Smt.Keshar Bai vs Vijay Kumar Agrawal (Died) ...
2022 Latest Caselaw 757 Chatt

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                                                                      AFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                             FA No. 93 of 2006

                       Reserved on : 29.11.2021

                       Delivered on : 14.02.2022

      Smt. Keshar Bai, Aged About 40 Years, Daughter of Deocharan
      Kalar, Wife of Shri Jeevan Lal Kalar, R/o Village- Sodhka, Tahsil
      Kharsia, District- Raigarh (C.G.)
                                                          ---- Appellant
                                Versus

1.    Vijay Kumar Agrawal (Since dead) through His Legal Heirs.
      (1.1) Smt. Tara Devi, Aged About 55 Years, Wd/o Late Vijay
      Kumar Agrawal.
      (1.2) Deepak Agrawal, Aged About 35 Years, S/o Late Vijay
      Kumar Agrawal.
      Respondents No. 1.1 & 1.2 are R/o Ganj Bazar, Kharsia, Tahsil-

Kharsia, District- Raigarh (C.G.)

2. State of Chhattisgarh, through District Collector, Raigarh (C.G.)

---- Respondents

For Appellant : Mr. A.N. Bhakta, Advocate.

For Respondent No. 1.1 & 1.2 : Mr. M.K. Sinha, Advocate. For State/Respondent No. 2 : Mr. Aditya Sharma, Panel Lawyer.

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT

1. The instant First Appeal has been filed by the appellant/defendant under Section 96 of the Code of Civil Procedure, 1908 challenging the order dated 31.03.2006 (Annexure A/1) passed by learned Fourth Additional District Judge (Fast Track Court) Raigarh (C.G.) in Civil Suit 10A/2004 (Vijay Kumar Agrawal Vs. Smt. Kesharbai Kalar & another) whereby decree was passed in favour of respondent No. 1 and the appellant was directed to pay Rs. 80,000/- along with interest @ 12% per annum from 20.09.2001 till actual payment is paid by the appellant.

2. The brief facts, as reflected from record, are that the respondent

No. 1/plaintiff has filed a Civil Suit No. 10A/2004 for specific performance of contract and for grant of permanent injunction contending that the plaintiff has executed an agreement with defendant No. 1 to purchase the suit land total 19 Nos. Khasra, area admeasuring 3.064 Hectare situated at Village- Sodka, Patwari Halka No. 17, Tahsil- Kharsiya, District- Raigarh for Rs. 80,000/- per acre vide agreement dated 20.09.2001. The details of the suit land are mentioned in Schedule-A of the plaint. On the date of agreement i.e. on 20.09.2001, plaintiff/ respondent No. 1 has given Rs. 80,000/- to the appellant and she has given assurance that she will execute the sale deed within one year. The respondent No. 1 has made attempt for many times for his part of specific performance of contract, but the appellant/defendant for the reason best known to her, has tried to avoid.

3. The plaintiff was ready and willing to perform his part of contract, but the appellant/ defendant neither performed her part of contract nor returned the amount of Rs. 80,000/-, which she has received towards advance, therefore, he has filed the civil suit for specific performance of the contract on 20.09.2001. The defendant has orally informed that her mother has not given any oral consent for sale of the property, as such, he has filed the civil suit for execution of ½ share of the appellant's land admeasuring 1.532 Hectare.

4. The appellant/defendant has filed written submission, in which, it has been contended that the defendant No. 1 & her mother- Jeera Bai are in possession of the land not the Jeera Bai alone is in possession of the land. She has not made any agreement with the plaintiff for sale of the land on 20.09.2001 @ Rs. 80,000/- per acre. Before execution of that agreement, no consent has been obtained by Jeera Bai. It has also been contended that the allegation made in the plaint is false and fabricated as there is no requirement of the defendant of her mother for any money and neither they have made any

agreement for sale of the land. In fact, the actual rate of the land is 1,50,000/- as such, the allegation made by the plaintiff is false and fabricated and would pray that the suit is not maintainable against the defendant. It has also been contended that no notice was issued to the plaintiff and the sale agreement is not binding upon defendant No. 1 for sale of land.

5. Learned Court below has framed six issues. The plaintiff/respondent No. 1 examined himself and defendant has not examined himself. Learned trial Court after appreciating the evidence, material on record has given finding that appellant/ defendant has executed agreement on 20.09.2001 and also received Rs. 80,000/-, since it is joint property, therefore, the agreement executed by one person is voidable agreement, therefore, no specific performance of the contract can be ordered.

6. It has also been recorded by the trial court that it is for the plaintiff to plead ready and willingness regarding performance of his part of contract, no documentary evidence has been adduced and it has also been recorded by the trial Court that the plaintiff has not proved any document that he was having Rs. 4 lac or in the account maintained by him for execution of sale- deed. Learned trial Court after appreciating the evidence, material on record has passed the judgment and decree has directed the defendant to pay Rs. 80,000/- @ 12% interest from 20.09.2001. Being aggrieved with the judgment and decree, the defendant has filed the present appeal whereas the plaintiff has not filed any appeal assailing the decree passed by the trial Court.

7. Learned counsel for the appellant would submit that the judgment and decree passed by learned trial Court is perverse and contrary to the evidence on record as defendant herself has denied the execution of sale-deed and signature in the agreement, therefore, the matter should have been examined by the hand writing expert. In absence of no opinion of hand writing

expert, judgment and decree should have not been passed against the appellant. As such, it suffers from perversity and the instant appeal deserves to be allowed by setting aside the judgment and decree passed by the trial court. He would further submit that the interest awarded by the trial Court is not permissible under the law, therefore, the judgment and decree passed by the trial Court so far as grant of interest is also liable to be quashed.

