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2019 DIGILAW 740 (CAL)

Subhas Chandra Pratihar v. State of West Bengal

2019-07-22

I.P.MUKERJI, MD.NIZAMUDDIN

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JUDGMENT : 1. This is the case of a retired senior doctor in the West Bengal Health Service. He retired after 20th July, 2002. 2. He had to file a suit in the City Civil Court to realise his arrear salary and retiral benefits (T.S. 1134 of 2002). That suit was decreed on 30th May, 2003 for Rs.17,97,656/-. He had claimed interest with the decree. In the decree, the court was silent about interest. 3. This amount was paid after three years eight months and twenty one days on 23rd April, 2007. 4. He filed a second suit on 19th May, 2009 (M.S. 363 of 2009) claiming interest. On 7th June, 2010 an order was passed by the learned judge returning the plaint on the ground that the State Administrative Tribunal and not the learned City Civil Court had the jurisdiction to entertain, try and determine the suit. 5. Several points have been urged by learned counsel for the respondents opposing any order sought by the appellant in this appeal. Learned counsel submits that the decree in the first suit was a nullity because it ought to have been referred to the State Administrative Tribunal. The impugned order in the second suit was also justified. The court lacked jurisdiction to entertain the suit and to pass an order. He relied upon Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Anr. reported in (2005) 7 SCC 791 . 6. He also contended citing Section 34(2) of the Code of Civil Procedure that when the decree was silent with regard to interest the court is deemed to have refused it. He also said that since interest was deemed to be refused a fresh suit on that cause of action was barred by law under Order II Rule 2 of the Code of Civil Procedure. 7. Learned counsel’s next point was that the proper remedy for the appellant was by way of an appeal from the decree dated 20th May, 2003 and not by way of a separate suit. 8. We shall deal with the subsequent arguments first. 9. The claim for interest was made in the plaint in the first suit. This is usual in all plaints. We also declare that the appellant was not entitled to any pre-decretal interest because there was neither any agreement nor was it awardable under a statute. 8. We shall deal with the subsequent arguments first. 9. The claim for interest was made in the plaint in the first suit. This is usual in all plaints. We also declare that the appellant was not entitled to any pre-decretal interest because there was neither any agreement nor was it awardable under a statute. Neither was any notice issued by the appellant under the Interest Act, 1978. This position is accepted by learned counsel for the appellant. He is not claiming any pre-decretal interest. 10. Now was the second suit barred under Order II, Rule 2? 11. It is quite possible that immediately upon passing of the decree the judgment debtor makes payment of the decretal amount. In that case, the decree holder is not aggrieved by any silence in the order regarding grant of interest. At the time of filing the plaint or grant of a decree a decree holder cannot have any claim for post-decretal interest. So there is no omission to include the claim in the plaint. 12. It is only with the passage of time when the payment is not made that the right to realise postdecretal interest really crystallizes. In this case, this interest was paid after three years eight months and twenty-one days. By this conduct of the respondents, a fresh cause of action had arisen in favour of the appellant. Now, this cause of action has got nothing to do with his service. This cause of action on non-payment of interest arises from the decree and there is much justification in filing the second suit. The Service Administrative Tribunal had no jurisdiction to hear this kind of a case. 13. Moreover, the respondents did not challenge the decree in the first suit on the ground that the jurisdiction was with the State Administrative Tribunal. In fact they made payment under the decree. In that case, their objection that the second suit arising out of the first suit ought to have been filed in that forum has got no legs to stand upon. 14. The submission of learned counsel for the respondents is contradictory. If his contention is upheld that the decree of the first court was a nullity, then Rs. 17,97,656/- was paid de hors the decree. Then a claim of interest for that amount was maintainable in the second suit. 15. 14. The submission of learned counsel for the respondents is contradictory. If his contention is upheld that the decree of the first court was a nullity, then Rs. 17,97,656/- was paid de hors the decree. Then a claim of interest for that amount was maintainable in the second suit. 15. Therefore, all the contentions of learned counsel for the respondents fail. 16. To put it simply our finding is that Rs.17,97,656/- was paid much belatedly under the decree dated 30th May, 2003 which the respondents accepted. The appellant is not claiming any pre-decreetal interest but only post-decreetal interest. Therefore, for the reasons above, his cause of action arose after passing of the decree, with the passage of time. 17. The above findings effectively disposes of the suit before the court below. Hence there is no point in remanding the matter to the trial court. 18. In those circumstances, in our view the respondents are liable to pay interest under Section 34 of the Code of Civil Procedure to the appellant at the rate of 6% p.a. simple interest from 31st May, 2003 till 23rd April, 2007 on Rs.17,97,656/- to be compounded annually. 19. This amount has to be paid within sixty days from date otherwise the respondents shall pay interest on this principal sum at the rate of 12% p.a. simple interest till payment. The impugned order dated 7th June, 2010 is set aside. The suit before the court below M.S. 363 of 2009 is decreed in terms of this judgment and decree. 20. This appeal is disposed of.