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2006 DIGILAW 1819 (DEL)

MADAN LAL SHARMA v. SUKH LAL GUPTA

2006-10-10

S.L.BHAYANA, T.S.THAKUR

body2006
T. S. THAKUR, J, J. ( 1 ) THIS appeal arises out of a suit filed by the plaintiff-respondent against the appellant-herein under Order XXXVII of the Code of Civil Procedure and decreed for a sum of Rs. 3,97,673. 00 with interest at the rate of 16% p. a. from the date of the filing of the suit till the realization of the decretal amount. ( 2 ) THE plaintiff-respondent claimed a decree under the summary provisions of Order XXXVII CPC for a sum of Rs. 3,97,673. 00, representing the principal amount of Rs. 2. 50 lacs and interest payable on the same upto the date of institution of the suit. Leave to defend the suit was denied to the defendant by the Court below but granted by a single Bench of this Court in a revision petition No. 162/96, disposed of by order dated 9th May, 2000. ( 3 ) THE defendant was, in terms of the above order, entitled to file a written statement, which he does not appear to have filed despite repeated opportunities granted to him. The trial Court, therefore, invoked Order VIII rule 10 of the CPC, struck off the defence of the defendant-appellant and decreed the suit filed by the plaintiff. An application under Order IX Rule 13 of the CPC moved by the appellant for setting aside the said decree also failed and was dismissed by the said Court on 1st March, 2001. An appeal preferred against the said order too failed and was dismissed by Madan B. Lokur, J. on 26th march, 2004 ( 4 ) THE present appeal was filed by the appellant on 26th May,2005 with an application seeking condonation of delay primarily on the ground that the appellant was diligently pursuing another remedy against the judgment and decree in question before this Court. That prayer has been opposed by the respondent, who has filed detailed objections to the same. ( 5 ) HAVING heard learned counsel for the parties, we are of the opinion that the delay in the filing of the appeal deserves to be condoned for the reason that the appellant was pursuing an appellate remedy before this Court against the order passed by the trial court, refusing to set aside the impugned judgment and decree. We, accordingly, allow CM No. 8485/2005 and condone the delay in the filing of this appeal. ( 6 ) MR. We, accordingly, allow CM No. 8485/2005 and condone the delay in the filing of this appeal. ( 6 ) MR. Dua, learned counsel for the appellant submitted that the appeal could be disposed of as settled, as the entire decretal amount payable to the plaintiff-decree holder stands paid to him during the pendency of this appeal. He urged that this Court could take note of the said payments and declare that the decree stood satisfied, in which event, there was nothing that survived for adjudication. We are not inclined to make any such declaration not because we find that the claim made by the appellant is factually incorrect but because, in our opinion, the proper forum in which the question regarding execution, satisfaction and discharge of the decree ought to be raised and examined is the executing court before whom the decree-holder may institute, if not already, instituted proceedings for execution of the decree. It shall be open in any such execution proceedings for the appellant-judgment debtor to argue that the entire decretal amount either stands paid to the decree holder has been deposited in this Court or in the court below. Should any such contention be urged before the executing court, it is expected to look into the same and pass appropriate orders in accordance with law after hearing the decree-holder. ( 7 ) MR. DUA next argued that while the defendant-appellant does not question the correctness of the view taken by the trial Court that a sum of rs. 2,50,000. 00 was borrowed by the defendant-appellant from the plaintiff, the court below fell in a palpable error in decreeing the suit for a sum of rs. 3,97,673. 00, which included interest calculated at 16% p. a. with quarterly rests. He drew our attention to para 4 of the plaint in which the plaintiff has stated:"4. That the defendant was liable to pay interest @ 16% per annum paid and payable quarterly and interest was calculated quarterly and accounted quarterly in the principal amount on the total amount became Rs. 3,97,693. 00 which the defendant is liable to pay to the plaintiff. " ( 8 ) HE urged that the pro-note relied upon by the plaintiff did not stipulate that interest at 16% p. a. shall be calculated with quarterly rests. The award of interest on the principal amount of Rs. 2,50,000. 3,97,693. 00 which the defendant is liable to pay to the plaintiff. " ( 8 ) HE urged that the pro-note relied upon by the plaintiff did not stipulate that interest at 16% p. a. shall be calculated with quarterly rests. The award of interest on the principal amount of Rs. 2,50,000. 00 with quarterly rests taking the total to Rs. 3,97,673. 00 as on the date of filing of the suit was, therefore, unjustified. ( 9 ) THERE is, in our opinion, considerable merit in that submission. The pro-note upon, which the plaintiff placed reliance, no doubt, stipulates interest at the rate of 16% p. a. but does not go further to say that the same shall be calculated with quarterly rests. The assertion of the plaintiff in para 4 of the plaint that interest had to be calculated and paid with quarterly rests was, therefore, unsupported by the stipulation contained in the pro-note. Such being the position, the trial court should not have awarded interest with quarterly rests even when the defendant had not filed a written statement and the suit was being decreed ex-parte. The court was even in a case where the defendant is ex-parte required to apply its mind and determine whether the claim was prima-facie tenable. If the claim for payment of interest with quarterly rests was unsupported by the promissory note relied upon by the plaintiff, there was no question of assuming any such stipulation in favour of the plaintiff on the basis of any independent oral agreement. In para 3 of the plaint the plaintiff had, no doubt, alleged that the parties had agreed to calculate and pay interest with quarterly rests but the said assertion ran contrary to the contents of the promissory note which did not contain any such stipulation. While the rate of interest agreed between the parties could be awarded, the same was bound to be only simple rate of interest reckoned from the date the amount was advanced pendente lite and till realization. ( 10 ) IN the result, we allow this appeal but only in part and to the extent that the plaintiff-respondent shall be entitled to recover from the defendant-appellant herein Rs. 2,50,000. 00 with simple interest calculated at the rate of 16% p. a. from 1/4/1990 till the filing of the suit, pendente lite and till realization with proportionate costs. ( 10 ) IN the result, we allow this appeal but only in part and to the extent that the plaintiff-respondent shall be entitled to recover from the defendant-appellant herein Rs. 2,50,000. 00 with simple interest calculated at the rate of 16% p. a. from 1/4/1990 till the filing of the suit, pendente lite and till realization with proportionate costs. The judgment and decree passed by the trial court shall, to that extent, stand modified.