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2019 DIGILAW 575 (KAR)

Siddappa v. Sushma

2019-03-07

G.NARENDAR

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JUDGMENT : G. Narendar, J. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 2. The instant writ petition is preferred praying to set aside the order passed by the Additional Senior Civil Judge, Jamakhandi in Misc.No.18/2012, Dated 20.02.2014, Vide Annexure-H to the writ petition and for further direction to the respondents to pay the principal amount with upto date interest in the ends of justice. The Trial Court by its judgment dated 17.08.2001 in O.S.No.175/1995, was pleased to allow the suit of the plaintiff/petitioner herein and while so allowing, was pleased to pass the order as under:- "The suit of the plaintiff is decreed with costs. The defendants-1 and 2 are directed to pay Rs.1,80,000/- to the plaintiff within six months from the date of this order. Draw decree accordingly" 3. Further by decree dated 21.08.2001 passed decree as under: "It is ordered and decreed that the suit of the plaintiff is decreed with cost. The defendant 1 and 2 are directed to pay Rs.1,80,000/- to the plaintiff within six months from the date of this order. Given under my hand and seal of the Court this 17th day of August 2001." 4. The respondent aggrieved by the same took up the matter in appeal by way of Regular First Appeal registered as RFA No.116/2002. This Court after going through the material on record was pleased to dismiss the appeal and while so dismissing the appeal, directed as follows:- "The appellants are directed to pay the loan amount to the plaintiff within three months from the date of receipt of copy of this judgment." 5. The respondent, pursuant to the judgment of this Court dated 13.06.2012 rendered in RFA No.116/2002 made a memorandum of petition under Section 151 of CPC seeking permission of the Court to deposit the decreetal amount in compliance with the order of this Court rendered in RFA No.116/2002. The Trial Court then proceeded in passing the impugned order in Misc. No.18/2012. 6. The Trial Court, going through the judgment and decree and the order in first appeal, has been pleased to allow the miscellaneous application and thereby permitted the respondent to deposit the amount. It is the contended by the petitioner that the interest ought to have been awarded and that the respondent cannot be permitted to get away with depositing only the loan amount and not paying the interest. It is the contended by the petitioner that the interest ought to have been awarded and that the respondent cannot be permitted to get away with depositing only the loan amount and not paying the interest. 7. It is not in dispute that neither the Trial Court nor the Appellate Court has deemed it fit to award any interest. That being the case, it is a moot question as to whether this Court exercising jurisdiction under the provision of Article 227 of the Constitution of India can sit in appeal over the correctness of the judgment and decree of the Trial Court and thereby make an order granting interest. The answer to the contention made on behalf of the petitioner lies in the provisions of Section 3 of the Interest Act, 1978 and Section 34 of the Code of Civil Procedure, 1908, reads as under:- Section 3 of the Interest Act: 3. Power of court to allow interest. (1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say, (a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings; (b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings: Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment. (2) Where, in any such proceedings as are mentioned in sub-section (1), (a) judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and (b) the sum represents or includes damages in respect of personal injuries to the plaintiff or any other person, or in respect of a person's death, then, the power conferred by that sub-section shall be exercised so as to include in that sum interest on those damages or on such part of them as the court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages. (3) Nothing in this section, (a) shall apply in relation to (i) any debt or damages upon which interest is payable as of right, by virtue of any agreement; or (ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement; (b) shall affect (i) the compensation recoverable for the dishonour of a bill of exchange, promissory note or cheque, as defined in the Negotiable Instruments Act, 1881 (26 of 1881); or (ii) the provisions of rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908); (c) shall empower the court to award interest upon interest. Section 34 of the Code of Civil Procedure, 1908 34. Section 34 of the Code of Civil Procedure, 1908 34. Interest (1) Where and insofar as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent per annum, as the court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the court thinks fit: [Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. Explanation I: In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970). Explanation II: For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.] (2) Where such a decree is silent with respect to the payment of further interest [on such principal sum] from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have refused such interest, and a separate suit therefor shall not lie. 8. From the reading of the above, it is apparent that it is the Court which is dealing with the claim for payment of money or dealing with the issue which relates to commercial transaction alone can grant interest while disposing off the claim in favour of the claimant or by a Court which awards any sum by way of damages. Hence, admittedly, the judgment and decree has become final as the same has not been appealed against by the petitioner. In view of the above discussions, the instant writ petition requires to be rejected and is accordingly, rejected.