Gajanand Chimanlal v. Indian Oil Corporation — 1980 DIGILAW 219 (CAL)

JUDGMENT (1.) THIS is a revisional application at the instance of the plaintiff in Money Suit No. 21 of 1968 and is directed against two orders dated January 31, 1979 and April 16, 1979 passed by the learned Subordinate Judge, 2nd Court, alipore, in the aforesaid suit. By the first order the learned Subordinate Judge rejected an application under Section 152 read with section 153 of the Code filed by the plaintiff praying for correcting certain error in the decree. By the second order impugned in this revisional application the learned Subordinate Judge refused the similar prayer made again on an application under section 151 of the Code of Civil Procedure. The application is being heard on contest by the defendant opposite party. (2.) THE plaintiff-petitioner instituted the aforesaid suit for recovery of the unpaid value of the goods supplied to the defendant under certain bills together with interest. In paragraphs 1 and 2 of the plaint the plaintiff's case was that he had supplied goods to the tune of Rs. 24,811.13 paise, but had received only a sum of Rs. 6701.48 paise leaving an unpaid balance of Rs. 18,109.65 paise. In paragraph 5 the plaintiff claimed that he is entitled to get a decree for the aforesaid sum of Rs. 18,109. 65 paise together with interest at 12 percent from the date on which payment was due. Though in the plaint itself there had been no clear recital Of the calculation of the interest claimed, it appears that a sum of Rs. 6,500/-was claimed as interest up to the date of the suit and it is not disputed before us that this amount was calculated, calculating the interest at 12 percent. Thus, the total claim laid by the plaintiff was the sum of Rs. 24,609.65 paise. This suit was contested by the defendant opposite party by filing a written statement. The defendants denied their liability to pay the sum of Rs.18,109. 65 paise on various grounds including a ground that the goods supplied were not according to the specification. In the written statement they further claimed certain deduction. (3.) IT appears that on such pleadings two specification issues were framed at the trial to the following effect : "(1). Is the plaintiff entitled to a decree for the amount as claimed together with interest ? (2). Is the defendant entitled to any deduction as alleged ? In the written statement they further claimed certain deduction. (3.) IT appears that on such pleadings two specification issues were framed at the trial to the following effect : "(1). Is the plaintiff entitled to a decree for the amount as claimed together with interest ? (2). Is the defendant entitled to any deduction as alleged ? considering the evidence adduced by the parties the learned Judge answered the issues in favour of the plaintiff and held that "the defendant, I am afraid, is not entitled to any damages by deducting from the bills submitted by the plaintiff firm. Thus considering I hold that the defendant is not entitled to any deduction as alleged and that the plaintiff's are entitled to" the decree for the amount of Rs. 18,109,65 together with interest". In drawing up the ordering portion the learned Judge, however, failed to take note of the fact that Rs. 6,500/- was claimed ' as interest up to the date of the suit and the plaintiff has claimed post suit interest also. In the ordering portion, therefore, the learned Judge directed "ordered that the suit be decreed in part on contest with proportionate costs. The plaintiff do get a decree of rs. 18,109.65 paise against the defendant. The plaintiff do further get interest on decretal amount at the rate of 6% per annum unstill recovery of the amount". There is no dispute that the decree that was drawn up in term of the ordering portion so that the suit was decreed for a sum of Rs. 18,109. 65 paise with interest at 6 percent on the said amount from the date of the decree unstill realisation. Thus, there was an omission to grant any decree for interest for the two periods one up to the date of the suit and the other from the date of the suit until the date of the decree. (4.) THOUGH this omission was lost sight of by the parties at the initial stage, the plaintiff having realized such omission filed an application under section 152 read with section 153 of the Code on January 24, 1979 claiming that the interest for the aforesaid two periods had been omitted from the decree by mistake and the said mistake should be corrected, That was the application which was filed on January 24, 1979. The learned Subordinate Judge, however, rejected this application on January 31, 1979 on the view that the amendment claimed "does not come within the preview of section 152 of the Code of civil Procedure nor it is an accidental slip, or omission. " Immediately thereafter on February 19, 1979 the plaintiff filed another application under section 151 of the Code of civil Procedure pointing out that the decree that has been drawn up is not in consonance with the Judgment and as such it should be appropriately amended to make it confirm with the judgment. This application, has been rejected by the second order referred to hereinbefore on April 15, 1979. The learned subordinate judge took the view that such an application has no merit and as such is liable to be dismissed. These are the orders which are being impugned before us in the present revisional application. Mr. Das Gupta, appearing in support of this Rule issued on the revisional application, has contended