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2005 DIGILAW 10 (GAU)

Tripura Gramin Bank v. Promode Chandra Nath

2005-01-05

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. This first appeal by the Tripura Gramin Bank is directed against the decree dated 3.2.1998 passed in T.S. (Mort.) No. 05 of 1993 prepared in pursuance of the judgment dated 27.9.1996 passed by the learned Civil Judge, Senior Division, Dharmanagar. The appellant further prayed for restoration of the preliminary decree dated 4.10.1996 prepared following the same judgment. 2. The appellant Bank filed the suit for realization of Rs. 8,51,992.90 p. from the defendant No. 1 Sri Promode Chandra Nath, the amount having been calculated as on 31.3.1993 against A/C No. TS (SSI) 1/716 and CC A/C No. 18. The appellant after approving the application for loan of the defendant No. 2 sanctioned a term loan of Rs. 66,000 and a cash credit facility to the extent of Rs. 81,000 on 19.10.1981 the total amount being Rs. 1,47,000. Along with the plaint, the appellant annexed the details of the two A/Cs starting from 17.11.1981 in respect of A/C No. TL (SSI) 1/716 and 11.11.1981 in respect of A/C No. CC 18, which have been exhibited as Annexure-A series. The two A/Cs show Rs. 2,47,959.90 p. and Rs. 6,04,033 as on 23.3.1993 respectively. The suit was filed for realization of this amount along with interest, as the respondents did not repay the loan as per terms and conditions thereon. 3. The defendants contested the suit after admitting that Rs. 1,47,000 was sanctioned by the appellant on 19.10.1981 on terms and conditions contained in paragraph 5 of the Agreement. But they contended that the A/Cs were opened in the name of M/s. Yubarajnagar Small Industries not in the name of the defendant No. 1 and that he did not execute any promissory note for Rs. 66,000 and Rs. 81,000 separately on 11.11.1981 in favour of the Bank for repayment. 4. The learned trial court after considering the rival contentions and relying on the evidence on record decreed the suit without specifying any amount. But it held that the plaintiff-appellant was entitled to recover the amount advanced as loan to the defendants setting off the initial amount of Rs. 66,000 and Rs. 81,000. The court further directed that the plaintiff-appellant would be entitled to recover the interest on the balance amount upto the date of realization. Accordingly, preliminary decree was prepared for an amount of Rs. 7,30,242.75 presumably after setting off the initial amount as mentioned in the judgment. 66,000 and Rs. 81,000. The court further directed that the plaintiff-appellant would be entitled to recover the interest on the balance amount upto the date of realization. Accordingly, preliminary decree was prepared for an amount of Rs. 7,30,242.75 presumably after setting off the initial amount as mentioned in the judgment. This decree was prepared on 4.10.1996 following the said judgment. But, thereafter, the defendant-respondents filed a petition on 22.12.1997 stating that the decree prepared on 4.10.1996 had certain mistake in respect of the cost. Accordingly, on 3.3.1997, the court heard the parties and directed the Bench Clerk to remove the arithmetical mistake in the decree as prayed for in the petition dated 22.12.1997. No reasons were recorded as to what mistake had taken place in preparing the decree and as a result, there was no guidelines to the Bench Clerk for necessary correction. On 3.2.1998, the learned trial court passed another order for removal of arithmetical mistake without again recording what actually were those mistakes. It was thus became a free hand for the staff who corrected the decree by scoring out the earlier figure with a new figure on the body of the decree itself. It is very strange to find that the original decretal amount of Rs. 7,30,242.75 p. was brought down to only Rs. 86,727.71 p. after correction what was the method of calculation and how the new figure could be worked out are anybody's guess as neither in the order for rectification nor in the decree, any reason was recorded. Strangely enough, the judgment of the trial court which was a cryptic one neither did specify the decretal amount nor did provide any direction about calculation of the amount. It decreed the suit in favour of the Bank which was for Rs. 8,51,992.90 p. only with direction that the initial amount of Rs. 66,000 and Rs. 81,000 should be set off. How after setting of Rs. 1,47,000 (Rs. 81,000 + Rs. 66,000), the amount came down to Rs. 86,727.71 p. only in the modified decree is not at all intelligible. 5. I have heard Mr. A.K. Bhowmik, learned senior counsel for the appellant and Mr. B. Das, learned senior counsel for the respondents. 6. Placing reliance on the decision in the case of Master Construction Co. Pvt. Ltd. vs. State of Orissa and another, Mr. 86,727.71 p. only in the modified decree is not at all intelligible. 5. I have heard Mr. A.K. Bhowmik, learned senior counsel for the appellant and Mr. B. Das, learned senior counsel for the respondents. 6. Placing reliance on the decision in the case of Master Construction Co. Pvt. Ltd. vs. State of Orissa and another, Mr. Bhowmik submitted that in modifying a decree the jurisdiction of the court is very much limited. An arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. Section 152 of CPC provides that clerical or arithmetical mistakes in judgments, decrees or orders or, errors arising therein from any accidental slip or omission made at any time be corrected by the court either of its own motion or on the application of any of the parties. In the instant case, the learned trial court appeared to have decreed the entire amount of the plaintiff-appellant with a rider that Rs. 1,47,000 should be set off and the decree dated 4.10.1996 seems to have been prepared more or less following the said judgment. But subsequent decision of the learned trial court to rectify the errors without elaborating the mistakes in the decree cannot be said to be an error contemplated in Section 152 of CPC as the correction has brought down the figure from Rs. 7,30,242.75 p. to Rs. 86,727.71 p. 7. Mr. Das, on the other hand, submitted that it was within the competence of the trial court to modify the decree in terms of the judgment and it was not open to the first appellate court to interfere with the decision of the trial court. To derive support to his contention, he referred to the decision in the case of Central Bank of India v. Grains and Gunny Agencies and others reported in AIR 1989 SC 28, which does not appear to be a case relevant to the one in hand. 8. For the reasons stated above, the order dated 3.3.1997 of the learned trial court directing modification of the decree dated 3.2.1998 is not in tune with the judgment dated 27.9.1996. 8. For the reasons stated above, the order dated 3.3.1997 of the learned trial court directing modification of the decree dated 3.2.1998 is not in tune with the judgment dated 27.9.1996. Consequently, the decree stands set aside and the case is remitted back to the trial court with direction to prepare the decree afresh in terms of the judgment as well as in the light of the observations made above. There shall be no order as to cost.