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2000 DIGILAW 248 (PNJ)

Central Bank Of India v. Narain Singh

2000-03-02

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. It was suit for recovery of Rs. 60609/- filed by the Central Bank of Indian, a body corporate constituted under the Banking Company Acquisition and Transfer of Undertakings) Act 1970 through its General Attorney/Manager Sh. S.S. Sharma posted with Central Bank of India Laswa Branch against Rarian Singh and Hari Chand-defendants, on the allegations, that Narain Singh approached plaintiff bank for a crop. loan for purchase of seeds and fertilizers etc. He made application dated 15.9.1987 with a view to obtaining loan for the purchase of seeds and fertilizers etc. Loan was duly sanctioned to him by the bank. After the sanctioning of the cash credit hypothecation limit, Narain Singh obtained a cash credit hypothecation limit of Rs. 50,000/- on interest 16.5% per annum with half yearly rests from the plaintiff bank vide an agreement dated 27.10.1987 against hypothecation of crops standing in his fields. He was to repay the said cash credit hypothecation limit after harvesting of the crops or on demand by the plaintiff bank. On 27.10.1987 Narain Singh executed loan-cum-hypothecation agreement (crops) for Rs. 50,000/- in favour of the bank. In consideration of the bank sanctioning cash credit hypothecation limit in favour of Narain Singh, he mortgaged agricultural land measuring 48 kanals, belonging to him vide registered mortgage deed dated 15.9.1987. It was stipulated in the mortgage deed that interest @ 16.5% per annum with half yearly rests shall run on the amount of Rs. 50,000/-. Hari Chand-defendant No. 2 stood guarantor for the aforesaid cash credit hypothecation deed executed on 27.10.1987. As on 14.1.1990, according to the bank record and the statement of account prepared by the bank in its regular course of banking business, a sum of Rs. 60,609/- became due including interest calculated up to 14.1.1990. Plaintiff bank prayed that decree for the sum of Rs. 60,609/- be passed in favour of the plaintiff bank and against the defendant and the decretal amount be got recovered by the sale of the mortgaged property. It was further prayed that the defendants be made liable jointly and severally to pay the decretal amount. Plaintiff bank prayed that decree for the sum of Rs. 60,609/- be passed in favour of the plaintiff bank and against the defendant and the decretal amount be got recovered by the sale of the mortgaged property. It was further prayed that the defendants be made liable jointly and severally to pay the decretal amount. It was further prayed that the defendants be directed to pay the decretal amount within 6 months from the date of preliminary decree alongwith interest and costs and in case defendants failed to pay decree under Order 34 Rules 5 CPC be passed in favour of the plaintiff bank and against the defendants directing the realisation of the decretal amount, interest and costs alongwith subsequent costs, interest charges or expenses which might be adjudged due by the sale of mortgaged property. It was also prayed that the crops hypothecated by the defendants be also ordered to be sold and the sale proceeds thereof be directed to be applied towards the decretal amount, costs and interest. It was also prayed that if any part of the decretal amount remained un-recovered by the sale of mortgaged property and by the sale of hypothecated crops, defendants be made personally liable to pay from their personal property. 2. Suit of the plaintiff bank was decreed ex parte by Senior Sub Judge, Kurukshetra vide order dated 18.7.1995. 3. Operative part of the decree passed by the Senior Sub Judge, Kurukshetra reads as follows: "As a result, I conclude to hold the plaintiff has succeeded in proving its case, therefor suit of the plaintiff bank for recovery of Rs. 60,609/- is decreed with costs. Plaintiff bank is held entitled to interest at the rate of 16.5% per annum from the date of filing of the suit, till the realisation of the decretal amount, but on the principal amount of Rs. 50,000/-." This decree was passed on the following claim laid by the plaintiff bank in the plaint. " Claim for preliminarily decree under Order 34 Rule 4 of CPC for Rs. 50,000/-." This decree was passed on the following claim laid by the plaintiff bank in the plaint. " Claim for preliminarily decree under Order 34 Rule 4 of CPC for Rs. 60,609/with costs of the suit and future interest at the rate of 16.5% per annum with half yearly rests from the date of the suit till realisation be passed in favour of the plaintiff and against the defendants jointly and severally and dated be kindly fixed within six months from the date of preliminary decree directing the defendants to pay the decretal amount alongwith said interest and costs on or before such date. (b) - In case the defendants fail to deposit the amount of preliminary decree, costs and interest as above directed within the period fixed by this Court, then a final decree under Order 34 Rule 5 CPC be passed in favour of the plaintiff and against the defendants directing the realisa tion of the decretal amount, interest applicable thereon as above claimed and costs of the suit alongwith any subsequent cost, interest charges or expenses which my be adjudged due from the sale of mortgaged property i.e, land measuring 48 kanals and the crops hypothecated." 4. Central Bank of India filed application under Section 152 of the Code of Civil Procedure for correction/amendment of decree before that Court. It was pleaded that the bank had prayed for passing a decree under Order 34 Rule 4 CPC and the due to clerical error or omission, simple decree was passed, although preliminary decree should have been passed when Narain Singh had mortgaged his 48 kanals of land in favour of the plaintiff bank by way of security for securing the repayment of the loan together with interest etc. 5. Civil Judge (Sr. Division), Kurukshetra vide order dated 15.3.1997 declined this application. 