TMI Blog2000 (2) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 in the Civil Court and as earlier amount has been kept in the custody of the Government since 1983. Looking to the circumstances, I called upon the learned Counsel for appellant in both appeals to make submissions. 2. The facts of the case in the nutshell are that, the plaintiff who is appellant in Appeal No. 479 of 1997 had filed this suit for recovery of a sum of ₹ 1,10,500/- with future interest at 24% p.a. from the date of suit till the date of realization. The plaintiff/appellant alleged that the plaintiff participated in the auction purchase of standing timber, eucalyptus of Village Panchayat of Yeldur village, Srinivasapur Taluk, Kolar District, for a sum of ₹ 1,03,000/-. In pursuance of the auction and as the highest bidder the plaintiff had earlier deposited a sum of ₹ 5,000/-and later another sum of ₹ 5,000/- and lastly the sum of ₹ 93,000/-respectively in total Rs. value, with the State Bank of Mysore in Srinivasapur. Thus, according to plaintiff/appellant in R.F.A. No. 479 of 1997 he deposited in total a sum of ₹ 1,03,000/- (One lac three thousand rupees) in pursuance auction referred to above. According to the plaintiff, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- from 1-7-1983. The plaintiff claimed interest on that amount of ₹ 1,03,000/- at the rate of 11% p.a. compounded quarterly and the rate alleged to be the rate prevailing in 1983. The plaintiff also claimed future interest on that amount. 3. The defendant filed their written statement. There is no dispute that plaintiff participated in the auction. Defendant admit that plaintiff had made deposit of ₹ 1,03,000/-, but though he was the highest bidder, his bid was not accepted and sale was not confirmed in his favour. They took the plea that plaintiff is not entitled for interest on the aforesaid amount of ₹ 1,03,000/-. In alternative, the defendant has taken the plea that plaintiff may be entitled to ₹ 33,475/- in view of the order of the High Court. The defendant denied that the plaintiff is entitled to any relief. 4. On the basis of the pleadings of the parties, the Trial Court framed the following issues: (1) Whether plaintiff proves that he is entitled to claim interest on a sum of ₹ 1,03,000/- namely the amount deposited by him as a highest bidder, as pleaded in paras 5 and 6 of the plaint? (2) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants' appeal is R.F.A. No. 660 of 1997. As both the appeals arise from the common judgment both the appeals are being disposed of by the common judgment. 7. In Appeal No. 479 of 1997, Sri K. Prabhakar contended that in view of the judgment of this Court dated 7th August, 1989, the plaintiff is entitled to interest on the amount deposited in the State Bank of Mysore that would have earned. It is submitted that on the amount paid by the plaintiff to the tune of ₹ 1,03,000/- he has been entitled to interest thereon at the rate prevalent in the bank. The learned Counsel contended that the documents furnished by the bank Ext. P-9 clearly shows that according to it, the plaintiff is entitled to interest at the rate of 11% from July, 1983 onwards. The learned Counsel for the appellant emphasized that the expression used in the order of the High Court Ext. P-1 is not the interest that which is earned, but it is the interest which deposits would have earned means if a proper deposit had been made and whatever interest would have been payable by the Bank on that amount and whatever would have been earned, the plaintiff would have been entitled for decree of that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head of revenue deposits account and so no interest was payable and plaintiff is not entitled for decree. The learned Government Counsel submitted, as such the Trial Court decree decreeing the suit is illegal. He submitted that the G.O. was not summoned by the plaintiff and therefore no adverse inference should have been raised against the defendant under Section 114 of the Evidence Act on account of failure to produce the G.O. 8. In the rejoinder to the arguments of the learned Government Counsel and the reply to arguments made by the Government Counsel in the Government appeal, Sri K. Prabhakar submitted that there was no specific denial of payment of interest till reply to plaintiffs notice was given by the Government vide reply dated 18-7-1990 and on limitation being counted from 18-7-1990 the suit filed on 5-7-1993 is within time, even if Article 113 is applied. Sri K. Prabhakar lastly submitted that decree passed by Court below decreeing the plaintiffs claim to the ₹ 1,10,550/- does not suffer from an error of fact or law, only error is failure of Court below to award future interest claim. So the extent of ₹ 1,10,550/- as decreed no inference need be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff/appellant highest bid the defendants i.e., Government should have returned the sum of ₹ 1,03,000/- to the plaintiff/appellant instead of keeping it in its coffer for good long years, causing loss to plaintiff, as the plaintiff could have been earned thereon interest at the bank rate had it been returned or refunded to him at the earliest; by depositing in his own name in the Bank. The next question is whether the plaintiff would be entitled for a decree for the amount claimed, even if it is found that he (the plaintiff) has been entitled to the interest on amount of ₹ 1,03,000/- and also on the amount of interest which has not been paid and accumulated till it is paid. On this point of answer and passing of a decree in plaintiff's favour depends on decision of the question whether suit giving raise to the appeal has been filed within the period of limitation. No doubt, principal amount was paid on 27-12-1989. The question is whether the suit was filed within time. It is no doubt true that plea of limitation was not raised in the written statement and no issue was pressed. Had there been no argument at all at the stage of final hearing before Trial C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply to suits, therefore there cannot arise any question of condonation of delay in filing the suit and further in view of Supreme Court decision, the equity can have no consideration in the matter where there is no power to condone the delay. In my opinion, the Trial Court erred in law in applying of Article 55 of the Schedule to the case. It will be profitable at this stage to refer the Articles 25, 55 and 113 of the Schedule to Limitation Act, 1963. Description of suit Period of limitation Time from which period begins to run 25. For money payable for interest upon money due from the defendant to the plaintiff. 3 years When the interest 55. For compensation for the breach of any contract, express or implied not herein specially provided for. 3 years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases. 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. 3 years When the right to sue accrues. 10. In my opinion it has been rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure Code required two months notice should be given before filing the suit. It means until then suit could not be instituted, so cause of action for the suit even for the first time might have accrued on 27-12-1989. But the right to sue can also be said to have arisen only when on 18-7-1990 reply to notice was given by defendants with clear denial. There is a difference in phraseology of Article 58 and Article 113. The language used in Article 113 if compared with Article 58 indicates the difference. In Article 113, the language used is 'when the right to sue accrues', while Article 58 which is also residuary article with respect to suit for declaration covered by it period of limitation as prescribed it mentions start to run when the 'right to sue first arises'. The period is to start cases covered by Article 58 as mentioned in Article 58 - when right to sue first arises . This use of two different and distinct expressions in the above two articles clearly indicates that if the Legislature would have intended that three years limitation period should be counted from the date the right to sue first accrues it would have used expression 'First' before ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the plaintiff in accordance with law by producing any witness to prove its execution by the Bank Manager. The plaintiff should have examined the necessary witness to prove that document and to prove the rate of interest. It appears that plaintiff has only produced a letter purporting to be on the letter-pad of the State Bank of Mysore. Plaintiff has only appeared in the witness box and not produced any other witness to prove this document. The document by itself will not be proof by itself. Somebody else has to be produced as witness to prove it. Therefore, for the purpose of rate of interest at relevant period this cannot be taken into consideration as admissible evidence unless proved by production of the witness competent to prove the signatures of the person mentioned as Manager. Neither the Bank Manager has been produced nor any officer to prove the document, so the document cannot and could not be taken into consideration as admissible piece of evidence by the Trial Court, and as such finding recorded on the basis thereof by Trial Court as to the rate at which interest was held to be payable and as to quantum of amount of ₹ 1,10,000/- is no doubt erroneous and bad i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of remanding or dismissing the suit. It is, as such, hereby the Trial Court's decree is being modified and it is held that plaintiff is entitled to get decree for a sum of ₹ 33,475/- as amount due towards interest plus 250/- the charges of the notice. Thus, in total, the plaintiff is entitled for a decree of recovery of a sum of ₹ 33,725/- to interest on deposit of ₹ 1,03,000/- plus ₹ 250/- the charge of notice with pendente life future interest at the rate of 6% p.a. on the above amount till the date the above amount is paid to the plaintiff. Thus the plaintiffs appeal with regard to future interest is allowed awarding pendente lite future interest at the rate of 6% p.a. on the sum of ₹ 33,725/- and the defendants' Appeal No. 660 of 1997 is allowed modifying the Trial Court decree as under: That the plaintiffs suit is and shall be deemed to have been decreed for a sum of ₹ 33,725/- only with interest pendente lite and future from the date of suit till its payment at the rate of 6% p.a. plaintiff is further entitled to decree and is granted decree for sum of ₹ 250/- as charges for notice as well. Both the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
