TMI Blog2001 (4) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff supplied 3885 poles. The defendants acknowledged receipt of the poles vide their letter dtd. 7.10.1993. The total value of the poles supplied was Rs. 39,70,065.70P excluding sales tax and including sales tax it was Rs. 42,32,072.02p supplies were made during the period from 23.4.1992 to 30.6.1992 in 11 instalments and bills for payment of value of the poles were submitted instalment wise as follows:- Bill No. Date of Bills Value claimed PSC/03 23.4.1992 Rs. 37.8713.00 PSC/04 28.5.1992 Rs. 60.3051.00 PSC/05 29.5.1992 Rs. 41.9268.00 PSC/06 30.6. 1992 Rs. 51.4635.00 PSC/09 30.7.1992 Rs. 33.2966.00 PSC/20 30.3.1992 Rs. 74.3289.00 PSC/21 30.3. 1992 Rs. 16.2657.00 PSC/22 30.3.1992 Rs. 20.6067.00 PSC/24 31.3.1992 Rs. 43.1140.00 PSC/10 24.8. 1992 Rs. 34.5909.70 PSC/11 7.9.1992 Rs. 94821.22 The defendants made payments of the amounts of the aforesaid bills in six (6) instalments as follows: - Amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and hence the suit is liable to be dismissed. Following are the issues framed in the suit:- 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by law of limitation? 4. Whether the amount recoverable was Rs. 42,32,056.70P or Rs. 39,70,065.70P on account of supply of poles made by the plaintiff to the defendants? 5. Whether the plaintiff is entitled to realise interest as per provision of the interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act from 23.9.1992 on the principal amount? 6. Whether the claim of the plaintiff is inflated? 7. To what relief, if any, the plaintiff is entitled? 5. The plaintiff examined one witness and exhibited two documents as Exts. 1 and 2. The defendant examined one witness and exhibited three documents marked as Exts. 'Ka', 'Kha' and 'Ga'. The whole claim made in the suit is for recovery of the amount of interest on the amount of bills pending for payment of the value of goods supplied by the plaintiff and the claim was made under the provision of Interest on Delayed Payments to Small Scale and Ancillary Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancillary industrial undertakings. 3. An Ordinance, namely, the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Ordinance, 1992, was, therefore, promulgated by the President on the 23rd September. 1992." Section 3 of the Act provides as follows: "3. Liability of buyer to make payment. - Where any supplier supplies any goods or renders any services to any buyer shall make payment therefore on or before the date agreed upon between him and the supplier in writing or, where there is no agreement in this behalf before the appointed date: (Provides that in no case the period agreed upon between the supplier and the buyer in writing shall exceed one hundred and twenty days from the day of acceptance or the day of deemed acceptance)." 6. It may be stated herein that this provision was inserted w.e.f. 10.8.1998 i.e. after the decree. So the benefit of this provision shall not apply to the instant suit. The present section 4 of the Act has been substituted from 10.8.1998. It is the earlier section which will apply to the present case. Earlier section reds as follows : "4. Date from which and rate at which interest is payable.- Where any buyer f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im order of this court already half of the amount has been paid to the plaintiff-respondent. 10. The basic question in this case is that as all the bills were paid and cleared earlier to the commencement of the Act, whether the plaintiff can have any remedy by way of a suit only for the interest. The second question is whether a claim which has come to an end on receipt of the entire money of the bill can be revived by the present act. 11. Let us first take up the question whether the right to sue for the interest survives after accepting the payment made for the bills. This aspect of the matter came up for consideration in AIR 1963 SC 250 (Lala Kapurchand Godha and Ors. v. Mir Nawab Himayatalikhan Azamjah) wherein the Supreme Court in para 9 has laid down the law as follows: "(a) When a statute clearly covers a case, it is hardly necessary to refer to decisions. In difference, however, to the arguments advanced on behalf of the appellants, we refer to the two decisions on which learned counsel for the appellants has relied. One is the decision in Day v. Mclea, (1889) 22 QBD 610. In that case the plaintiffs made a claim against the defendants for a sum of money as damages f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in this case as will be seen from the documents there was no agreement whatsoever to pay interest on delayed payment and the payment was made earlier and having received the principal amount, now they cannot sue only for the Interest in view of section 6(1) of the Act which is quoted below: "6. Recovery of amount due.- (I) The amount due from a buyer, together with the amount of interest calculated in accordance with the provisions of Sections 4 and 5, shall be recoverable by the supplier from the buyer by way of a suit or other proceeding under any law for the time being in force." 13. A bare reading of the section itself will show that there must be some amount due from a buyer and along with that amount a claim for interest may be made. No amount being due from the buyer, mere suit only for interest is not maintainable in view of Section 6( 1) of the Act quoted above. 14. In AIR 1972 Allahabad 176 (Mesrs Amar Nath Chand Prakash v. Messrs Bharat Heavy Electrical Limited), a Division Bench of the Allahabad High Court pointed out that if the principal amount is received in discharge of the whole claim and at the time of acceptance of the payment, if no reservation was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a cautious approach otherwise it would be tyrannous. If a court is vested with a power to be exercised in the interest of justice, the court has a duty to exercise it where it ought to be exercised in order to uphold the cause of justice. The court cannot use that power in order to give some undue benefits or wrongful gain to enable the party to make wrongful gain. The court must find out first whether it is a proper case to exercise the power and thereafter it has a duty to prescribe the extent to which this power is to be exercised. Another thing which the trial Court lost sight in this particular case is that the Act itself is prospective in nature and the claims which were settled or discharged before coming into force of this Act and which were not reserved as indicated above cannot be given a new lease of life by the application of this Act. 20. Even in cases where the buyer is liable to pay interest by virtue of this Act it is the duty of the court to find out the amount of loss suffered by the delayed payment and only thereafter interest can be paid. This Act cannot be used as an open dagger to stab somebody as and when there is delayed payment. If that interpretation i ..... 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