that the learned Subordinate Judge had really refused to exercise jurisdiction vested in him in not amending the decree which is not in consonance with the judgment upon an erroneous view that no such amendment can be effected unless it is an amendment to remove any mistake arising out of accidental slip or omissions. Strong reliance has been placed by Mr. Das gupta on the decision of the Supreme Court in the case of Samarendra Nath Sinha -vs- Krishna Kumar Nag, A.I.R. 1967 S. C. 1440. It has, therefore, been contended by Mr. Das Gupta that in the present case the learned Subordinate Judge having answered the issues nos. 1 and 2 in favour of the plaintiff and having held that the plaintiff is entitled to the unpaid value of the goods supplied with interest thereon he should have passed a decree for interest both for the period up to the date of the suit and from the date of the decree. His omission to do so renders the decree inconsistent with the judgment and having all the jurisdiction to remove such inconsistency he failed to do so upon an erroneous-view as to the limitation or his powers under the provision of sections 151, 152 and 153 of the Code of Civil Procedure. (5.) MR. His omission to do so renders the decree inconsistent with the judgment and having all the jurisdiction to remove such inconsistency he failed to do so upon an erroneous-view as to the limitation or his powers under the provision of sections 151, 152 and 153 of the Code of Civil Procedure. (5.) MR. Basu, appearing on behalf of the defendant, has raised a preliminary objection to the effect that the present revisional application should not be entertained because of a bar of a limitation. According to Mr. Basu the substantial prayer in this regard having been refused by the learned subordinate Judge by his earlier order dated January 31, 1979 plaintiff petitioner should have moved this Court forthwith against the said order. The plaintiff's failure to do so and the plaintiff's further proceeding with an irrelevant fresh application under section 151 of the Code would not give him any right to challenge both the orders including the earlier order dated January. 31, 1979 since his right to move against the order stands barred by limitation. On merits Mr. Basu has strongly contested the claim of Mr. Das gupta that the decrees drawn up is not in consonance with the judgment. According to Mr. Basu, when the learned Subordinate judge decreed the suit in part obviously he refused to decree the entire claim including the claim of interest of the sum of Rs. 6,500/ -. Such claim having been refused it is not a case of any omission. That part of the judgment where the learned Subordinate judge held that the plaintiff would be entitled to interest, according to Mr. Basu means and refers to interest on the decretal amount. (6.) HAVING considered the points thus raised before us we are of the view that though the revisional application, so far as it is directed against the order dated January 31, 1979 is concerned, appears to be barred by the period of limitation prescribed for such application, yet we cannot ignore the position that the plaintiff was bonafide proceeding with a fresh application under section 151 of the Code. It should be noted that the learned Subordinate Judge rejected the application under section 152 read with section 153 of the Code on the ground that not being a case of accidental slip or omission it does not come within the purview of those two provisions of the code. It should be noted that the learned Subordinate Judge rejected the application under section 152 read with section 153 of the Code on the ground that not being a case of accidental slip or omission it does not come within the purview of those two provisions of the code. Obviously that led the plaintiff to make an application under section 151 because his case in substance was that the decree was hot in consonance with judgment. Such being the position, we are not in a position to say that the application under section 151 was to fully misconceived or is so irrelevant that time spent pursuant to such an application should not be deducted in the matter of calculating the period of limitation for moving against the order dated January 31, 1979. On the other hand, if the relief for the plaintiff is really admissible on an application under section 151 of the Code then he is well within time from the date of refusal of that application. In this view the preliminary objection raised by Mr. Basu fails and is over ruled. We next proceed to consider the principal contention raised by Mr. Das gupta which has been seriously contested by Mr. Basu appearing on he half of the defendant opposite party. According to Mr. Das Gupta, the decree, as has been drawn up, is not in term of the judgment since, reading the judgment as a whole it would appear clearly that the plaintiff's claim for interest had been allowed by the court though not incorporated in the decree. Such an inconsistency between the judgment and the decree could very well be removed by an appropriate amendment on an application of the nature filed before the learned Subordinate Judge, according to Mr. Das Gupta, the learned subordinate Judge was proceeding up on a misapprehension that his power to amend is limited only to cases of accidental slip or omission and not otherwise. Mr. Basu on the other hand has contended that, though Mr. Das Gupta may be right in his contention that the power of amendment is not limited in the manner as has been held by the learned Subordinate Judge, there is no case for amendment because really there is no inconsistency between the judgment and the decree. Mr. Basu on the other hand has contended that, though Mr. Das Gupta may be right in his contention that the power of amendment is not limited in the manner as has been held by the learned Subordinate Judge, there is no case for amendment because really there is no inconsistency between the judgment and the decree. It appears, therefore, that there is no dispute between the parties now before us that the court possesses the necessary power to amend the decree if the decree is not consistent with the judgment, there is no such dispute because such a preposition cannot be disputed in view of the settled principles and in view of the decision of the Supreme Court relied on by Mr. Das Gupta. Therefore, in our view, Mr. Das Gupta is well justified in contending before us that the learned Subordinate judge refused the plaintiff's prayer upon a misapprehension as to the limitation of his powers. (7.) THE entire dispute, therefore, now before us is as to whether there is really an inconsistency between the judgment and decree. On this point we cannot but accept the contention of Mr. Das Gupta. We have indicated hereinbefore that the learned Subordinate Judge in disposing of the suit answered issues Nos. 1 and 2 in favour of the plaintiff. He found in no uncertain terms that the plaintiff is entitled to the sum of Rs. 18,109.65 towards the, unpaid value of the goods supplied together with interest. This term "together with interest" must necessarily mean interest as claimed in the plaint over which an issue was specifically raised. This term interest' cannot mean the interest on the decretal amount. Accordingly, when the learned Subordinate Judge decreed the suit for the sum of Rs.18,109-65 with interest, the interest claimed in the plaint should have been incorporated in the decree. But unfortunately, the decree incorporated interest at 6% only on the decretal amount so that the interest up to the date of the suit and interest from the date of the suit until the date of the decree had been omitted from the decree. Reading the judgment as a whole, particularly in. view of the statutory provisions of section 61 (2) of the Sale of Goods act, we find no reason why the court should not have allowed the claim of interest on the unpaid value of the goods supplied. Reading the judgment as a whole, particularly in. view of the statutory provisions of section 61 (2) of the Sale of Goods act, we find no reason why the court should not have allowed the claim of interest on the unpaid value of the goods supplied. More so, when such interest was claimed in the suit and it was found by the court that the plaintiff is entitled thereto, obviously the court did allow the interest as claimed though unfortunately in the decree that was drawn up, it was omitted. True, mr. Basu has drawn our attention to the fact that the learned Subordinate Judge has observed that the suit succeeds in part. According to Mr. Basu, if the plaintiff's claim for the principal amount as also the interest was intended to be decreeded then there is no scope for there being a decree in part. Unfortunately, however, this recital appears to be somewhat mistaken and the mistake has arisen because of the schedule annexed to the plaint. In the schedule to the plaint the plaintiff had specified a sum of Rs. 24,811. 13 as the total amount of the five bills though that was not the amount outstanding or claimed. Reading the schedule in the light of paragraphs 1 and 2 of the plaint, it would appear that the claim was limited to only Rs. 18,109. 65. But unfortunately, the learned Subordinate Judge was misguided by the figures specified in the schedule obviously to think that the total amount of the claim was Rs. 24,811. 13. Otherwise, we find no reason whatsoever for the learned Subordinate Judge decree decreeing the suit in part. In any event, when there was a claim of interest and there was a specific issue" as to whether the plaintiff is entitled to such interest and that issue had been decided in favour of the plaintiff, we are unable to accept the contention of mr. Basu that the court really refused the prayer for interest. Such being the position, we have no manner of doubt that both the ordering portion in the judgment as also the decree is not in consonance with the judgment itself and is required to be amended appropriately. Basu that the court really refused the prayer for interest. Such being the position, we have no manner of doubt that both the ordering portion in the judgment as also the decree is not in consonance with the judgment itself and is required to be amended appropriately. Such amendment again, in our view, is admissible on an application of the nature filed by the plaintiff and the learned Subordinate Judge really refused to exercise the jurisdiction vested in him on a material misapprehension as to the limits of his powers. (8.) IN the result, the revisional application succeeds and the Rule is made absolute, the impugned orders being set aside, the learned Subordinate judge is directed to amend the decree appropriately' granting a decree for interest in favour of the plaintiff in accordance with his judgment. We, however, further direct that in doing so he must limit the decree for interest at 6% from the date the amount was found due until the date of the decree. No order is made as to costs in this rule. Rule made absolute. No costs.