FIRST APPEAL 03/03 on 30 June 1992

1. The State Of Bihar through the Collector, Katihar.

2. Engineer-In-Chief, Irrigation (Flood Control Cell), 3[rd] Secretariat, Patna.

3. The Chief Engineer, Irrigation, Purnea.

4. The Superintending Engineer, Mahanand Flood Control Circle, Katihar.

5. Executive Engineer, Flood Control Division, Kaohagalu, P.O. Guru Bazar, P.S. Barari, District-Katihar.

.... .... Appellant/s Versus

M/S B.N.Kedia & Company, a firm registered under the Indian Partnership Act having its office at N.H, 31, Jail Chowk, Purnea through its Partner Sri Bishwanath Kedia son of late Brij Mohan Media, resident at N.H. 31 Jail Chowk, P.S. K.Hat, District-Purnea.

.... .... Respondent/s

=========================================================== Appearance :For the Appellant/s : Mr. S.KR.BIJPURIA (JC TO GP1) For the Respondent/s : Mr. RAMA NAND PODDAR

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

CORAM: HONOURABLE MR. JUSTICE V. NATHORAL JUDGMENT Date: 05-09-2012

Heard the learned counsel appearing on behalf of the appellants as well as the learned counsel appearing on behalf of thesole respondent.

2. This appeal has been filed against the judgment and decree dated 16[th] May 1995 passed by the Sub-Judge-III, Katihar in MoneySuit No. 16/92/77/94 by which the learned court has decreed the suit and allowed the claim of the plaintiff for the amount of Rs. 9,04,028.75 paise alongwith the interest @ 6% per annum from22.07.1986 till realization.

3. It appears that during the pendency of this appeal an execution case was filed by the sole respondent for realization of the decretal amount and the executing court below in the said execution proceeding passed the order for attachment of the properties of the appellants. Thereupon, the appellants filed I.A. No. 3388 of 2012 praying for stay of further proceeding of Money Execution Case no. 03/03/04/04. The further proceeding of the execution case was stayed by this Court initially and thereafter upon filing of the counter affidavit by the respondent the interlocutory application for stay was heard.

4. It transpired during the hearing of the interlocutory application that the dispute between the parties lay within a narrowcompass and could be disposed of without going in detail, in view ofthe admitted facts. The learned counsel for the parties have also agreed that in view of the dispute between the parties having been narrowed down after the deposit of the decretal amount of Rs. 9,04,028.75 paise by the appellants in the executing court below, thedispute now is only with regard to the period from which the interest is to be paid. In view of the aforesaid facts and considering the submissions of the parties, this appeal was ordered to be placed forhearing.Accordingly, the appeal has been heard finally.

5. The sole respondent-plaintiff is a firm and engaged in carrying out the construction work. It is case of the respondent-plaintiff that the appellants-defendants entered into contract with therespondent-plaintiff for supply of boulders for anti erosion purposes in the eventuality of flood, and the assigned work was carried out bythe respondent according to the contract and thereafter it becameentitled to the amount as mentioned in the plaint in accordance with the agreement. It is the case of the respondent-plaintiff that a totalamount of Rs. 9,04,028.75 paise has remained unpaid and it has also been stated that the said amount includes the interest from22.07.1986 to 30.06.1992 @ 6% per annum.

6. The defendant-appellants appeared and filed their contesting written statement denying the claim as made by the plaintiff.

7. After considering the submissions and scrutinizing the evidence, the learned court blow has framed altogether seven issues out of which the issue nos. 5 and 6 were the material issues which areas follows:-

Issue no. 5- Whether the plaintiff was directed by the respondent no. 5 for shifting of the boulders from the anti erosion siteto different places at Karhagola between 0 to 10 chanage?

Issue no. 6- Is the plaintiff entitled to release of theamount claimed with interest from the defendant?

8. The learned court below has decided the aforesaid twoissues in favour of the plaintiff and has held that the plaintiff is entitled to the amount claimed alongwith the interest @ 6% perannum from 22.07.1986 till the realization.

9. The learned counsel appearing for the defendant-appellants has submitted that the total amount claimed by the plaintiff as principal sum was Rs. 9,04,028.75 paise and the same hasbeen deposited by the appellants in the execution case by a bank draft dated 28.03.2005 and challan no. 05 dated 06.04.2005.However, it has been urged that the learned court below has erroneously allowed the interest @ 6% per annum from 22.07.1986till realization. It has been contended by the learned counsel that from the pleading of the plaintiff as well as from paragraph-4 of theimpugned judgment itself, it is manifest that the amount of the principal sum of Rs. 9,04,028.85 paise is inclusive of the amount ofinterest from 22.07.1986 up to 30.06.1992 @ 6% per annum and assuch, the decree awarding interest again from 22.07.1986 cannot besustained. It has further been canvassed that the plaintiff can beentitled to claim interest from the date of the filing of the suit i.e 30.06.1992 up to the realization and as such the decree to that extent cannot be sustained. It has further been submitted that the appellants are entitled only for payment of interest from 30.06.1992 up to 06.04.2005

when the principal sum was deposited and has also been received bythe respondent thereafter.

10. In reply, the learned counsel for the respondent has not disputed the position that the learned court below has committed error in granting the decree for interest from 22.07.1986 till realization. The learned counsel has fairly submitted that in the factsof the case the plaintiff could have been entitled to claim interest from the date of filing of the suit which is 30.06.1992 till realization.

11. In view of the submissions on behalf of the parties, it is clear that the learned court below has committed error in grantingthe decree for interest from 22.07.1986 till realization. From the pleadings of the parties as well as from the perusal of the impugnedjudgment also it is apparent that the principal amount of Rs. 9,04,028.85 paise claimed by the plaintiff included the amount ofinterest @ 6% per annum from 22.07.1986 up to 30.06.1992. Assuch, the plaintiff can be entitled to claim interest from 30.06.1992i.e. the date of the filing of the suit uptil its realization i.e. on 06.04.2005 when the principal amount has been deposited by the plaintiff-appellants in the execution case. The learnedcounsel forboth theparties have agreed to this position and as such the impugnedjudgment and decree is fit to be modified to the aforesaid extent. Noother submissionhas been made by the leanedcounsel for the Devendra/- parties.

12. In the result, this appeal is allowed in part and the impugned judgment and decree is set aside to the extent that the plaintiff is held to be entitled to the interest @ 6% per annum from30.06.1992 up to 06.04.2005. In the facts and circumstances, there shall be no order as to costs.

(V. Nath, J)