Full Judgment
(Prayer: This Application praying that this Hon'ble Court be pleased to order for amendment of the decree dt. 22.12.1995 in C.S.No.852/1387 as Suit decreed for Rs.59,09,000/- and there after interest at 6% p.a. on Rs.38,00,000/- (Rupees Thirty Eight Lakhs only) from the date of decree till the date of realization instead of decreeing the suit with further interest @ 18% per annum on the sum of Rs.59,09,000/- (Rupees Fifty Nine Lakshs and Nine thousand only) from this date till the date of realization.)
The applicants are the defendants 1 to 3 and judgment debtors 5, 6, 8 and 10 and they case forward to file this application under Section 152 of the Code of Civil Procedure, praying for amendment of the decree dated 22.12.1995 in C.S.No.852 of 1987.
2. The affidavit filed in support of this application has been sworn to by the 6th applicant/8th respondent in E.P.No.59 of 2000 in C.S.No.852 of 1987. It is averred among other things in the said petition that C.S.No.852 of 1987 was filed by Thiru N. Borolingaiah and eight others against M/s. Essor Hotels Pvt. Ltd., represented by its Managing Director Mr. P.V.R.Kutty Menon, Mr. P.V.T. Kutty Menon and Indian Bank, First Line Beach, Madras-1 represented by its Manager, praying for recovery of a sum of Rs.59,09,000/- together with interest @ 18% per annum from the date of plaint till the date of realization and for rendition of accounts by the defendants 1 and 2 for payment of sundry creditors and for a decree for the balance amount together with interest @ 18% per annum from 30.6.1984 till the date of realization and also for a first charge over the assets of the first defendant's property towards the amount due to the plaintiffs as mentioned in the plaint schedule. The Suit after contest was decreed on 22.12.1995 for a sum of Rs.1,49,25,243.60 and the defendants 1 and 2 are directed to pay the said amount with further interest @ 18% per annum on the sum of Rs.59,09,000/- from the date of the decree till the date of realization and the defendants 1 and 2 are directed to render accounts for the payment of sundry creditors and also costs.
3. It is the case of the applicants that the principal sum adjudged was Rs.38,00,000/- and interest component was Rs.21,09,000/-, aggregating to a sum of Rs.59,09,000/- and while drafting the decree, further interest has been calculated on the sum of Rs.59,09,000/- an against the principal sum of Rs.38,00,000/- and further interest should have been fixed only at 6% p.a. and not 18% p.a. The applicants would further aver that the said mistake has been committed by the First Assistant Registrar of this Court while drafting the decree. It is also averred among other things about the plea of discharge and acceptance of the same by the fourth decree holder, namely Mr. R. Prabhu and ninth decree holder, namely Mr. S.N. Nayak agreeing to accept the sum of Rs. 8,33,333.33 respectively as full satisfaction of the claim and as such, it is not open to other decree holders to lay execution of such decree as a joint and several one. It is also averred by the applicants that C.S.No.739 of 2004 has been filed to declare the agreement between the first plaintiff and the first defendant as envisaged in the letter dated 10.12.2003 i.e. valid and binding and for a permanent injunction restraining the defendants 1 to 18 herein from enforcing their claim under the decree dated 02.12.1995 in C.S.No.852 of 1987 and for other consequential benefits and during the pendency of the said Suit, E.P.No.59 of 2000 filed in C.S.No.852 of 1987 cannot be proceeded with and hence, prays for allowing this application.
4. Mr.K.Mani, learned counsel appearing for the applicants has drawn the attention of this Court to the judgment dated 22.12.1995 made in C.S.No.852 of 1987 as well as the decree and would submit that at the time of filing the Suit, the principal sum was Rs. 38,00,000/- and interest was calculated on the said amount and the Suit was filed for recovery of a sum of Rs. 59,09,000/- with interest @ 18% p.a. and though the said Suit has been decreed, the judgment debtors are entitled to interest @ 6% p.a. on the principal sum of Rs.59,09,000/- and since it is a mistake falls within the ambit of Section 152 of the Civil procedure Code, the judgment and decree is to be rectified. It is the further submission of the learned counsel appearing for the applicants that pendency of C.S.No. 739 of 2004, E.P.No. 59 of 2000 in C.S.NO. 852 of 1987 cannot be proceeded with and further contended that since the judgment debtors 4 and 8 have been discharged and also acknowledged the receipt of their 1/9th share, Execution Petition is liable to be dismissed and prays for allowing of their application. 5. Per contra, Dr. C. Ravichandran, learned counsel appearing for the respondents/decree holders would contend that admittedly the Suit was laid for recovery of a sum of Rs.59,09,000/- together with interest @ 18% p.a. from the date of the plaint till the date of realization and also for other consequential reliefs and the said Suit has been decreed as prayed for and the decree drafted is also in consonance with the decree passed by this Court and hence, it cannot be termed an mistake or inadvertent error which warrants interference under Section 152 of the Civil procedure Code. It is the further submission of the learned counsel appearing for the respondents that the points urged by the learned counsel appearing for the applicants with regard to pendency of C.S.No.739 of 2004 and discharge of decreetal amount in favour of defendants 4 and 9/decree holders cannot be adjudicated in this application for the reason that admittedly, E.P.No.59 of 2000 in C.S.No. 852 of 1987 is pending adjudication and the sole intention of the applicants/judgment debtors is to drag on the proceedings in order to restrain the decree holders from realizing the fruits of the decree and prays for dismissal of this application with exemplary costs. 6. In response to the said submission, the learned counsel appearing for the applicants had drawn the attention of this Court to the decisions in B. Shivananda v. Andhra Bank Ltd., and Another [(1994) 4 SCC 368], Dwarka Das v. State of M.P. and another [AIR 1999 SC 1031] and Lakshmi Ram Bhuyan v. Kari Prasad Bhuyan and Ors. [AIR 2003 SC 351] and would submit that in similar facts and circumstances, the Hon'ble Supreme Court of India has ordered rectification of mistakes occurred in the decree and hence, prays for allowing of the application.
7. This Court has paid its best attention to the rival submissions and also perused the materials placed before it.
8. The Suit is for recovery of a sum of Rs.59,09,000/- with interest @ 18% from the date of the plaint till the date of realization and other consequential reliefs and it is decreed as prayed for, vide judgment and decree dated 22.12.1995. It is relevant to extract the decree passed in C.S.No.852 of 1987 as under:
1. That the Defendants 1 and 2 herein, do pay to the plaintiffs herein, a sum of Rs.1,49,25,243-60 (Rupees One Crore, forty nine lakhs, twenty five thousand two hundred and forty three and paise Sixty only) with further interest at the rate of 18% per annum on the sum of Rs.59,09,000/- (Rupees Fifty nine lakhs and nine thousand only) from this date till the date of realization;
2. That the first and Second Defendants herein, shall render accounts for payment of sundry creditors;
3. That the Defendants 1 and 2 herein, do pay to the plaintiffs herein, the full costs of this suit as and when by the taxing officer of this Court and noted in the margin hereof; That there be no costs against the 3rd Defendant herein. ?
In Para 50 of the judgment at inner Page No.101, findings have been recorded to the effect that a total sum of Rs.58.09 Lakhs was agreed to be paid by the defendants 1 and 2 to the plaintiffs and it is the undisputed and established fact that the said amount has not been paid either on or before 30.6.1984 or 31.5.1985 and therefore, as per the agreed terms, the defendants 1 and 2 are liable to pay the said total amount of Rs.58.09 lakhs from 01.06.1984 onwards with interest as agreed @ 18% and that is what exactly is the claim made in the plaint. This Court, based on the findings, decreed the Suit as prayed for and in the considered opinion of the Court, the decree has been drawn in accordance with the judgment.
9. In B. Shivananda v. Andhra Bank Ltd. And another [(1994) 4 SCC 368], it has been held that Section 152 of the Civil Procedure Code clearly gives power to the Court to amend clerical or arithmetical mistakes in the judgment and decree or order or any errors arising therein from any accidental slip or omission and the same may, at any time, be corrected by the Court either of its own motion or on the application of any of the parties to the suit. The Hon'ble Supreme Court of India, in the above cited decision, has thought it to fit to direct the judgment debtor to pay 16% on the principal amount claimed in the Suit from the date of the decree till the date of realization and further indicated that it should be confined to this case only, on the peculiar facts of this case.
10. In Jaipur Development Authority v. Badhey Shyam and Others [(1994) 4 SCC 370] it has been held that decree incorporating direction in the award for allotment of such land would be a nullity and in exercise of powers under Section 47 of C.P.C., decree which is a nullity can be challenged even at the execution stage. It is relevant to extract para 6 of the said judgment:
6. After making the award under Section 11 the Collector [sic under sub-section (1) of Section 31] shall tender payment of the compensation awarded by him to the persons interested and entitled thereto according to the award and shall pay it to them unless prevented by someone or more of the contingencies mentioned in Sub-Section (2) and the proviso with which we are not concerned. Sub-Section (3) gives an indication of the powers of the Collector in awarding any other land in exchange and in lieu of the payment of compensation, namely, notwithstanding anything in Section 31 the Collector may, with the sanction of the appropriate Government, instead of awarding a money compensation in respect of any land, he may make any arrangement with any person having a limited interest in such land ?, either by grant of other land in exchange, the remission of the land revenue, or other such lands held under the same title, or in such other way having regard to the interest of the parties concerned. Sub-section (3) lifts the rigour of payment under sub-sections (1) and (2) of Section 31 and gives power to the Collector, that too, with the prior sanction of the appropriate Government, that instead of awarding money compensation in respect of the acquired land, he could make any arrangement with the person who is having only a limited interest in the land under acquisition and grant him either any other land in exchange to the land acquired or remittance of the land revenue on other lands held by the landowner or in some other way as may be equitable, having regard to the interest held by the limited owner. Sub-Section (4) provides that nothing in this last Sub-Section i.e., sub-section (3) shall be construed as interfering with or limiting the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. ?
