Dayaram Liladhar Joshi vs Bank Of Baroda
2023 Latest Caselaw 3037 Guj

Citation : 2023 Latest Caselaw 3037 Guj
Judgement Date : 19 April, 2023

Gujarat High Court

Dayaram Liladhar Joshi vs Bank Of Baroda on 19 April, 2023

Bench: Biren Vaishnav

      C/LPA/506/2016                            JUDGMENT DATED: 19/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 506 of 2016
                                    In
                R/SPECIAL CIVIL APPLICATION NO. 8656 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?


==========================================================
                         DAYARAM LILADHAR JOSHI
                                 Versus
                        BANK OF BARODA & 1 other(s)
==========================================================
Appearance:
MR. JAIMIN R DAVE(7022) for the Appellant(s) No. 1
PRIYANK S DAVE(9465) for the Appellant(s) No. 1
MR KM PARIKH(575) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV


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       C/LPA/506/2016                           JUDGMENT DATED: 19/04/2023




                           Date : 19/04/2023

                          ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

1. By way of present Appeal under Clause 15 of the Letters

Patent, the appellant - original petitioner, who has succeeded

before the learned Single Judge, has challenged the oral

judgment passed by learned Single Judge dated 20.04.2015, by

which the learned Single Judge has awarded interest only @ 6%

p.a. from 08.07.1981.

2. The Appeal came to be admitted by order dated

12.07.2019.

3. The short facts emerged from the records are as under :

3.1 The appellant and his brother deposited an amount of Rs.

87,856/- with the respondent - Bank in FDR on 08.06.1976 for a

period of 61 months bearing interest rate @ 10% p.a. The said

FDR was to mature on 08.07.1981. On the maturity date, the

appellant requested the respondent - Bank to repay the amount

C/LPA/506/2016 JUDGMENT DATED: 19/04/2023

which was invested for the period of 61 months along with

interest. The maturity amount at the end of 61 months became

Rs. 1,42,162/-. The appellant sent various reminders for

payment, however, the same was not replied to nor the amount

was paid. Ultimately the petitioner was compelled to file the

aforesaid writ petition.

3.2 By the impugned oral judgment, learned Single Judge has

accepted the petition and directed the Bank to pay the amount

with interest @ 6% from 08.07.1981 till the amount is realized.

The bank has not challenged the aforesaid judgment and

therefore the same has become final for the respondent - Bank.

However, the original petitioner - appellant herein has filed this

Appeal for additional amount of interest as per the interest

which was referred in FDR as @ 10%.

3.3 It is the case of the appellant that though several

reminders were made, amount was not paid to appellant and the

amount remained with the respondent - Bank itself.

4. Mr. Dave, learned advocate appearing for the appellant

C/LPA/506/2016 JUDGMENT DATED: 19/04/2023

would submit that it has been held by the learned Single Judge

that the amount was illegally retained by the respondent - Bank

and therefore, has directed to refund the amount with interest,

however, the learned Single Judge ought to have granted the

interest as per Section 3(1)(a) of the Interest Act, 1978. He

would submit that from 1981 to 2015 when the amount has

been deposited by the respondent - Bank, the average interest

rate is 11%. However, he would claim only 10% interest since

the FDR interest rate was 10%. He therefore, submits that

Appeal be accordingly allowed.

5. On the other hand, learned advocate Mr. K.M. Parikh

appearing for the respondent - Bank has opposed this Appeal.

He would submit that appellant would not be entitled for any

additional interest in view of the fact that he has already

received the amount way back on 11.08.2015. He would submit

that the bank has already paid the entire amount with interest

@ 6% and therefore, now the appellant cannot claim additional

interest. He would submit that granting of additional interest at

additional rate is beyond the scope of Appeal. He therefore

submits that Appeal be dismissed.

C/LPA/506/2016 JUDGMENT DATED: 19/04/2023

6. We have heard learned advocate Mr. Jaimin R. Dave

appearing for the appellant and Mr. K.M. Parikh, learned

advocate appearing for the respondent - Bank.

7. It is an undisputed fact when the respondent - Bank did

not pay the matured amount, the petitioner filed the petition

and prayed for appropriate Writ, order or direction, directing

the Bank to repay the amount with interest @ 10% p.a. from

1976 to 08.07.1981 and has claimed 15% interest p.a. from

08.07.1981 till realization. It is an undisputed fact that when

the amount was invested by the present appellant with the

respondent - Bank, the rate of interest in the Fixed Deposit was

10% p.a. The scheme is of with simple interest @ 10%. It is

true that the Bank has deposited certain amount only in the year

2015, however, in our opinion, the appellant would be entitled

for additional interest rate as provided under section 3(1) of the

Interest Act, 1978 reads as under : -

"3. Power of court to allow interest. - (1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case

C/LPA/506/2016 JUDGMENT DATED: 19/04/2023

may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say,--

(a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;

(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings:

Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment.