1. This appeal has been preferred against the judgment/order dated 17th July, 2002 passed by the D.R.T., Jabalpur in Original Application No.6/98, whereby satisfaction of the claims of the Bank have been recorded on the basis of earlier compromise being arrived at between the appellant Bank and the respondent. Before entering into merit of the appeal, there is a preliminary objection regarding limitation of the appeal. The appeal was filed in the year 2002 and notices were issued to the respondents and they also put in appearance but then amendment petition was filed by the appellant to the effect that in the memo of appeal relief portion had not been inserted inadvertently. That amendment petition came up for hearing and amendment was allowed by order dated 15th July, 2004 but then objection was raised from the side of the respondents that as the amendment was made belatedly in the year 2004, such amendment cannot be construed to be inserted in the memo of appeal which was filed in the year 2002, rather on the relief being claimed by allowance of amendment, the appeal became time-barred.
Learned Counsel for the appellant said that the amendment as allowed was nothing but formal in nature as due to inadvertence the relief portion was not inserted although from the grounds of the appeal, as per the memo of appeal, the relief claimed may be well understood and as such formality of insertion or relief in the memo of appeal relates back to the date of filing of the appeal and as such no amendment comes in. However, a petition had been filed under Section 5 of the Limitation Act, wherein it was stated that although the amendment petition was filed long back, but the same was taken up for hearing on 15th July, 2004 and as such delay cannot be construed on the fault of the appellant. I have considered the contentions of both the parties and find that the insertion of the relief portion in the memo of appeal is only a formality and it does not make the memo of appeal to be construed as filed in the month of July, 2004, rather the grounds of appeal reveal the grievances and redressal sought in the appeal and as such in my considered view by insertion of relief portion in the memo of appeal does not suffer from principle of limitation in the present circumstances of the case.
2. Now coming to the merit of the appeal, the grievance of the appellant is that although the compromise was approved by the Bank long back in the month of May, 2001 specifically stated on 27th April, 2001 and 18th May, 2001 respectively and there was clause of compromise to make payment of the amount of settlement, but no such payment was made immediately rather the payment was finalized on the date of the impugned order i.e, 17th July, 2002 and hence the respondents cannot get the fruit of the compromise, rather as per defaulting clause of the compromise, the appellant Bank is entitled to get recovery of the whole of their claim to the tune of Rs. 20, 00 lacs and odd. Practically compromise was taken into consideration by the Tribunal on 17th January, 2002 itself, but then because of some formalities to be done, subsequent order was passed and satisfaction order was recorded on 17th July, 2002.
3. Lastly it was the submission of the appellant Bank that even if the amount of compromise has been said to be legally accepted by the Tribunal, then also the appellant is entitled to get interest @ 12.5% per annum from 18th May, 2001 till 17th July, 2002, which comes to Rs. 1, 45, 000/- and odd. It is also the contention of the appellant that although no timeframe was given in the original approval of settlement under CMRD Scheme, but afterwards by the letter dated 20th December, 2001 ultimatum was given to the respondents to make down payment of the settlement within 15 days next and when no such payment was made within the period, then the appellant filed a petition for modifying the order dated 17th January, 2002 by which the compromise was accepted by the Tribunal to be altered/modified on the basis of the default clause under the terms of the compromise, when no payment was made within the stipulated time.
4. The respondents' side has first of all taken the preliminary objection that the appeal is not maintainable under the provisions of the RDDBFI Act as the recovery case was disposed of on the basis of the compromise between the parties and a compromise decree cannot be assailed of in the appeal. This submission was considered, by the order dated 15th July, 2004 holding that the appeal is not against the simplicitor compromise decree, but some complicated question regarding validity of the compromise are being raised and considering that aspect the appeal was admitted. The matter can be elaborated further to the effect that the grievance of the appellant is not regarding the arriving of the compromise, but according to them, such settlement was made outside the Court and no compromise was effected at the intervention of the Court or by filing joint compromise petition; but the appellant Bank is not going away from the terms of settlement, but if the terms of settlement are accepted, it must be accepted as a whole and not by part and as such when the settlement amount was not paid within the stipulated time, then the other defaulting clause should have come into play and as such the order dated 17th July, 2002 regarding satisfaction of the claim of the Bank on the basis of the settlement amount being cleared by the respondents cannot be passed.