11. In Lakshmi Ram Bhuyan v. Kari Prasad Bhuyan and Ors. [AIR 2003 SC 351] it has been held in para 10 that very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. It is also relevant to extract para 14 of the said judgment;
14. How to solve this riddle? In our opinion, the successful party has no other option but to have recourse to Section 152 CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission, being corrected at any time by the court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the court to vary its judgment so as to give effect to its meaning and intention. Power of the court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when he order was made was upheld by Bowen, L.J. in Swire, Re, Mellor v. Swire-[(1885) 30 Ch D 239] subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, L.J. observed that if the order of the court, though drawn up, did not express the order as intended to be made then there is no such magic in passing and entering an order as to deprive the court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal ?.
12. In Dwaraka Das v. State of M.P. and Another [(1999) 3 SCC 500], the scope of Section 152 of the Civil Procedure Code has been considered and it is relevant to extract para 6 of the said judgment:
6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correction only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgments, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective orders in the is pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State. ?13. It is also relevant to quota and extract the Constitution Bench judgment of the Hon'ble Supreme Court of India in Central Bank of India v. Ravindra and Others [AIR 2001 SC 3095], wherein a reference was made by the Division Bench of the Hon'ble Supreme Court of India to the Constitution Bench as to the meaning to be assigned to phrase the principal sum adjudged and the term principal sum occur in Section 34 of C.P.C. and it is relevant to extract the following paras of the said judgment:
41. A few points are clear from a bare reading of the provision. While decreeing a suit if the decree be for payment of money, the court would adjudge the principal sum on the date of the suit. The court may also be called upon to adjudge interest due and payable by the defendant to the plaintiff for the pre-sit, period which interest would, on the findings arrived at and noted by us hereinabove, obviously be other than such interest as has already stood capitalized and having shed its character as interest, has acquired the colour of the principal and having stood amalgamated in the principal sum would be adjudged so. The principal sum adjudged would be the sum actually loaned plan the amount of interest on periodical rests which according to the contract between the parties or the established banking practice has stood capitalized. Interest pendente lite and future interest (i.e. interest post-decree not exceeding 6 per cent per annum) shall be awarded on such principal sum i.e. the principal sum adjudged on the date of the suit. It is well settled that the use of the word may in Section 34 confers a discretion on the court to award or not to award interest or to award interest at such rate as it deems fit. Such interest, so far as future interest is concerned may commence from the date of the decree and may be made to stop running either with payment or with such earlier date as the court thinks fit. Shortly hereinafter we propose to give an indication of the circumstances in which the court may decline award of interest or may award interest at a rate lesser than the permissible rate.
42. It was submitted by the learned amicus and other counsel for the borrowers, that the expression on such principal sum as occurring twice in the latter part of Section 34(1), which refers to interest pendente lite and post-decree, should be interpreted to mean principal sum arrived at by excluding the interest even if it has stood capitalized. This would be consistent with the legislative intent as reflected in the report of the Joint Committee and sought to be fulfilled by the 1956 amendment. For two reasons this contention has to be rejected. Firstly, entertaining such a plea amounts to begging the question. As we have already held that the interest once capitalized ceases to be interest and becomes a part of principal sum or capital. That being as the interest forcing amalgam with the principal, in view of having been capitalized, is the principal sum and therefore the question of awarding interest an interest does not arise at all. Secondly, well-settled principles of interpretation of statutes would frown upon such a plea being entertained. A construction which leads to repugnancy or inconsistency has to be avoided. Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid a head-on clash between two meanings assigned to the same word or expression occurring at two places in the same enactment. It should not be lightly assumed that Parliament had given with one hand what it took away with the other (see Principles of Statutory Interpretation, Justice G.P. Singh, 7th Edn. 1999, p. 113). That construction is to be rejected which will introduce uncertainty, friction or confusion into the working of the system (ibid, p. 119). While embarking upon interpretation of words and expressions used in a statute it is possible to find a situation when the same word or expression may have somewhat different meaning at different places depending on the subject or context. This is however an exception which can be resorted to only in the event of repugnancy in the subject or context being spelled out. It has been the consistent view of the Supreme Court that when the legislature used same word or expression in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout (ibid, p. 263). More correct statement of the rule is, as held by the House of Lords in Farrell v. Alexander 50 All ER at p. 736b, where the draftsmen uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning ?. The court having accepted invitation to embark upon interpretative expedition shall identify on its radar the contextual use of the word or expression and then determine its direction avoiding collision with icebergs of inconsistency and repugnancy.
