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1996 DIGILAW 892 (DEL)

SLATE BANK v. JAY RUBBER AND COMPANY

1996-11-08

Y.K.SABHARWAL

body1996
( 1 ) THE suit out of which this application has arisen was filed by the plaintiff-bank on 16. 12. 87. The defts inspite of various opportunities did not file W/s and the case was thus proceeded under Order 8 Rule 10, Civil Procedure Code and the judgment was pronounced on 27. 7. 89. In the judgment the interest was awarded in favour of plaintiff and against defts from date of the decree. Pff. has filed this application pleading that the non-grant of the pendente lite interest i. e. interest from the date of the suit till date of the judgment/decree was on account of inadvertence and accidental slip and omission and unless rectified it would cause grave and irreparable loss and injury to the pff. Thus, the pff. has prayed u/s. 152/151, Civil Procedure Code for correction of the accidental omission and slip in the judgment and decree dated 27. 7. 89 to incorporate that the plaintiff is granted pendente lite interest. ( 2 ) THE application has been strenuously opposed by the defts. Mr. Bhuchar submits that non-grant of pendente lite interest cannot be said to be on account of accidental slip or omission and if the pff. was aggrieved by non-grant of pendente lite interest his remedy was to challenge the judgment and decree by filing an appeal. Counsel contends that the application u/s. 152 of Civil Procedure Code is not maintainable. ( 3 ) THE grant of interest after filing of the suit is governed by S. 34. Civil Procedure Code S. 34 (2), provides that where decree is silent with respect to payment of further interest on such principal sum adjudged from the date of decree to the date of payment or earlier date, the court shall be deemed to have used such interest, and a separate suit therefor shall not lie. ( 4 ) IN West Bengal financial Corp. vs. Bertram Scott. (I) Ltd. . AIR 1983. Cal. , a D. B. has held that court has no discretion in respect of grant or non-grant of pendente lite interest and the discretion of the court is only as to the rate of such interest to be allowed. It has been held that the court was bound to decree pendente lite interest. This decision has been followed in Life Ins. Corp. vs. Kumar Purnendu Nath, AIR, 1988 Cal. 311. It has been held that the court was bound to decree pendente lite interest. This decision has been followed in Life Ins. Corp. vs. Kumar Purnendu Nath, AIR, 1988 Cal. 311. I am in respectful agreement with the view expressed in these decisions. In this view the question that has now to be decided is whether no-grant of pendente lite interest, in the facts and circumstances of the present case, can be said to be or not on account of accidental slip or omission. ( 5 ) IT may be noticed that when the case was taken up on 27th July 1989 the defts. had not appeared; they have not filed W/s and the decree was passed after the matter was proceeded under Order 8 Rule, 10 Civil Procedure Code As noticed above, future interest was awarded in favour of the pff. and against the defendants. ( 6 ) IT is evident and obvious that the non-grant of pendente lite interest in favour of pff. was on account of accidental slip or omission since something which was intended to be incorporated in the judgment was not incorporated on account of inadvertence and not pointed out by pff. It is settled law that grant or otherwise of future interest is matter of court s disseretion. Even in respect of grant of future interest, it has been held that S. 152 is applicable and the judgment and decree can be corrected if the non-grant is on account of accidental slip or omission. Such non-grant can be corrected u/s. 152, Civil Procedure Code (See : Firozshaw vs. State, AIR 1957. M. P. 50, State of M. P. vs. Man Mohan Swaroop, AIR 1966. M. P. 270, Devidas vs. Yeotmal. Central Bank Ltd. , 1956. Nag. 239 and Jayakrishna vs. State, AIR 19760rissa203 ). ( 7 ) LEARNED Counsel for the defts. , however, relies upon Master Construction Co. vs. State, AIR. 1966. SC. 1047, on the scope and interpretation of S. 152, Civil Procedure Code The said decision also shows that accidental slip or omission is an error due to a careless mistake or omission unintentionally made. In my view the present omission and slip in the judgment dated 27. 7. 89 can be corrected u/s. 152 Civil Procedure Code in terms of law enunciated in the cited decisions. In my view the present omission and slip in the judgment dated 27. 7. 89 can be corrected u/s. 152 Civil Procedure Code in terms of law enunciated in the cited decisions. On the facts and circumstances of the case it cannot be held that the accidental slip or omission is not apparent from the face of the record. For the aforesaid reasons 1 allow this application and direct that the judgment and decree dated 27the July 1989 be corrected and for the words date of decree the words date of the suit shall be substituted.