6. Aggrieved, Central Bank of India has come up in revision to this Court. Shri Rajesh Mahajan, counsel for the Central Bank of India submits that the Court below should have allowed the banks prayer for correction/amendment of the decree under Section 152 CPC because it was an inadvertent omission or error on its part that it passed simple money decree, whereas the prayer of the plaintiff bank was for a preliminary decree. Shri Rajesh Mahajan, counsel for the Central Bank of India submits that the Court below should have allowed the banks prayer for correction/amendment of the decree under Section 152 CPC because it was an inadvertent omission or error on its part that it passed simple money decree, whereas the prayer of the plaintiff bank was for a preliminary decree. It was submitted that if the Court had adverted to the prayer of the plaintiff bank made in the plaint together with averments, in support thereon, the Court would have passed a preliminary decree in favour of the plaintiff bank and not a simple money decree. 7. Learned counsel for the petitioner submits that the prayer of the plaintiff bank did fall within the ambit of Section 152 CPC and the Court should have allowed its prayer and corrected the decree so that it became in tune with its prayer made in the plaint. In support of this submission, he has drawn any attention to B. Shivanada v. Andhra Bank, 1994 ISJ Banking 462 where the Court had omitted to award future interest to the bank, in application under Section 152 CPC made by the bank, the decree was corrected. Andhra Bank filed suit on June 11, 1979 seeking preliminary decree for sale of properties covered by two simple mortgages dated 3.7.1976 and 13.12.1976 with charge on the hypothecated movable and immovable and a personal decree against appellant and other was sought for the decretal amount with future interest and cost. The suit was decreed ex parte on March 13, 1986. Therefore, two applica tions were filed, one by the bank claiming interest at the rate of 16-1/2% on the decretal amount and another by the appellant (B Shivananda). The appellant contended that no interest can be granted since the judgment did not specify the liability relating to payment of future interest. The trial Court allowed the application of the appellant and dismissed the application of the bank. On revision filed by the bank, the High Court by its order dated 23.9.1989 allowed the revision of the bank and dismissed the application of the appellant. In SLP the Honble Supreme Court observed that it was a case where Section 152 CPC was attracted and the decree should have been amended. On revision filed by the bank, the High Court by its order dated 23.9.1989 allowed the revision of the bank and dismissed the application of the appellant. In SLP the Honble Supreme Court observed that it was a case where Section 152 CPC was attracted and the decree should have been amended. Section 152 CPC clearly gives power to the Court to amend clerical or arithmetical mistakes in the judgment and decree or order or any errors arising therein from any accidental slip or omission. The same may, at any time, be corrected by the Court either on its own motion or on the application of any of the parties to the suit. Thus, it is not necessary that the aggrieved party should necessarily file an appeal or review for effecting correction of the judgment or decree or order. In this case claim for future interest at the rate of 16-1/2% from the date of lending till the date of filing of the suit. However, the court had discretion under Section 34 CPC to award interest. Admittedly the loan was taken for construction of theater. In other words, the loan was for a commercial transaction. In the facts and circumstances of the case, we consider it just and proper that the appellant should pay simple interest at the rate of 16-1/2 % per annum on the principal amount claimed in the suit from the date of the decree till the date of realisation. 8. Learned counsel for the appellant submits that in view of what the Honble Supreme Court has observed, the Court should exercise the powers vested in it under Section 152 CPC and amend correct the decree so as to make the decree to accord with the prayer made by the bank in the plaint substantiated at the trial. 9. Learned counsel for respondent No. 1 on the other hand submit that it is not a case where Section 152 CPC can come to the rescue of the bank. If the Court had failed to pass decree to that effect, it should be taken that the Court had felt that only money decree be passed in favour of the bank. He submits that if the bank felt aggrieved. It should have gone in appeal to the District Judge and sought the relief which the Senior Sub Judge had not given. He submits that if the bank felt aggrieved. It should have gone in appeal to the District Judge and sought the relief which the Senior Sub Judge had not given. In support of this submission, he has drawn my attention to Master Construction Co. (P) Ltd. v. State of Orissa, A.I.R. 1996 S.C. 1047. 10. In view of what has been stated above, to my mind it was clearly a case where Section 152 CPC came into pay. Decree passed by Senior Judge, Kurukshetra needed to be corrected. Learned Senior Judge should have accepted the prayer made in the plaint substantiated at the trial and plaintiffs suit should have been decreed as prayed and decree should have been amended accordingly. 11. So, that revision is allowed. Decree passed by the learned Senior Judge, Kurukshetra shall be deemed to have been amended/ corrected and substituted by the aforesaid Decree which is directed to be passed now. No order as to costs.