8. This Court while admitting the appeal has granted interim protection in favour of the appellant vide order dated 06.05.2006 subject to depositing 50% of the decreetal amount and furnishing security to the satisfaction of the trial Court for the remainder within two months. Learned counsel for respondent No. 1.1 & 1.2 on 21.10.2021 submits that the order passed by this Court has not been complied with. Though the execution proceeding is pending against the appellant,

9. I have heard learned counsel for the parties and perused the documents available on record with utmost satisfaction.

10. Learned counsel for the appellant would submit that as per Section 34 of the C.P.C., 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 can be granted. It has been further contended that 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, can be granted and for calculating the interest from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

11. He would further submit that there is a proviso clause in Section 34 of the C.P.C. which provides 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. 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). Where such a decree is silent with respect to the payment of further interest 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 therefore shall not lie, therefore, the grant of interest @ 12% for non- commercial transaction is on a higher side and against the provisions of the C.P.C.

12. In order to appreciate the aforesaid contention, this Court is required to consider the scope and ambit of Section 34 of the C.P.C. which gets attracted in the instant case.

13. As per Section 34 of the C.P.C., award of interest is a discretionary exercise stopped in equitable consideration. Pendent-lite Interest is payable for different purposes, such as compensatory etc. also. In the present case, since the plaintiff did not pay any interest before the trial Court nor the trial Court has framed any issue in this regard nor any argument has been recorded in this regard, this shows that such claim was not pressed by the plaintiff. Hence, it is clear that the plaintiff was not serious for this claim, as such, pendent-lite interest @ 12% is not justifiable looking to the facts and circumstances of the case. Accordingly, the plaintiff is entitled to get interest @ 6% per annum as per Section 34 of the C.P.P.C.

14. Hon'ble the Supreme Court in Mahesh Chandra Bansal Vs. Krishna Swaroop Singhal & others1, has held at paragraph 3 held as under:-

"3. The facts briefly stated are as follows: The appellant was a partner in a partnership firm.

He ceased to be a partner in the firm with effect

1 (1997) 10 SCC 681

from 12.5.1979. On his ceasing to be a partner a deed of dissolution was drawn on 12.5.1979 whereunder the share of the appellant in the assets and goodwill of the partnership was worked out at Rs. 90,000. The appellant was paid Rs. 45,000 at that time and the balance amount of Rs. 45,000 was to be paid after one year. The said amount, however, was not paid and, therefore, the appellant, on 11.5.1982, filed the suit which has given rise to this appeal for the recovery of the amount of Rs. 45,000 with interest @ 12% per annum. The said suit was decreed by the trial Court and interest was awarded @ 6% per annum throughout, from 25.5.1980 till realisation of money. On appeal the appellate Court modified the decree and awarded interest @ 12% per annum from 12.5.1980 to 11.5.1982, the date of the filing of the suit, and @ 19.5% per annum for the period subsequent to the date of filing of the suit till realisation of the amount. The High Court, in second appeal, has maintained the direction regarding payment of interest @ 12% per annum from 12.5.1980 till the date of the filing of the suit on the view that payment of interest for that period was governed by the Interest Act, 1978. As regards the interest pendente lite and future interest the High Court has held that it was governed by Section 34 of the Code of Civil Procedure (CPC) and the High Court has directed that the said interest shall be paid @ 6% per annum. Feeling aggrieved by the said direction given by the High Court the appellant filed this appeal."

15. Hon'ble the Supreme Court in C.K. Sasankan Vs. The Dhanalakshmi Bank Ltd.2 at paragraph 8 has held as under:-

"8. The quantum and rate of interest which the appellant in the present case is entitled to would be in accordance with the provisions of Section 34 of the Code. According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that although the amount of interest from the date of filing of the suit till the date of the decree and thereafter till realisation is in the discretion of the court as is confirmed by the use of the word 'may' but such discretion has to be exercised by the court properly, reasonably and on sound legal principles and not arbitrarily and while doing so the court is also to consider the parameter, scope and ambit of Section 34 of 2 (2009) 11 SCC 60

Code."

16. Since it is not commercial transaction and it is purely money transaction for specific performance of contract and looking to the fact that the plaintiff has not claimed for any interest as reflected from the plaint averments and in the prayer clause also. The plaintiff has only prayed for specific performance of contract only, therefore, grant of 12% is excessive and against the provisions of Section 34 of the C.P.C., as such, the plaintiff is entitled to get interest @ 6 % per annum from the date of judgment till it is actually paid.

17. In view of the above, it is clear that the interest cannot be granted more than 6% per annum whereas the trial Court has granted interest @ 12% per annum, therefore, the judgment and decree passed to the extent of 12% is against the law laid down by Hon'ble the Supreme Court and also against the provisions of Section 34 of the C.P.C., as such, the judgment and decree passed by the learned trial Court to the extent pendent-lite 12% is modified as well as subsequent to passing of the judgment and decree @ 12% is also modified and it is held that respondent No. 1.2 & 1.2 are entitled to get decreetal amount of Rs. 80,000/- along with 6% interest from the date of 20.09.2001 till the amount is actually paid.

18. Thus, the instant First Appeal is allowed in part by reducing the interest rate @ 6% per annum in place of 12% per annum. The remaining part of the judgment and decree passed by the trial Court shall remain intact.

19. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun