Sh. Saurabh A Prakash vs The Projects & Equipments ...
2014 Latest Caselaw 3670 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         EX.F.A.No.26/2013

%                                                       AUGUST 12, 2014

SH. SAURABH A PRAKASH                                               ......Appellant
                  Through:                Appellant in person.

                           VERSUS

THE PROJECTS & EQUIPMENTS CORPORATION OF INDIA LTD.
                                              ...... Respondent

Through: Mr.Sajneev Narula, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This execution first appeal impugns the order of the executing court

dated 23.7.2013 which has accepted the objections filed by the

respondent//judgment debtor and made certain observations as to how the

money decree in favour of the petitioner/decree holder will stand satisfied.

2. It is not an issue that the suit for possession and mesne profits filed by

the petitioner/plaintiff/decree holder against the

respondent/defendant/judgment debtor was decreed in terms of the judgment

dated 09.5.2005. So far as the money decree for mesne profits is concerned,

the operative portion is contained in para 16 of the judgment of the trial

court dated 09.5.2005 and which reads as under:-

" 16. In view of my findings on the aforesaid issues, suit of the plaintiff for mesne profits in respect of Flat No.9 H, Hansalaya Building, 15 Barakhamba Road, New Delhi is decreed with costs and interest to the following effect.

a) for the period 15.6.1989 till 14.11.1990, damages are awarded @ Rs.25/- per Sq. Ft. p.m;

b) from December 1990 till 30.09.1995, damages are awarded @ Rs.28.75 per Sq. Ft. p.m; and

c) from October 1995 till 30.09.1998 @ Rs.60/- per Sq. Ft. p.m.

Since for the period 01.10.1995 till vacation of the premises the plaintiff has already received damages @ Rs.60/- per Sq. Ft. and for the period prior thereto he has received amount @ Rs.11,829.40P as such after deducting the amount which the plaintiff has already received from the defendant, for the balance amount the plaintiff will be entitled for interest @ 9% p.a. till date of payment. Plaintiff is directed to make up the deficiency in the Court Fee within a period of 15 days. On making up deficiency in court fee thereafter decree sheet be prepared accordingly. File be consigned to record room."

3. The respondent/defendant had filed an appeal against this judgment in

which appeal during the course of hearing, an interim order was passed

staying the payment of the interest component, but admittedly that appeal

filed by the respondent/defendant being RFA No.563/2005 was ultimately

dismissed. At the time of dismissing of the appeal, the interim order of

staying payment of interest could not be and was not confirmed. Therefore,

on the dismissal of RFA No.563/2005, the judgment of the trial court dated

09.5.2005 stood restored and revived and there would be no operative order

staying payment of the interest component.

4. It is settled law on the principle of restitution including in terms of

Section 144 of Code of Civil Procedure, 1908 (CPC) which pertains to

restitution, that, any person who has secured an interim order in his favour

and who takes the benefit of that interim order, he must restitute the benefit

received when the interim order is vacated. Therefore, on the interim order

having been obtained by the respondent/defendant in RFA No.563/2005

being vacated on account of dismissal of the appeal, the petitioner/plaintiff

will be entitled to restitution on account of non-payment of the interest

component by the respondent/defendant pursuant to the judgment of the trial

court dated 09.5.2005.

5. It has been held by the Constitution Bench of the Supreme Court in

the case of Gurpreet Singh Vs. Union of India (UOI), (2006) 8 SCC 457

that when payment is made by a judgment debtor under a money decree, the

payment by the judgment debtor has first to be adjusted towards interest and

costs and only when the component of interest and costs would stand

paid/adjusted, then the further payment will be taken towards the whole or

part of the principal amount. In view of the Constitution Bench judgment in

the case of Gurpreet Singh (supra) merely because a judgment debtor writes

a letter pursuant to an interim order which did not achieve finality as the

RFA No.563/2005 was dismissed, cannot mean that the

respondent/defendant/judgment debtor is entitled to make adjustment first

towards the principal amount and not towards the interest and costs which is

required by law vide Gurpreet Singh's case (supra).

6. That being the limited issue before me, this appeal is allowed and the

impugned order of the executing court dated 23.7.2013 is set aside and it is

clarified that whatever payments would be made by the

respondent/defendant/judgment debtor pursuant to the judgment and the

decree of the trial court dated 09.5.2005 will be appropriated as per the ratio

in the case of Gurpreet Singh (supra) viz first towards the interest and costs

and only when the interest and costs component is paid/adjusted then

payment will be adjusted towards the principal amount.

7. The petition is allowed and disposed of in terms of the aforesaid

observations, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 12, 2014 KA