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2013 DIGILAW 1764 (BOM)

Decmae v. State of Goa

2013-08-30

F.M.REIS

body2013
JUDGMENT F.M. Reis, J.- Heard Mr. A. Kakodkar, learned counsel appearing for the appellant and Mr. N. Pai, learned Additional Government Advocate appearing for the respondents. 2. The above appeal challenges the judgment dated 27.12.2007 passed by the learned District Judge at Panaji. in Civil Suit No. 14/2007 whereby the suit filed by the appellant was partly decreed and the respondents were directed to pay a sum of Rs.2,53,037/- together with interest at the rate of 6% per annum with effect from 28.06.2003 until the actual payment. 3. Mr. A. Kakodkar, learned counsel appearing for the appellant has assailed the impugned judgment only on the ground that the respondents have illegally withheld the amount payable to the appellant pursuant to the determination of a sum of Rs.2,53,037/-from the year 2003 which resulted in gross loss to the appellant. The learned counsel further pointed out that as such amount was not received by the appellant an overdraft facility which was availed by the appellant from the Federal Bank had to be kept alive which resulted in paying interest ranging from 11% to 16% per annum. The learned counsel further pointed out that the appellant has also sought for compensation of Rs.2,00.000/- per year for the delay in the payment of such amount. 'The learned counsel further pointed out that the learned Judge has granted interest only at the rate of 6% per annum on a spacious ground that the Government was involved. The learned counsel further pointed out that the delay in effecting such amount according to the respondents is due to administrative reason. The learned counsel further pointed out that these reasons are not justifiable the delay in the payment to the appellant who had admittedly carried out the work for the respondents. The learned counsel further pointed out that the department to whom the work was carried out by the appellant had determined that the amount of Rs.2,53,037/- was payable to the appellant as on 28.06.2003. The learned counsel as such submits that withholding the said amount has resulted in gross loss to the appellant and as such the impugned d judgment to the extent of granting interest at the rate of 6% per annum deserves to be quashed and set aside and the interest at the rate of 18% per annum is to be awarded. 4. On the other hand. Mr. 4. On the other hand. Mr. N. Pai, learned Additional Government Advocate appearing for the respondents has supported the impugned judgment. The learned counsel has pointed out that this is not a commercial transaction and as such in terms of Section 34 of the Civil Procedure Code, the question of granting any interest more than 6% would not arise. The learned counsel further pointed out that there was delay in executing the work by the appellant and as such the question of granting enhanced rate of interest would not arise. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge was justified to grant the relief as awarded in the impugned judgment. The learned counsel has thereafter pointed out that considering the facts and circumstances of the case and taking note of the fact that there was breach committed by the appellant, the question of granting enhanced interest would a not arise. The learned counsel as such submits that the above appeal deserves to be rejected. 5. Upon considering the submissions advanced by the learned counsel as well as on going through the material on record, the following point arises for my determination in the present appeal : POINT FOR DETERMINATION (i) Whether the learned Judge was justified to fix the interest at the rate of 6% per annum? 6. On perusal of the records and the evidence of PW 3 who is the Senior Manager of the Federal Bank, it has been stated therein that the appellant was a regular customer of the said bank and that he has availed of an overdraft facility. It is further stated by the said manager that such facility was in force from the year 2000. PW 3 has deposed that the interest payable on such overdraft facility was ranging from 11.5% to 16.28% during the relevant time. It is further stated that the appellant has in fact paid such interest to the bank. On perusal of the cross examination of the said witness, this aspect has not been seriously disputed by the respondents. In the present case, it is not in dispute that prior to the filing of the suit a notice was issued by the appellant claiming interest at the rate of 24% per annum. The appellant had also put up a claim of compensation on account of delay in such payment. In the present case, it is not in dispute that prior to the filing of the suit a notice was issued by the appellant claiming interest at the rate of 24% per annum. The appellant had also put up a claim of compensation on account of delay in such payment. On perusal of the records and the evidence adduced by the appellant. I find no satisfactory evidence has been adduced by the appellant to substantiate his claim of damages. Hence, the prayer as far as the claim of damages/compensation is concerned stands rejected. 7. Be that as it may, the only aspect to be considered is as to what rate of interest the appellant would be entitled. In the present case, the learned Judge while passing the impugned judgment has categorically come to the conclusion that the respondents have illegally withhold the amount which was payable to the appellant and the amount was already determined to be a sum of Rs.2,53,037/- in the year 2003. The Apex Court in the judgment reported in (2003) 11 SCC 17 in the case of Aditya Mass Communications (P) lid. v. A.P.S.R.T.C. has observed at para 8 thus : "8. The facts narrated hereinabove clearly show that the respondent has retained the money belonging to the appellant without authority of law and has driven the appellant to a series of litigations, therefore, this fact itself should have been sufficient to refuse the request of the respondent made before the High Court for reduction of the rate of interest. The quantum of interest a Court may allow in a given case is governed by the facts of the case and not by any precedent law unless, of course, limited by a statute. If a Court comes to the conclusion on a given set of facts that a party has been wrongly denied the use of its own money, it is the duty of the Court to see that the said party is appropriately compensated. In the instant case, we are of the opinion that the respondent has deprived the appellant of its rightful use of the money. Therefore, the interest awarded by the trial Court, to say the least, was most reasonable. In the instant case, we are of the opinion that the respondent has deprived the appellant of its rightful use of the money. Therefore, the interest awarded by the trial Court, to say the least, was most reasonable. We also notice that the High Court has not given any reason except referring to the judgments of this Court in the case of Sovintorg (India) Ltd v. State Bank of India and Ghaziabad Development Authority v. Union of India. As stated above, the facts of this case do not justify the application of the principle laid down by this Court in those judgments." 8. Taking note of the observations by the Apex Court in the case of Aditya Mass Communications (P) Ltd. (supra), it has been observed therein that if the Court comes to the conclusion on a given set of facts that the party has been wrongly denied the use of its own money, it is the duty of the Court to see that such party is appropriately compensated. The Apex Court in fact approved the payment of interest at the rate of 12% per annum in the said case by the trial Court. In the present case, taking note of the findings of the learned Judge, it c cannot be disputed that the amount was withheld by the respondents without any reasonable cause which prevented the appellant to enjoy his own money. Considering the deposition of PW 3, the appellant apparently has paid interest to the bank on account of an overdraft facility which was ranging from 11.5% to 16.28% at the relevant time. In such circumstances. I find that the learned Judge was not justified to award interest at the rate of 6% per annum when the appellant has established that the interest paid by the appellant was ranging from 11% to 16% per annum to the bank where the appellant had availed of an overdraft facility. In the facts and circumstances of the present case and taking note of the material on record, I find that it would appropriate to award interest to the appellant to compensate for the delay in payment of the said amount which would be at the rate of 12% per annum instead of 6% per annum awarded by the Trial Judge. The point for determination is answered accordingly. 9. In view of the above. The point for determination is answered accordingly. 9. In view of the above. I pass the following: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree passed by the learned Judge is modified to the extent of the rate of interest awarded at the rate of 6% per annum is substituted by interest at the rate of 12% per annum. (iii) The remaining part of the judgment stands confirmed. (iv) The appeal stands disposed of accordingly.