Execution Case No. 7 of 2000 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10149 of 2011 ====================================================== Mahesh Kr.@ Mahesh Kr.Pansari, son of Late Madan Lal Pansari, proprietor of Pansari Automobiles, Purnia, resident of Mohalla-Durgabari, Police Station-K.Hat, District-Purnia .... .... Petitioner/s Versus 1. The Bihar State Road Transport Corporation, Transport Building Patna 2. Managing Director, Bihar State Road Transport Corporation, Transport Building, Patna 3. Divisional Manager, Bihar State Road Transport Corporation, near K.Hat Police Station, Police Station-K. Hat District- Purnia. .... .... Respondent/s ============================================== with Civil Writ Jurisdiction Case No.11420 of 2011 ============================================== 1. Bihar State Road Transport Corpn Through Its Chairman Parivahan Bhavan, Bir Chand Patel Path, Patna, Bihar 2. Managing Director, Bihar State Road Transport Corporation, Parivahan Bhavan Bir Chand Patel Path, Pat. 3. Divisional Manager Bihar State Road Transport Corporation Near K. Hat, P.S. K. Hat, Dist. Purnea. Versus 1. Mahesh Kumar Pansari Late Madan Lal Pansari Proprietor Of Pansari Automobiles, Purnea, R/O Durga Bari, P.S. K. Hat, Dist. Purnea. .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : (In CWJC No.10149 of 2011) For the Petitioner/s : Mr. Rajeeva Roy & Mr.Makardhwaj Upadhyay,Advocates For the Respondent/s : Mr. Prabhat Kumar Verma, Sr. Adv. & Mr. Nand Kumar Singh (In CWJC No.11420 of 2011) For the Petitioner/s : Mr. Prabhat Kr. Verma, Sr.Advocate & Mr. Nand Kumar Singh For the Respondent/s : Mr. Rajeeva Roy 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 21 10-09-2013 1. In both these applications filed under Article 227 of the Constitution of India, the respective petitioners are aggrieved by an order dated 6.1.2007 passed in Money Execution Case No. 7 of 2000 by learned Sub-Judge-Ist, Purnia. The money execution case arises out of money Suit No. 4 of 1997 which was disposed of by judgment and decree dated 27.3.2000. The petitioner of CWJC No. 10149 of
Legal Reasoning
2011 was the plaintiff in the said money suit whereas, the Bihar State Road Transport Corporation, Patna and its Officials who are petitioners in CWJC No. 11420 of 2011 were defendants in the said suit. Thus, both the plaintiffs as well as the defendants of the said money Suit No. 4 of 1997 are aggrieved by the impugned order dated 6.1.2007 passed by the learned Sub Judge-Ist, Purnia in the said money Execution Case No.7 of 2000 and have approached this Court under Article 227 of the Constitution of India. These two applications have, therefore, been heard together and
Decision
are being disposed of by a common order. 3 2. I have heard Mr. Rajeev Roy, learned counsel appearing on behalf of petitioner in CWJC No. 10149 of 2011 who represents respondents in CWJC No. 11420 of 2011. I have also heard Mr. Prabhat Kumar Verma, learned Senior Counsel appearing on behalf of Bihar State Road Transport Corporation, Patna and others who are respondents in CWJC No. 10149 of 2011 and petitioner in CWJC No. 11420 of 2011. The parties are being described in the present order as per their party position in CWJC No. 10149 of 2011. 3. Relevant facts of the case are short and simple. The petitioner is proprietor of Pansari Automobiles and he supplied spare parts of buses to the respondent- Corporation between 2.4.1993 to 31.3.1995 on credit. He is said to have submitted his bills on 10.5.1993 and on subsequent dates against supply of such materials. The petitioner was paid a sum of Rs.77,900/- against such supply of different dates as part payment. The petitioner brought a suit vide Money Suit No. 4 of 1997 for realization of a sum of Rs. 1,25,285/- being the price of the materials 4 supplied by the petitioner to the respondents with interest at the rate of 18% per annum quarterly rest till realization. A written statement was filed by the respondents in the said money suit in which the respondents admitted the claim of the plaintiff to the tune of Rs. 1,08,064/-. The suit was decreed on admission under Order XII Rule 6 of the Code of Civil Procedure ( hereinafter referred to as the „Code‟) and the respondents were directed to pay a sum of Rs. 1,08,064/- only with interest at the agreed rate till the date of payment vide judgment dated 27.3.2000. Non-payment of decreetal amount, led the petitioner to file a money Execution Case No. 7 of 2000 before the Sub-Judge-Ist, Purnia whereupon the respondents (judgment debtor) paid the principal amount of Rs. 1,08,064. As regards interest, the respondents calculated the same from the date of judgment i.e. 27.3.2000 till the date of payment i.e. 4.9.2001 which came out to be Rs. 31,252/-. A cheque was accordingly, filed for a sum of Rs. 31,252/- in the Court for payment to the petitioner. The petitioner, however, refused to accept the said cheque. 