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1987 DIGILAW 418 (KAR)

R. N. BANNAD AND SONS v. STATE BANK OF INDIA

1987-12-08

D.R.VITHAL RAO, K.A.SWAMI

body1987
SWAMI, J. ( 1 ) AT the stage of admission the respondents are notified. Accordingly the first respondent-plaintiff has put in appearance through a counsel. As far as the second respondent is concerned he was defendant No. 3 in the suit and he sails with the appellants. There is a decree passed against him also; but he has neither filed any appeal nor joined the appellants. Therefore notice to him is dispensed with. ( 2 ) AS the appeal lies in a narrow compass, it is admitted and finally disposed of by this judgment. ( 3 ) THIS appeal is preferred against the judgment and decree dated 22-8- 1987 passed by the learned Civil Judge, gadag in 0. S. No. 33 of 1986. The appeal is confined to grant of instalments only. The trial Court has passed a decree for a sum of Rs. 74,885-50 with costs and with current interest at the rate of rs. 13% p. a. , from the date of suit till the date of realisation. Thus the interest at the rate of Rs. 13% is awarded in respect of the current as well as the future. ( 4 ) HEARD. TWO points arise for consideration in this appeal. (1) Whether having regard to the facts and circumstances of the case, the trial Court is justified in law in directing return of half of the Court fee paid on the plaint. (2) Whether the number of instalments granted by the trial Court require to be increased ? ( 5 ) POINT No. 1 : The learned trial judge has directed refund of half of the court fee to the plaintiffs. In this regard on the last date when the appeal came up for hearing, the learned counsel appearing for the first respondent-plaintiff was called upon to sustain that part of the decree which directed refund of half of the Court fee. Accordingly it is submitted to-day on behalf of the first respondent that since the suit was not contested by the defendants and they only requested for instalments, the refund of half of the Court fee ordered by the trial Court is in accordance with the provisions contained in Section 66 of the karnataka Court Fees and Suits Valuation act, 1958 (hereinafter referred to as 'the act' ). Having regard to the facts and circumstances of the case it appears to us that it is not possible to accept this submission. The Act is a fiscal statute. It has to be construed strictly. The defendants appeared, and filed their written statement. Issues were framed. When the suit was posted for recording evidence, the defendants withdrew their contentions and only prayed for instalments. No doubt no evidence was recorded. Learned Judge has recorded findings on the issues framed in the suit and in conformity with the findings, he has passed the decree in favour of the plaintiff granting 12 quarterly equal instalments with a further direction to pay the first instalment on or before 31-12- 1987. Section 66 of the Act is attracted only whenever by agreement of parties- (a) any suit is dismissed as settled out of Court before any evidence has been recorded on the merits of the claim ; or (b) any suit is compromised ending in a compromise decree before any evidence has been recorded on the merits of the claim. The case on hand does not fall under clause (a) of Section 66 of the Act, because the suit is decreed on the basis of the findings recorded on the issues framed in the suit. To attract clause (b) of Section 66 of the Act the suit must end in a compromise before the evidence is recorded. No compromise petition is filed in the suit. When the suit was posted for recording evidence, the defendants orally gave up all the contentions and prayed for instalments. The prayer regarding instalments was contested by the plaintiffs. The Court decided all the issues and also the request of the defendants for instalments. The word 'compromise" denotes an agreement between parties to a dispute to settle it out of court. The Dictionary meaning of the word is - a settlement of differences by mutual concession. Thus it is the mutual act of the parties to the suit to settle the dispute between them concerned in the suit by agreement. In the absence of any compromise having been entered into between the plaintiffs and the defendants regarding the suit claim, the Court was not justified in directing half of the Court fee paid on the plaint. Accordingly point no. 1 is answered in the negative. In the absence of any compromise having been entered into between the plaintiffs and the defendants regarding the suit claim, the Court was not justified in directing half of the Court fee paid on the plaint. Accordingly point no. 1 is answered in the negative. The decree of the trial Court in so far as it directs refund of half of the Court fee paid on the plaint is liable to be set aside. ( 6 ) POINT No. 2 : The next point for consideration is whether the appellants are entitled to more number of instalments than those granted by the trial court. The trial Court has granted 12 equal quarterly instalments. As already pointed out the suit is decreed for a sum of Rs. 74,885-50 with costs and with current interest at the rate of Rs. 13% p. a. from the date of suit till the date of realisation. The submission made on behalf of the appellants is that due to drought condition they have suffered a loss in the hand-loom business and they are not in a position to pay the amount in 12 equal quarterly instalments as allowed by the trial Court. Having regard to the fact that the appellants have suffered a loss in their business, it appears to us that six more quarterly equal instalments will be sufficient to meet the ends of justice. Accordingly we hold that instead of 12 quarterly equal instalments, the amount due under the decree shall be paid in 18 quarterly equal instalments with one default clause. The decree of the trial court directs the first instalment to be paid on or before 31-12-1987 as that date is fast approaching we direct that the first instalment be paid on or before 31-1-1988. Point No. 2 is answered accordingly. ( 7 ) FOR the reasons stated above this appeal is allowed. The judgment and decree of the trial Court is modified in the following terms : the decree passed by the trial Court for Rs. 74. 885-50 with costs and with current and future interest at the rate cf Rs. 13% p. a. from the date of the suit till the date of realisation is affirmed. The decreetal amount shall be paid in 18 quarterly equal instalments with a single default clause. The first instalment shall be paid on or before 31-1-1988. 74. 885-50 with costs and with current and future interest at the rate cf Rs. 13% p. a. from the date of the suit till the date of realisation is affirmed. The decreetal amount shall be paid in 18 quarterly equal instalments with a single default clause. The first instalment shall be paid on or before 31-1-1988. If the defendants fail to pay any one of the instalments the decree holder is entitled to recover the entire amount or the entire balance of the amount of the decree, as the cost may be by sale of the mortgaged properties and also proceeding personally against the defendants. The decree of the trial Court directing refund of half of the Court fee paid on the plaintiffs is set aside. If the amount has already been refunded, until it is paid by the plaintiffs, it shall be the first charge on the decree and be recovered by the Deputy Commissioner of the district. The plaintiff shall pay the same into the Court within 6 weeks from today. On payment of the same by the plaintiff the same shall be included in the costs awarded against the defendants in the suit. However there will be no order as to costs in this appeal. --- *** --- .