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44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other places in Section 34(1) where the expression has been used qualified by the adjective such ?, that is to say, as such principal sum ?. Recognition of the method of capitalization of interest so as to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long-established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalizing the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of such use of the money which it would have made if the debtor had paid the amount of interest on the date due. The creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar v. Narayana Ayyar [AIR 1943 MAD 157] the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalized with the principal sum actually advanced, so as to became an amalgam of principal in such cases where it is permissible or obligatory for the court to hold so. Where the principal sum (an the date of suit) has been so adjudged, the same shall be treated an principal sum for the purpose of such principal sum “ the expression employed later in Section 34 CPC. The expression principal sum a cannot be given different meanings at different placed in the language of same section i.e. Section 34 CPC.
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49. We are, therefore, of the opinion that the two-Judge Bench decision of this Court in Corpn. Bank v. D.S. Gowda [1994 AIR SCW 2721] and the three-Judge Bench decision in Bank of Baroda v. Jagannath Pigment and Chemicals [1996 (5) SCC 280] are correctly decided and are, therefore, affirmed. A creditor can charge interest from his debtor on periodical rests and also capitalize the same so as to make it a part of the principal. Such a course can be justified by stipulation in a contract voluntarily entered into between the parties or by a practice or usage wall established in the world to which the parties belong. Such practice is to be found already in vogue in the field of banking business. Such contract or usage or practice can stand abrogated by legislation such as usury laws or debt relief laws and so on. ?
(emphasis supplied)
In para 58 of the said judgment, the reference was answered in the following terms:
58. Subject to the above we answer the reference in the following terms:
(1) Subject to a binding stipulation contained in a voluntary contract between the parties and/or an established practice or usage interest on loans and advances may be charged on periodical rests and also capitalized on remaining unpaid. The principal sum actually advanced coupled with the interest on periodical rests so capitalized is capable of being adjudged as principal sum on the date of the suit.
(2) The principal sum so adjudged is such principal sum within the meaning of Section 34 of the Code of Civil Procedure, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the court may deem fit, may be awarded by the court.
(3) Corpn. Bank v. D.S. Gowda [1994 AIR SCW 2721] and Bank of Baroda v. Jagannath Pigment and Chem. [1995 (5) SCC 280] have been correctly decided. ?
As per the ratio laid down in the above cited decision, recognition of the method if capitalization of interest so as to make it a part of the principal is consistent with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity.
14. In the case on hand, the plaintiffs had adopted the said practice and filed C.S.No.852 of 1987 for recovery of a sum of Rs.59,09,000/- with interest @18% p.a. from the date of the plaint till the date of realization with other consequential reliefs. The Suit was decreed on 22.12.1995 directing the defendants to pay a sum of Rs.1,49,25,243.60 with further interest @ 18% p.a. on the sum of Rs. 59,09,000/- from the date of the decree till the date of realization and other reliefs. It is an admitted fact that E.P.No.59 of 2000 was filed in C.S.No,852 of 1987 and it is hotly contested. In the considered opinion of the Court, there is no error or inadvertent mistake while drafting the decree for the reason that the decree has been drafted in consonance with the judgment passed in C.S.No.852 of 1987 and Clause 1 of the decree also makes it clear as to the entitlement of the judgment debtors to recover the sums due and payable with interest from the defendants 1 and 2 and there is no ambiguity in the clause/terms of the decree. The Constitution Bench judgment of the Hon'ble Supreme Court in India in Central Bank of India v. Ravindra and Others [AIR 2001 SC 3095] also supports the stand of the decree holders.
15. Insofar as the other submission made by the learned counsel appearing for the applicants with regard to discharge of decreetal amount in favour of the decree holders 4 and 9 and filing of C.S.No.739 of 2004, this Court is of the view that the said points urged are beyond the scope of this application, as the points urged by the learned counsel appearing for the applicants mainly revolve around Section 152 of the Code of Civil Procedure. Therefore, the said grounds are liable to be rejected. 16. In the light of the reasons assigned above, this application is dismissed. Since the execution petition is of the year 2000, the learned Master is directed to accord priority for it's early disposal and both the parties shall extend their maximum cooperation for the early disposal of the execution petition.