Gauhati High Court
M/S Jatinga Tea Ltd vs Panna Lal Roy on 16 October, 2023
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GAHC010170542021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2446/2023
M/S JATINGA TEA LTD.
HAVING ITS REGISTERED OFFICE AT 17 R.N. MUKHERJEE ROAD
KISHORE BHAVAN
KOLKATA. OWNER OF LARSHINGA TEA ESTATE
P.O. UDHARBOND
CACHAR
ASSAM AND JATINGA VALLEY TEA ESTATE
P.O. DAMCHERRA (N.F. RAILWAY)
CACHAR
ASSAM REP. BY ITS ATTORNEY AND MANAGER LARSHINGA ESTATE
P.O. UDHARBOND
CACHAR
ASSAM
VERSUS
PANNA LAL ROY
S/O- LATE PARESH CHANDRA ROY
R/O- UDHARBOND BAZAR
P.O. AND P.S. UDHARBOND
CACHAR
ASSAM
------------
Advocate for : MR G N SAHEWALLA
Advocate for : MR. S D PURKAYASTHA appearing for PANNA LAL ROY
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
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ORDER
Date : 16.10.2023
Heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Ms. S. Todi,
learned counsel for the applicant and Mr. S.D. Purkayastha, learned counsel for
the opposite party.
2. The applicant is the plaintiff in MS 23/2011, which was decreed for a sum
of Rs.21,78,711.25 with interest @9% per annum from the date of institution of
suit till realization.
3. The opposite party is the defendant in the said suit, who upon being
aggrieved by the decree has preferred the connected appeal.
4. The appeal was admitted for hearing and this Court by order dated
14.12.2022 passed in I.A.(C) 1714/2022, stayed the execution by imposing a
condition that the "Stay order shall be subject to deposit of 50% of the decretal
amount with the Registry of this Court. The opposite party/appellant/ defendant
shall provide solvent security for 50% of the balance amount. The amount shall
be deposited within 6(six) weeks from the date of this order".
5. Accordingly, the opposite party has deposited a sum of Rs.11.00 lakh
before the Registry of this Court and has also submitted a registered security
bond against solvent security as required by the aforesaid order of this Court for
a sum of Rs.5,44,677.82 being the 50% of the principal decretal sum.
6. By this application, which is filed under Section 151 CPC, the plaintiff, who
is the respondent in the connected appeal has prayed for permitting the
applicant to withdraw the amount of Rs.11.00 lakh lying deposited with the
Registry of this Court, which was deposited on 20.06.2023.
7. The learned counsel for the opposite party has referred to the objection
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filed in connection with I.A.(C) 1714/2022 and it is submitted that the deposit
which has been made by the opposite party is only as a security and not as a
part of decretal amount. Accordingly, he has objection to permit the applicant to
withdraw the said deposited amount. It is submitted that if the appeal is
allowed, then it may not be possible for the opposite party to recover the
amount from the applicant. It is further submitted that even if the Court is
inclined to allow the applicant to withdraw the amount, the same may be
considered as withdrawal adjustable against principal.
8. The said contention is opposed by the learned senior counsel for the
applicant.
9. The first point which is required to be determined by this Court is whether
the amount which is lying before this Court can be permitted to be withdrawn
by the applicant. In the said connection, the Court finds that under the
provisions of Order XLI Rule 1(3) CPC, it is provided that where the appeal is
against the decree for recovery of money, the appellant shall, within such time,
as the appellate court may allow, deposit the amount disputed in the appeal or
furnish such security in respect thereof as the Court may deem fit. Having
regard to the said provision, this Court has already issued a direction to the
opposite party to deposit 50% of the decretal amount and to furnish 50%
security in respect of the balance 50%.
10. On a query of this Court, the learned senior counsel for the applicant has
submitted that if interest is computed on the decretal amount from the date of
institution of the suit, on a rough estimate the interest alone would be more
than Rs.20.00 lakh. Considering the quantum of the decree and the interest
which might have accumulated thereon, the Court is of the considered opinion
that subject to furnishing of bond, that may be acceptable by the Registry, by
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the applicant to refund the sum of Rs.11.00 lakh to the Registry, in the event
the appeal is decided against them, the applicant be permitted to withdraw the
sum of Rs.11.00 lakh lying deposited before the Registry of this Court since
20.06.2023.
11. The second question that has come up for determination by the Court is
as to whether the applicant-plaintiff/ decree holder can be permitted to
appropriate the amount against the principal alone. In this regard, it would be
appropriate to quote the provision of Section 60 of the Contract Act, 1872,
which is as follows:
"60. Application of payment where debt to be discharged is not indicated-
Where the debtor has omitted to intimate and there are no other circumstances
indicating to which debt the payment is to be applied, the creditor may apply it at
his discretion to any lawful debt actually due and payable to him from the debtor,
whether its recovery is or is not barred by the law in force for the time being as to
the limitation of suits."
12. It may also be referred to the decision of the Constitution Bench of the
Supreme Court of India in the case of Gurpreet Singh Vs. Union of India, (2006)
8 SCC 45 where it has been held that the payment made by the judgment
debtor to decree holder has to be appropriate first towards interest and cost and
then towards a principal amount. The said principle has been reiterated by the
Supreme Court of India in the case of Bharat Heavy Electrical Ltd. Vs. R.S.
Avatar Singh, (2013) 1 SCC 243. Therefore, in the considered opinion of this
Court, as the manner of appropriation is not contained in the decree nor
documented in transactions between the parties, it would be open to the
applicant (i.e. the decree holder) to appropriate the payment first towards the
interest and cost and then towards principal amount or in any other manner it is
deemed fit.
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13. At this stage, the learned senior counsel for the applicant has submitted
that whether the appropriation can be made first towards interest be kept open.
Accordingly, the said issue is kept open for a decision of this Court. Nonetheless,
it would be permissible for the applicant to appropriate the withdrawal against
interest, which would be subject to further order of this Court.
14. As both the questions for determination has been answered, this
application stands allowed by permitting the applicant to withdraw the sum of
Rs.11.00 lakh lying deposited with the Registry of this Court since 20.06.2023
which was being deposited by the opposite party pursuant to order dated
14.12.2022 passed in I.A.(C) 1714/2022, subject to submission of bond and its
acceptance by the Registry.
15. Accordingly, this interlocutory application stands disposed of.
JUDGE
Comparing Assistant
