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2024 DIGILAW 560 (MP)

Ashok Lalwani v. State Bank of India

2024-08-12

SANJAY DWIVEDI

body2024
ORDER 1. At the joint request of parties, the matter is finally heard. 2. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is assailing the validity of order dated 7.1.2023 whereby the Executing Court rejected the application in which the petitioner/decree holder has claimed future interest over the amount unpaid to him and also not paid in time as specified by the High Court and, therefore, the respondent/Bank is not inclined to give interest for the period more than the period of six months from the date of order. 3. Shri Lalwani has submitted that the Executing Court restrained him to withdraw the amount of interest deposited by the respondent/Bank in pursuance of the order dated 6.12.2018 passed in Review Petition No.1596 of 2018 whereby the order passed by the High Court in M.P. No.1873 of 2017 vacating the interim order granted by the First Appellate Court on 15.5.2017 exercising the power provided under Order 41 Rule 5 of the Code of Civil Procedure and permitting the petitioner to withdraw the amount deposited by the respondent/Bank subject to furnishing a surety before withdrawing the amount, has been stayed. 4. However, in review petition preferred by the respondent/Bank i.e. Review Petition No.1596 of 2018, the High Court again vide order dated 6.12.2018 on an undertaking given by the learned counsel for the present petitioner for not withdrawing the amount so deposited by the respondent/Bank restrained the decree holder/petitioner from withdrawing the decretal amount deposited by the judgment debtor/Bank. The said review petition was disposed of vide order dated 10.11.2021 and modification to the typographical error as shown in paragraph-9 of the order passed by the Appellate Court in M.P. No.1873 of 2017 was directed to be rectified, but remaining order of the Court was maintained and as such, according to the petitioner, the decree holder withdrawn the amount only on 13.12.2021 and, therefore, the present petitioner is also claiming the interest over the decretal amount deposited by the judgment debtor/Bank w.e.f. 11.11.2018 till 13.12.2021. 5. Shri Lalwani has further submitted that because of the interim order granted by this Court in review petition, the petitioner has been deprived to withdraw the decretal amount deposited by the respondent/Bank and as such, applying the principles of actus curiae neminem gravabit, the respondent/Bank be directed to pay the interest to the petitioner for that period also. 6. 5. Shri Lalwani has further submitted that because of the interim order granted by this Court in review petition, the petitioner has been deprived to withdraw the decretal amount deposited by the respondent/Bank and as such, applying the principles of actus curiae neminem gravabit, the respondent/Bank be directed to pay the interest to the petitioner for that period also. 6. However, learned counsel for the respondent/Bank has opposed the submissions made by the petitioner and submitted that it was not an interim order granted by the Court in the review petition on 6.12.2018, but the counsel for the petitioner himself has given an undertaking for not withdrawing the decretal amount from the Executing Court and, therefore, the principle on which the petitioner is relying upon is not applicable and the respondent/Bank cannot be held responsible and penalized for such undertaking given by the counsel for the petitioner himself. 7. I have considered the submissions made by the parties and also gone through the judgments on which the petitioner has placed reliance i.e. AIR 1967 SC 762 (Joint Family of Udayan Chinubhai, etc. v. Commissioner of Income-tax, Gujarat) and (2020) 15 SCC 146 (Odisha Forest Development Corporation Limited v. Anupam Traders and another) so also the principle relied upon by the petitioner i.e. actus curiae neminem gravabit. 8. However, looking to the facts and circumstances of the case and the order passed by the Court in review petition, it is clear that both the parties i.e. petitioner and respondent are fighting against each other for their rights and the petitioner claimed interest over the delayed payment as per section 34 of the CPC and also sought vacating the interim order granted in pending appeal by the Appellate Court exercising the power provided under Order 41 rule 5 of the CPC. Thereafter, against the order of the High Court passed in M.P. No.1873 of 2017 whereby the interim order granted by the Appellate Court had been vacated, a review petition was filed by the respondent/Bank, in which, the counsel for the respondent/present petitioner also made appearance and on the first date of hearing i.e. on 6.12.2018, he has given undertaking that the amount deposited by the Bank shall not be withdrawn by the present petitioner. The undertaking given on behalf of the petitioner cannot be treated to be an interim order given by the High Court and ultimately, the review petition preferred by the Bank got disposed of vide order dated 10.11.2021 and thereafter, the petitioner has withdrawn the decretal amount deposited by the respondent/Bank. 9. Even otherwise, it is not a case in which the respondent restained the money otherwise payable to the petitioner and could have profitably utilized the same, but it an amount already deposited by them lying with CCD, but not with the respondent. Therefore, the order passed by this Court should not suffer by the respondent because they have not enjoyed the money and used the same for their own purpose. 10. The claim with regard to interest over the decretal amount in pending review petition applying the principle of actus curiae neminem gravabit is not proper for the reason that no third party has suffered loss, but it is the Judgment Debtor and Decree Holder, who are fighting against each other that too on the basis of undertaking given by the learned counsel for petitioner himself saying that the decretal amount will not be withdrawn. In such circumstances, if the Bank is directed to pay interest for that period then that would not be proper on the part of the Court because in pursuance of the undertaking given by the counsel for the petitioner, an order was passed by this Court. 11. So far as the cases on which the petitioner has placed reliance are concerned, those are not applicable in the present case for the reason that the facts of the present case are altogether different than that of the cases relied upon by the petitioner. 12. Thus, in the opinion of this Court, it is not a fit case in which the respondent/Bank can be directed to pay interest during the pendency of review petition. The claim raised by the petitioner being misconceived, is hereby dismissed.