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2024 DIGILAW 557 (MP)

Ashok Lalwani v. State Bank of India

2024-08-12

SANJAY DWIVEDI

body2024
ORDER 1. Since pleadings are complete, therefore, with the consent of both the parties, the matter is heard finally. 2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is not only assailing the validity of order dated 17.5.2019 but also claiming that the order dated 6.12.2018 be declared to be bad in law. 3. Shri Lalwani has submitted that the Executing Court by impugned order dated 6.12.2018 had withheld the amount suo motu which has been deposited by the Judgment Debtor in pursuance of the decree dated 11.12.2015. He has submitted that as per the decree dated 11.12.2015, the Judgment Debtor was directed to deposit the amount of rent from 1.8.2007 to 31.3.2010 @ Rs.7302/- per month and from 1.4.2010 till the date of filing of suit i.e. 7.3.2013 @ Rs.14960/- per month and the said amount was directed to be deposited within a period of 60 days for which interest @12% was inflicted upon the said amount of arrears. 4. The dispute in this case is that the amount was not deposited by the Judgment Debtor within the given period of 60 days but it got deposited only on 11.10.2018 including the interest @12% as per the decree dated 11.12.2015. 5. However, Shri Shroti has disputed the said position saying that the amount carries interest only till the date of decree but not thereafter. He has relied upon the provision of section 34 of the Code of Civil Procedure, in which, it is provided as to in what manner, the interest can be imposed over the arrears of amount and as per Shri Shroti, since no order was passed by the trial Court in this regard and in fact, it does not contain in the decree itself that the interest for remaining period can also be charged from the Judgment Debtor, therefore, even otherwise if payment is not made by the Judgment Debtor within 60 days, then under such circumstances, no interest can be charged from them as per subsection (2) of section 34 of CPC. 6. Petitioner has submitted that the Judgment Debtor had deposited the amount including the interest as awarded by the trial Court @12% till 30.9.2018 and there was no objection ever raised by the Judgment Debtor on the said calculation. 6. Petitioner has submitted that the Judgment Debtor had deposited the amount including the interest as awarded by the trial Court @12% till 30.9.2018 and there was no objection ever raised by the Judgment Debtor on the said calculation. However, it was the trial Court, which has raised objection suo motu and not permitted the petitioner to withdraw the said amount which was carrying interest @12% from the date of decree till 30.9.2018. He has submitted that once the amount has been deposited by the Judgment Debtor, the Executing Court becomes functus officio and under such circumstances, the Executing Court had no authority to raise such objection. According to him, at the most, the Executing Court could only permit the Decree Holder to withdraw the amount as per law. 7. In support of his submissions, the petitioner has placed reliance upon the judgments reported in (2003) 7 SCC 448 (State of Maharashtra and Others v. Maimuma Banu and Others), (2014) 16 SCC 760 (State of Uttar Pradesh and Others v. Jaswant Sugar Mills Limited and Others) and AIR 1992 SC 732 (Secretary to Government of Orissa and Others v. Raghunath Mohapatra). 8. Shri Shroti, learned counsel appearing for the respondent has opposed the said submission of the petitioner and submitted that the Judgment Debtor had not deposited the amount voluntarily whereas it was deposited in pursuance of the order of trial Court, which reflects from the order-sheet of the Executing Court itself. He has also submitted that within the given time of 60 days, the Judgment Debtor had filed an appeal, in which, stay was granted by the Appellate Court on 25.2.2016 and that stay was continued up to 9.8.2018 and as such, during that period, the Judgment Debtor is not required to pay any interest to the Decree Holder and even otherwise, he has submitted that for withdrawal of the said amount, the Decree Holder was required to deposit the Court fee, which he deposited on 9.10.2018. He has submitted that as per the decree, the amount was payable to the Decree Holder only when the Court fee is paid by him and the Court fee was paid only on 9.10.2018 and the amount was deposited on 11.10.2018. 9. He has submitted that as per the decree, the amount was payable to the Decree Holder only when the Court fee is paid by him and the Court fee was paid only on 9.10.2018 and the amount was deposited on 11.10.2018. 9. Shri Lalwani has submitted that merely because interim protection was granted to the Judgment Debtor, it does not mean that the Decree Holder can be deprived to get the interest as has been awarded by the trial Court. He has submitted that the Court fee could not be deposited earlier because there was stay from the Court and only after vacating the interim order, the Decree Holder paid the Court fee. 10. I have heard the rival submissions of parties and perused the record. 11. It is an admitted position that the judgment and decree was passed in favour of the petitioner on 9.12.2015 and 11.12.2015 respectively, wherein it is mentioned that the Judgment Debtor would pay the rent of premises @ Rs.7302/- per month w.e.f. 1.8.2007 to 31.3.2010 and from 1.4.2010 till 7.3.2013 would pay rent @ Rs.14960/- per month. It is also directed that after calculating the arrears, the Judgment Debtor would pay the same with interest @12% per annum within a period of 60 days. Although, the Judgment Debtor could not make the payment within the given period of 60 days but deposited the same only on 11.10.2018 including the interest @12% as per the decree dated 11.12.2015. 12. Shri Shroti appearing for the respondent has objected about the payment of interest beyond the period of 60 days from the date of judgment and decree saying that sub-section (2) of section 34 of CPC bars any such payment and, therefore, no interest can be given to the Decree Holder over the arrears of rent beyond the period of 60 days from the date of judgment and decree. 