GOVERNMENT OF MYSORE v. HARI RAJ AND CO — 1971 DIGILAW 224 (KAR)

VENKATARAMIAH, J. ( 1 ) THIS appeal is filed against the decree passed in OS. No. 16 of 1967 on the file of the Civil Judge at Mercara, by the State of Mysore, the defendant in the said suit. The plaintiffs instituted the suit for recovery of a sum of Rs. 44,996-69 from the defendant on the following grounds : under an agreement entered into by the plaintiff with the owners of the land described in the plaint schedule, one D. H. Abdul Rahaman Saheb purchased the standing timber thereon. After the purchase, an enumeration of the trees on the land was done by the Government and it was found that there were 943 trees. The land in question being an unredeemed one, it was necessary to pay seignorage in respect of the standing timber before it was cut and removed. The plaintiffs entered into an agreement with the aforesaid Abdul Rahaman Saheb to purchase the said trees from him. After they purchased the same, they deposited a sum of" rs. 65,198-85 towards seignorage and commenced to cut and remove the timber. At that stage it was noticed that having regard to the number of trees which could be cut and removed, the amount of seignorage collected by the Forest Department was excessive. It appears the officials of the foreet Department who had enumerated the number of trees, had included in the list prepared by them certain trees which could not be cut and removed also. That on 13-1-1964, "the Forest Ranger in charge of the area in which the schedule land was situated, called upon the plaintiffs not to cut such of those trees whose girth was below 7 ft notwithstanding the fart that they had also been included in the list originally prepared by the Department on the basis of which seignorage had been collected. The plaintiffs implicitly obeyed the instructions issued by the Forest Ranger and requested the Forest Dept. to refund the amount of seignorage which had been paid in excess by them. Because the plaintiffs were not able to realise the amount claimed by them in spite of repeated petitions addressed to the Government and a notice issued under S. 80 CPC, the plaintiffs instituted the above suit on 13-11-1967. They claimed in the course of their plaint that they were entitled to recover from the defendant a sum of Rs. 37. Because the plaintiffs were not able to realise the amount claimed by them in spite of repeated petitions addressed to the Government and a notice issued under S. 80 CPC, the plaintiffs instituted the above suit on 13-11-1967. They claimed in the course of their plaint that they were entitled to recover from the defendant a sum of Rs. 37. 611-64 being the excess seignorage paid by them; a sum of rs. 7334-25 by way of interest at six per cent per annum from 30-7-1964 till date of suit, and Rs. 50-30 towards notice charges. In all they claimed that a decree should be passed against the defendant for a sum of rs. 44,996-69. ( 2 ) THE defendant raised various pleas in the course of the written statement and contended that the plaintiffs were not entitled to the decree as prayed for. The Court below, however proceeded to pass a decree against the defendant for Rs. 44,996-69 with interest at six per cent per annum on rs. 37,611-64 from 13-11-1967 i. e. the date of suit till the date of payment. The sum of Rs. 44,996-69 referred to above included interest at sis per cent on the sum of Rs. 37,611-64 from 30-7-1964 till the date of the suit. Aggrieved, by the decree parsed by the Court below, the defendant (State of Mysore), has filed this appeal. The appeal is confined only to that part of the decree of the Court below by which interest was awarded from 30-7-1964 till date of suit. ( 3 ) SRI N. Basavaraju, the learned Counsel for the defendant, relying upon a decision of the Supreme Court in Union of India v. Watkins mayor and Co. AIR. 1966 9c. 275. contended that the Court below was wrong in awarding interest in respect of the period prior to the date of suit in the circumstances of this case. Admittedly there was no agreement between the parties to pay interest in respect of any excess seignorage recovered by the Government. The amount in question until it was ascertained and decreed by the Court below, was an unascertained sum. The case, according to sri Basavaraju, does not fall under any one of those cases in which interest in respect of the period prior to the suit, could be awarded. The amount in question until it was ascertained and decreed by the Court below, was an unascertained sum. The case, according to sri Basavaraju, does not fall under any one of those cases in which interest in respect of the period prior to the suit, could be awarded. The relevant portion of the judgment of the Supreme Court reads as follows :"it is well established thai interest may be awarded for the period prior to the date of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law entitling the plaintiff to recover interest, as for instance, under S. 80 of the Negotiable Instruments Act, 1881, the Court may award interest at the rate of 6 per cent per annum, when no rate of interest is specified in the promissory note or bill of exchange. There is in the present case neither usage nor any contract, exprew ot implied, to justify the award of interest. Nor is interest payable by virtue of any provision of the law govering the case. Under the Interest Act, 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. " ( 4 ) AN observation to the same effect is to be found in another decision of the supreme Court in the Union of India v. West Punjab Factories Ltd. AIR. 1966 SC. 395. , which reads as follows :" In the absenee of any usage or contract, express or implied, or of any provision of law to justify the award of interest, interest by way of damages cannot be awarded. No interest could thus be awarded for the period upto the date of the suit. " ( 5 ) IN the instant case, the amount claimed by the plaintiffs is in the nature of damages payable by the defendant on failure of consideration. The amount, as already stated, was an unascertained sum and not a sum certain. No interest could thus be awarded for the period upto the date of the suit. " ( 5 ) IN the instant case, the amount claimed by the plaintiffs is in the nature of damages payable by the defendant on failure of consideration. The amount, as already stated, was an unascertained sum and not a sum certain. In the circumstances, the Court below was wrong in awarding interest on the sum of Rs. 37,611-64 from 30-7-1964 till the date of suit. In the result, we allow the appeal and substitute the decree passed by the Court below in the following terms: There shall be a decree against the defendant for a sum of Rs. 37,611-64 only with current interest at six per, cent per annum from the date of suit till the date of payment. The appellant is entitled to recover costs of the appeal from the respondent. ( 6 ) BEFORE leaving the case, it is to be pointed out that although the appeal was confined in the memorandum of appeal to the amount of interest awarded upto the date of suit i. e. Rs. 7,334-25, by the Court below, by oversight in the paragraph relating to the valuation of the appeal, the appellant has valued the appeal at Rs. 53,995-89 and has stated that a Court fee of Rs. 3,375 was payable and that the State of Mysore is exempted from paying Court fee. The valuation of the appeal, should therefore, be corrected. The value of the appeal shall be taken as Rs. 7,334-25 and the court fee payable on the appeal memorandum shall be calculated on the above basis. The respondent shall be made liable for costs on the above basis. The Government Advocate is permitted to amend the memorandum of appeal suitably. --- *** --- .