4. It appears that services of Chartered 5 Accountant were taken, thereafter, under the orders of the Court for the purpose of calculating interest who submitted a calculation chart on 30.6.2006. The Chartered Accountant calculated the interest from the date of the institution of the money suit with effect from 6.2.1997 till payment i.e. 4.9.2011. Petitioner raised an objection claiming that he was also entitled for interest from the date when the amount became due till the date of the institution of the Suit. 5. After considering the petition and objections filed by the contesting parties, the Executing Court vide the impugned order dated 6.1.2007 directed the respondents to pay interest at the agreed rate from the date of institution of the money suit. This is to be noted, as would appear from the impugned order that the Court below, while directing respondents/judgment debtors to pay a sum of Rs.1,33,911/- observed that if they had any objection to be raised against such calculation, the same must be raised by next date, failing which it would be presumed that they did not have any such objection. The petitioner approached this Court against the said order dated 6.1.2007 by filing 6 Revision petition under Section 115 of the Code, which was subsequently, by an order dated 20.5.2011, permitted to be converted into a proceeding under Article 227 of the Constitution of India. The respondents also filed a civil revision application which too was ordered to be converted in to a proceeding under Article 227 of the Constitution of India vide an order dated 20.5.2011. This is how the two applications under consideration are before this Court. 6. The dispute in the present case is as regards the admissibility of interest in terms of judgment and decree dated 27.3.2000. This is to be noted that the judgment was passed under Order XII Rule 6 of the Code, in view of the admission made in the written statement. From the impugned order it appears that the respondents had admitted a sum of Rs.1,08,064.50 payable to the petitioner in the written statement in reply to an assertion made in the plaint. The claim of the petitioner is that this amount of Rs.1,08,064/- was payable to him on 3.3.1995 i.e. till the date when the materials were supplied to the respondents. His claim, therefore, is that as per the judgment and decree he 7 became entitled for interest at agreed rate of 18% per annum quarterly rest from 3.3.1995 itself till realization of the amount. According to the petitioner, he is entitled for interest at agreed rate with quarterly rest for the period 3.3.1995( when the amount became due) to 5.2.1997 (when the suit was filed) and from 27.3.2000 i.e. the interest pendente lite and also for the period after passing of the judgment till actual realization of the decreetal amount. The petitioner is thus, aggrieved by the order of executing Court, whereby the interest on principal sum prior to filing of the suit has been denied, which according to him was granted in the judgment and decree. The case of the respondent i.e. Bihar State Road Transport Corporation, Patna, on the other hand, is that the petitioner is entitled for interest at agreed rate from the date of judgment and decree. The challenge to impugned order is on the basis that as the decree is silent with respect to further interest from the date of decree to the date of payment or other earlier date, it would be treated that the same has been refused. 7. Mr. Rajeeva Roy, learned counsel appearing 8 on behalf of the petitioner has placed heavy reliance on a Supreme Court Judgment reported in ( 2002) 1 SCC 367 (Central Bank of India Vs. Ravindra ) in order to contend that the amount of interest which the amount of goods supplied earned as per the agreed rate became amalgamated with the principal amount and it capitalized as principal sum on the date of the institution of the suit. On the strength of the said judgment, he has submitted that in view of the fact that the judgment and decree was passed on admission with interest at agreed rate i.e. 18% per annum quarterly rest, the petitioner was entitled for calculation of principal sum adjudged from the date of the institution of the suit i.e. the amount admittedly payable on 31.3.1995 i.e. the date of last supply till the date of the institution of the suit. 8. Mr. Prabhat Kumar Verma, learned Senior Counsel appearing on behalf of Bihar State Road Transport Corporation, Patna, on the other hand, submits that the Court wrongly allowed interest pendente lite in an execution proceeding which was not granted in the money 9 suit. He submits that in the absence of any specific decree on this point, it was incompetent for the executing Court to have asked the Corporation to pay interest pendente lite . Countering submissions made on behalf of the petitioner, he submits that the suit was filed for realization of a sum of Rs. 1,25,285/- with interest at the rate of 18% per annum. He submits that the petitioner could not claim any amount over and above the amount claimed in the plaint on the date of the institution of the suit. He submits that the petitioner in his plaint did not claim capitalization of interest with principal sum on the date of the institution of the suit. He further submits that the trial Court by the judgment decreed the suit with a direction to pay sum of Rs. 1,08.064.50 with interest at the rate till the date of payment. The decree did not specify that the petitioner would be entitled for interest for the period during which the suit remained pending nor for the period prior to the institution of the suit. He submits that no Court in execution of the said money decree can go beyond what has been granted in the judgment and decree of the trial Court. 10 9. It is true that the Supreme Court in case of Central Bank of India ( supra), reliance upon which has been placed by Mr. Rajeeva Roy, while interpreting Section 34 of the Code has held that interest can be capitalized on the analogy that the interest falling due on the accrued date and remaining unpaid partakes the character of amount advanced on that date. The Court held that the capitalization method is founded on the principle that borrower failed to make payment though could have made and thereby capitalized and rendered himself a defaulter. 10. Before considering the rival submission it has to be kept in mind that the Court in exercising jurisdiction under Article 227 of the Constitution of India testing the correctness of the order passed by the learned executing Court. The duty of the learned Executing Court is to implement the judgment and decree passed by learned trial Court as it is. Correctness or lacuna in the judgment of the trial Court is not required to be gone into. Neither the Executing Court nor this Court would supply anything to such judgment and decree which has attained finality. This 11 Court is required, therefore, to test the impugned order from the point of view as to whether learned Executing Court has interpreted the judgment and decree of the trial Court as it is. The Executing Court can neither go behind nor beyond the judgment and decree of the trial Court. The Executing Court can direct payment of interest if such interest has been awarded by the trial Court and will certainly declined if there is no such direction. The operative portion of the judgment passed in money suit by the learned Sub Judge-5th, Purnia which has been annexed as Annexure-1 in CWJC No. 11420 of 2011 passed under Order XII Rule 6 of Code reads as follows:- “4. In response of summon, the defendants appeared and a W.S. has been filed on behalf of all the defendants which has been verified by Maheshwar Prasad, Divisional Manager, B.S.R. T.C. Purnia. In this W.S. the claim of the plaintiff has been admitted except the account has been challenged. It is pleaded in para 15 of this W.S. that the plaintiff is wrongly claiming Rs. 1,25,285/- and the dues is to the tune of Rs. 1,08,964.50 paise only as per audit report of the departmental senior auditor. Para 1,2 of the plaint have been admitted in para 3 and 4 of this W.S. and it is also admitted that the tenders were used to be invited from the office of defendant no.3 for supply of motor parts and plaintiff also used to submit his quotations. Para 4 of the plaint which is terms and conditions of the agreement agreed by plaintiff and defendant 12 no.3 has been accepted in para 6 of this W.S. Averments of para 5 and para 6 of the plaint have been admitted in para 7 and 8 of w.s. Averments of Para 9 and 10 that letters were sent to defendant no.3 for making payment have been admitted in para 11 of para 11 of w.s. Averments of para 11 of the plaint regarding pleaders notice have also been admitted in para 12 of this w.s. In para 16 it is pleaded that after that after getting allotment of fund from head-quarter the due amount of Rs. 1,08,064/- 50 paise will be paid to the plaintiff. In para 17 it is pleaded that the defendants are ready to pay actual, valid bill amount. therein that as 5.A petition was filed on behalf of the plaintiff on 9.3.2000 mentioning the defendants have admitted the claim of the plaintiff to the tune of Rs. 1,08,064.50 paise with compound interest thereon at the rate of 18% quarterly rest so the suit be decreed on this amount only as the plaintiff doed not want to proceed with respect to balance amount of Rs. 17,220.50 paise and thus judgment on admission be praying that the delivered. In the result this suit is decreed on admission under order XII Rule 6 C.P.C. The defendants do pay to the plaintiff the sum of Rs. 1,08,064.50 paise only with interest of the agreed rate till the date of payment within 30 days from this judgment. No order as to cost.” 11. From reading of the said judgment it appears that there is no specific direction that the petitioner will be entitled for interest for the period prior to the institution of the suit or for the period during which the suit 13 remained pending. Admittedly, the suit was valued at Rs. 1,25,285/- at the time of institution which value was mentioned in the Civil Revision application also which was subsequently converted into present CWJC No. 10149 of 2011. Instead of Rs. 1,25,285/- the respondents agreed that a sum of Rs. 1,08,064.50 was payable and will be paid to the plaintiff after allotment of fund from headquarter. He admitted the dues and expressed willingness to pay the said actual and valid bill amount. Thereafter the petitioner filed an application seeking judgment on admission. There is no admission in written statement by the respondents in the Court below that they would be paying the interest on the admitted amount of Rs. 1,08,064.50 rather they agreed to pay this amount only. In view of the judgment and decree, the petitioner would be entitled for interest on the admitted principal sum from the date of judgment and decree and not from the earlier date and no such amount was admitted to be payable by them in the written statement. 12. In view of the above, I do not find any merit in CWJC No. 10149 of 2011 and the same is 14 accordingly, dismissed. CWJC No. 11420 of 2011 is allowed. The impugned order dated 6.1.2007 passed in Money Execution case No. 7 of 2000 is quashed to the extent the executing Court has held that the petitioner would be entitled for interest at agreed rate pendente lite. The Court below shall proceed accordingly. 13. There will be no order as to costs. (Chakradhari Sharan Singh, J) Arun Kumar/-