13. I have gone through the respective provision i.e. section 34 of CPC, which reads as under:- “34. 13. I have gone through the respective provision i.e. section 34 of CPC, which reads as under:- “34. Interest.-- (1) Where and in so far 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 nationalised 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.” 14. Considering the aforesaid provision, this Court is of the opinion that section 34 is an enabling provision granting discretion to the Court that while passing decree, the Court may also award interest. Considering the aforesaid provision, this Court is of the opinion that section 34 is an enabling provision granting discretion to the Court that while passing decree, the Court may also award interest. As per the decree passed, the Court has granted 60 days’ time to the Judgment Debtor to deposit the amount with interest @12% but that does not mean, if amount is not deposited within the given time, the interest as awarded by the Court cannot be claimed for the delayed period i.e. beyond 60 days and payment made at later point of time, accordingly, 12% interest shall be charged but not more than that till actual date of payment from the date of judgment and decree. 15. However, the submissions made by Shri Shroti is unacceptable because sub-section (2) of section 34 of CPC cannot be interpreted in the manner, in which the counsel for the respondent is doing. For making delayed payment, neither the Decree Holder can be held responsible nor he can be made to suffer. Once the decision has been taken by the Court to pay the interest from the date of judgment and decree till the date actual payment made, the interest awarded will be continued and can be charged by the Decree Holder and, therefore, the order passed by the Executing Court dated 6.12.2018 holding that the interest @12% would only be charged for the period of 60 days and not beyond that, is absolutely illegal and not sustainable in the eyes of law. Only because the decree does not contain that if payment is made beyond the period of 60 days then 12% interest would carry or not, in my opinion, such observation of the Executing Court is beyond its jurisdiction and contrary to the provision of sub-section (2) of section 34 of CPC. Once interest is awarded directing the Judgment Debtor to deposit the amount within the specific time and if it is not deposited within the given the time, but deposited beyond the given period, the same rate of interest could be charged and would be applicable even for the delayed payment of arrears. Once interest is awarded directing the Judgment Debtor to deposit the amount within the specific time and if it is not deposited within the given the time, but deposited beyond the given period, the same rate of interest could be charged and would be applicable even for the delayed payment of arrears. In my onion, sub-section (2) of section 34 of CPC is not applicable in the present case because from the language used in the respective provision it is clear that it is applicable only when the Court is silent in awarding interest, but here in this case, it is the Court which has granted interest @12%, therefore, the submission made by the counsel for the respondent is absolutely misconceived and not tenable. 16. Section 34 of CPC is a discretionary power and deals with the power of the Court to impose cost for the post litigation period. In a case reported in AIR 2005 Del 2 parties being Laxmi Chand Taxtiles v. Union of India and Ors., the High Court of Delhi considering the aspect of the matter has explained the power provided under section 34 of CPC. In the present case also, the Court had awarded interest @12% over the arrears of rent for the post litigation period and that interest will carry till the date actual payment made and as such, the order passed by the Executive Court, in my opinion, is not sustainable. The observation made by the High Court of Delhi with regard to section 34 of CPC is as under:- “13. Section 34 of the Code of Civil Procedure deals with interest for the post litigation period. According to this provision where a decree is for payment of money, the court may order interest at a reasonable rate on the principal sum adjudged from the date of filing of the suit till the date of decree, in addition to any interest adjudged for any period prior to institution of the suit. However, the Indian Railways Act or the Rules framed thereunder do not contain an express provision making section 34 of the Code of Civil Procedure applicable to proceedings before the claims commissioner. Under the provisions of the Indian Railways Act, the claimant would and could have resorted to a suit for damages in a civil court, In a suit of such nature, the civil Court may award post litigation interest. Under the provisions of the Indian Railways Act, the claimant would and could have resorted to a suit for damages in a civil court, In a suit of such nature, the civil Court may award post litigation interest. In our considered opinion denial of post litigation interest would amount to depriving the appellant herein of compensation for the loss of his goods from the railways for no default on his part. In that view of the matter, the provisions of section 34 of the Code of Civil Procedure would be applicable to the facts and circumstances of the present case. In this connection, we may appropriately derive support from a Division Bench decision of the Madhya Pradesh High Court in the case of Union of India v. Smt. Laxmipati and Another, AIR 1995 M.P. 90 and a decision of the Madras High Court in Union of India and Another v. Khandelwal Bros. (P) Ltd. and Another, AIR 1975 Madras 389.” 17. With the aforesaid enunciation of law, this petition is allowed. The orders dated 6.12.2018 and 17.5.2019 are hereby set aside. No order as to cost.