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2018 DIGILAW 70 (KER)

L. Sunil Kumar v. Ratnamma

2018-01-18

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The prayers in this petition filed under the enabling provisions contained in Art.227 of the Constitution of India are as follows: “1. To issue a writ or order in the nature of declaration that the execution proceedings initiated by Hon'ble Munsiff's Court, Karunagapally in E.P. 47/2015 (Exhibit P-2) is without jurisdiction. 2. To issue a writ or order in the nature of declaration that award passed by Lok Adalath Exhibit P-1 is an executable order binding the parties. 3. To issue a writ or order in the nature of declaration that respondents 1 & 2 have no right to claim a different amount other than shown in Exhibit P-1. 2. Sri. Franklin Chellath, learned counsel appearing for the petitioner/J.D. and Smt. K.G. Bindu, learned counsel appearing for the respondent/Addl. Decree holders. 3. The father of the respondents had instituted a private criminal complaint as S.T.No.321/2014 before the Judicial First Class Magistrate's Court, Karunagappally, in which the petitioner herein was arrayed as accused for offence punishable under Sec.138 of the Negotiable Instruments Act. The dishonoured cheque dated 17.11.2013 involved in that case was for Rs.2 lakhs. During the pendency of the said private criminal complaint, at the request of the complainant and the accused therein, the parties were referred for mediation for resolving their disputes through the Lok Adalath constituted under the Legal Services Authority Act. Based on the consent on both sides, the Lok Adalath rendered Ext.P-1 award dated 14.2.2015 in Lok Adalath case No.35/2017. The said award reads as follows: “Award ST 321/14 Complainant is present. Accused is present. Matter discussed and settled. Accused is agreed to pay Rs. 1,25,000/- to the complainant towards full an final settlement which is to be made on or before 31.3.2015. In default the complainant is entitled to realise the claim amount with interest.” 4. The outer time limit for paying the agreed amount of Rs.1.25 lakhs was only upto 31.3.2015. It is not in dispute that the complainant therein (father of the present respondent herein) had died on 17.3.2015. It is the case of the petitioner that he had in fact appeared before the criminal court concerned on 31.3.2015 and he was ready and willing to hand over the amount of Rs. 1.25 lakhs and since nobody had turned up on behalf of the complainant, he could not hand over the amount, etc. It is the case of the petitioner that he had in fact appeared before the criminal court concerned on 31.3.2015 and he was ready and willing to hand over the amount of Rs. 1.25 lakhs and since nobody had turned up on behalf of the complainant, he could not hand over the amount, etc. That later only he came to know that the complainant had died, etc. After the death of the original complainant, the respondents herein, who are the LRs of the deceased complainant, have filed the present Ext.P-2 E.P. No. 47/2015 for execution of Ext.P-1 Lok Adalath case No.37/2015 on 20.5.2015, claiming for amount of Rs. 2 lakhs along with interest thereon @ 6% p.a. from 17.11.2013 till date. According to the respondents, the petitioner had miserably failed to keep up his word to pay the agreed amount of Rs.1.25 lakhs within the outer time limit of 31.3.2015 and therefore, going by the terms of the award, they are entitled to claim the full cheque amount of Rs.2 lakhs along with interest thereon from the date of cheque (17.11.2013) upto date of actual payment. 5. The Sri. Franklin Chellath, learned counsel for the complainant would contend that the terms and conditions of Ext.P-1 award are crystal clear inasmuch as, on default of the petitioner to pay the amount of Rs.1.25 lakhs before the expiry time limit 31.3.2015, then it is open to the complainant to realise the said entire amount of Rs.1.25 lakhs with interest. Further he would submit that the petitioner had in fact made part payments of Rs. 30,000/- or so to the complainant even before the Adalath proceedings and that, that is why, the deceased complainant had voluntarily agreed to compromise for a lesser amount of Rs.1.25 lakhs, etc. Smt. K.G. Bindu, learned counsel appearing for the respondents/ additional decree holders would contend that the abovesaid contention raised by the petitioner is bereft of any merit and that going by the terms and conditions of Ext.P-1 award, on failure of the petitioner to pay the agreed amount of Rs. 1.25 lakhs before the agreed time limit, then the complainant is entitled to realise the entire amount, which is the entire amount covered by the cheque along with interest thereon. 6. 1.25 lakhs before the agreed time limit, then the complainant is entitled to realise the entire amount, which is the entire amount covered by the cheque along with interest thereon. 6. After hearing both sides, this Court is of the considered opinion that the abovesaid contention raised by Smt. K.G. Bindu, learned counsel appearing for the respondents/ additional decree holders commends acceptance of this Court. The respondents have denied the allegations raised by the petitioner that he had made part payment of Rs. 30,000/- to the deceased complainant even before the Adalath proceedings, etc. This Court is not in a position to examine the correctness or the rival factual pleas in that regard whether or not any part payment has been made. On a plain reading of Ext.P-1 Lok Adalath award dated 14.2.2015, it is clear and beyond dispute that the dishonoured cheque 17.11.2013 is for Rs.2 lakhs in terms of the criminal complaint initiated by the deceased complainant. Therefore, the condition imposed in Ext.P-1 is to be reasonably understood as that the complainant would have agreed to compromise for a lower amount of Rs.1.25 lakhs in comparison with the cheque amount of Rs. 2 lakhs, provided the said amount is paid before the outer time limit of 31.3.2015, as otherwise he is entitled to get the “claim amount” with interest, as clearly stated in the award. The “claim amount” with interest is the full amount covered by the dishonoured cheque along with interest thereon. Accordingly, the abovesaid contention raised by the petitioner is overruled and it is held that the initiation of Ext.P-2 execution petition by the respondents/ additional decree holders claiming for an amount of Rs. 2 lakhs along with 6% interest from 17.11.2013 upto date of actual appears to be correct and tenable. The Apex Court in the decisions as in Baby v. Vijayan reported in 2012 (1) SCC 260 , has held that the criminal courts could award interest @9% p.a. on the cheque amount from the date upto date of actual payment. So the interest claimed in Ext.P-2 E.P. @ 6% appears to be reasonable and fair. For these reasons, this Court is constrained to hold that the impugned Ext.P-2 execution petition does not suffer from any legal infirmity or illegality. Accordingly, the aforecaptioned Original Petition (Civil) stands dismissed.