Punjab and Sind Bank Vs. A.B.C. theatre and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. both the plaintiff bank as well as the defendants were not satisfied with the judgment and decree of the trial court and they filed the appeal and cross-objections which were dismissed by the first appellate court, vide the impugned judgment and decree dated may 23, 1994. the bank was still not satisfied with regard to the mode of interest awarded by the courts below ;hence the second appeal and in this manner the short and concise point involved in the present appeal is whether the bank is entitled to interest at the rate of 15 per cent.r. l. anand, j.1. this is a regular second appeal and has been directed against the judgment and decree dated may 23, 1984, passed by the additional district judge, hoshiarpur, who affirmed the judgment and decree dated may 16, 1981, passed by the court of the sub-judge, 1st class, dasuya, who passed a preliminary decree in favour of the appellant and against the respondents for the recovery of rs. 4,23,295.35 with interest at the rate of 15 per cent. per annum from the date of the filing of the suit, i.e., february 19, 1979, till the date of decree, i.e., may 16, 1981, and thereafter at the rate of 7 per cent. per annum till realisation of the decretal amount.2. the brief facts of the case are that punjab and sind bank ltd. (hereinafter called 'the bank') filed a money suit for rs. 4,23,295.35 against the defendant-respondents and claimed interest at the rate of 15 per cent. per annum by the sale of hypothecated/mortgaged property and against the personal and other properties of the defendants. i need not incorporate the entire pleadings of the plaintiff bank because those are not relevant for the purpose of disposal of the present appeal but suffice it to mention that the suit of the bank was contested by the defendant-respondents on various pleas and on the conclusion of the proceedings, the trial court granted a money decree and awarded interest at the rate of 15 per cent. per annum on the claimed amount from the date of the filing of the suit till the date of decree and at the rate of 7 per cent. per annum from the date of decree till full payment by the sale of mortgaged/hypothecated properties.3. both the plaintiff bank as well as the defendants were not satisfied with the judgment and decree of the trial court and they filed the appeal and cross-objections which were dismissed by the first appellate court, vide the impugned judgment and decree dated may 23, 1994. the bank was still not satisfied with regard to the mode of interest awarded by the courts below ; hence the second appeal and in this manner the short and concise point involved in the present appeal is whether the bank is entitled to interest at the rate of 15 per cent. per annum from the date of suit till the payment as per terms of the mortgage or it is entitled to interest at the rate of 7 per cent. per annum from the date of decree as awarded by the courts below.4. i have heard shri deepak agnihotri, advocate, on behalf of the appellant with whose assistance i am disposing of this appeal which involves a very short point and can be disposed of in the light of the provisions of section 34 of the civil procedure code, 190'8. before i deal with the point involved in this appeal, i may mention that the loan which was advanced to the defendants was for commercial purpose as the defendants wanted to avail of the loan in order to run a theatre. section 34 of the code of civil procedure, 1908, lays down as follows :' 34. interest. -- (1) where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6 per cent. per annum, as the court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit : provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6 per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. explanation i. -- in this sub-section, 'nationalised bank' means a corresponding new bank as defined in the banking companies (acquisition and transfer of undertakings) act, 1970 (5 of 1970). explanation ii. -- for the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. (2) where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.' 5. a perusal of the above provisions would show that all amounts due to the bank become the principal amount and the bank is permitted to charge the contractual rate of interest which was 15 per cent. per annum of which the bank/appellant has been deprived. in these circumstances, the courts below were not justified in awarding future interest at the rate of 7 per cent. per annum from the date of decree, i.e., may 16, 1981, up to the date of realisation.6. in this vie. w of the matter, i accept this appeal, modify the judgments and decrees of the courts below and grant a declaration to the plaintiff-appellant that it will be entitled to charge the contractual rate of interest on the suit amount even from the date of decree up to the date of payment according to the terms of the mortgage deed. further, it is made clear that the bank is entitled to realise that amount by sale of the hypothecated property and also from the personal properties of the defendant-respondents. now a fresh preliminary decree be prepared in the above terms.