Thus I find that the appeal is maintainable, as the same has not been filed against the compromise decree.
5. The next submission of the respondent is that as per the compromise proposal amount was settled at Rs. 9.50 lacs and as per that proposal, the cost of the litigation was excluded and was to be borne by the appellant Bank themselves as per their expenditure ledger, but then again by letter dated 18th May, 2001, the settlement amount has been increased to Rs, 9.99 lacs and odd by including the cost/expenses and it is the contention of the respondents that for inclusion of such expenses within the settled amount dispute arose and so there was delay in making the payment from the side of the respondents and as such there is no scope to claim any interest for non-payment within the stipulated period and even if such interest is calculated, the same cannot be as per agreed rate of interest, when the loan was taken, but could be as per discretion of the Court/Tribunal as contemplated under Section 34 of CPC and as such his contention is that if the interest is found to be payable, then the same should be on the settled amount of Rs. 9.50 lacs and when payment has been made to the tune of Rs. 9.99 lacs, the same already included interest accrued thereon.
6. On the rival contentions of the learned Counsel for both the parties, I have perused the materials on record and it is found that although the appellant Bank filed the claim case for a sum of Rs. 20.00 lacs and odd but as per CMDR Scheme, compromise was arrived at to the tune of Rs. 9.50 lacs and proposal was sent to that effect, but then the approval from the Head Office came up for Rs. 9.99 lacs including the expenses. In the proposal the expenses were let off, but at the time of approval finally the same was included and nowhere it could be found that on the approved rate of Rs. 9.99 lacs as informed to the respondents by letter dated 18th May, 2001, any objection have been raised and when finally the same was considered by the satisfaction order dated 17th July, 2002 i.e. impugned order, the respondents have not raised any grievance. In that way, I find that the settled amount is Rs. 9.99 lacs and not Rs. 9.50 lacs as per proposal sent. But at the time of settlement only no timeframe was made, rather a vague statement was there to the effect that the amount should be paid immediately.
Afterwards that word 'immediately' have been enlarged and finally by the letter dated 20th December, 2001 timeframe was made of 15 days i.e.
the down payment ought to have been made by 4th January, 2002 and not beyond that, but it further appears that during this period a partial payment towards the settled amount have been finalized by invoking the dummy account of defendant respondent No. 1 to the tune of Rs. 3.00 lacs and odd and, therefore, the order was made to make the payment within six months next. Although in my view there was little scope to give such extended period by the Tribunal and when such time was given then definitely the appellant Bank was entitled to get interest on the balance amount of Rs. 6.00 lacs and odd from 4th January, 2002 up to 17th July, 2002. Then the question comes in as to what should be rate of interest whether contractual rate or the discretionary rate to be fixed by the Court in the circumstances of other case. When settlement has been arrived at and part payment has already been made, then there is no scope to get contractual rate of interest on the balance amount, rather it should be the discretionary rate to be fixed by the Court/Tribunal. In the position and circumstances as mentioned above, I find and hold that the appellant could be able to make out a case to the effect that they are entitled to get interest on Rs. 6, 75, 210/- from 17th January, 2002 till 17th July, 2002 and rate shall be in my view for the interest of justice @ 9% per annum simple. Thus the appeal is allowed with a modification in the order dated 17th July, 2002 to the effect that the satisfaction shall be recorded only when the respondent shall pay a further calculated amount towards interest @ 9% per annum on Rs. 6, 75, 210/- from 17th January, 2002 to 17th July, 2002 and the same should be paid within a period of two months from this date. The amount should be deposited with the Bank and then informed accordingly to the Tribunal. It is further made clear, if this interest amount is not paid within the timeframe as mentioned above, then the appellant shall be entitled to further interest on enhanced rate of 12% per annum from 17th January, 2002 till the date of realization.
7. In the result, the appeal is partly allowed with a modification in the order dated 17th July, 2002 as mentioned above in the preceding paragraphs.