,000/-. The balance was shown as `22,128/-. By a memo dated 24.02.2011, the particulars of the deposit of `3,528/-, towards full satisfaction of the award amount was furnished by J.Dr.No.2. Apparently, the TDS amount of `8,936/- deducted in terms of the provision under S.194(A)(3)(ix) of the Act has not been taken into account. The interest at 8% per annum was allowed on `2,25,000/- from 20th January 2010 till the date of deposit. The Decree Holder claimed interest of `4,928/- on the balance amount of `16,478/- i.e., contrary to the terms of the award. The Execution Court without verifying and satisfying itself as to whether any balance amount is due, has mechanically ordered for issue of arrest warrant against the Manager of the petitioner vide order dated 05.01.2012. There is merit in the contention of Smt. Geetha Raj, that the Execution Court has acted with
6 material irregularity in ordering the issuance of arrest warrant against the Manager of the petitioner. The provision under S.51 of IPC has not been kept in view and the impugned order has been mechanically passed, which being illegal is unsustainable.
In the result, the writ petition is allowed and the impugned order is quashed. The Execution Court is directed to examine afresh the record of the case and pass orders. Contentions of both parties are kept open. Both parties are at liberty to file fresh memo of calculations in the execution case. No order as to costs.
Sd/-
JUDGE
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