Kadam Rosul Silicate Works and others Vs. Sonali Bank

Kadam Rosul Silicate Works and others.(Appellant)

Vs.

Sonali Bank (Respondent )

 

Supreme Court

Appellate Division

(Civil)

JUSTICES

Shahabuddin Ahmed CJ

MH Rahman J

ATM Afzal J

Mustafa Kamal J

Latifur Rahman J

Judgment :February 26, 1990

The Code of Civil Procedure  1908 (V of 1908), section 34(1) & (2)

Admission of the appellant was limited upto the extent of principle amount. There is no indication in the decree that the respondent is entitled to any further interest on the principle amount till realization. The terms of the decree being silent as to further interest or any interest, it must be held under section 34(2) CPC that the court has refused such interest. The view taken by the High Court Division cannot therefore be supported. Thus the appeal is allowed and the appellants pay an amount of tk. 2000/- to the respondent as cost within three months failing which it will bear interest at the rate of 9% till realization…… ………(10 & 12)

Lawyers :

ABM Khairul Huque, Advocate, instructed by Md. Nurul Huq, Advocate-on-Record, (absent)—For the Appellants.

Asrarul Hossain, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent.

Civil Appeal No. 14 of 1986.

(From the Judgment and Order dated 14th Sep­tember, 1984 passed by the High Court Division, Dhaka in Civil Revision No. 287 of 1984).

JUDGEMENT

ATM Afzal J. – Appellants are judgment-debtors in Money Execution Case No. 12 of 1983 in the Court of Subordinate Judge, Narayanganj. The question for consideration in this appeal by leave is whether the appellants are liable to pay any interest on the principal sum of Tk. 50,226.70 as claimed by the respondent Sonali Bank, (plaintiff—decree-holder) and decreed on admission by the de­fendant—appellants.

2. Facts of the case, briefly, are that the re­spondent filed Money Suit No. 21 of 1978 on 18.8.78 in the Second Court of Subordinate Judge, Dhaka claiming the aforesaid sum of Tk. 50,226.70 (with interest) on account of loan advanced to the ap­pellants. The original loan amount was Tk. 45,000/- to which interest and other charges were added upto 30.6.78 and on calculation, the total claim came to as aforesaid. The Money Suit on transfer to the Court of Subordinate Judge, Narayanganj was re­numbered as Money Suit No. 7 of 1981. On 12.3.81 the appellants filed a petition admitting the claim of the Bank minus Tk. 15,000/- which was already paid and prayed for instalments for “the balance amount of the claim”. On 13.3.81 the suit was decreed on ad­mission and the decree was drawn up in the follow­ing terms: Plaintiff claims for an amount of Tk. 50,226.70 paisa which was taken as loan………..” suit be decreed on admission with cost. The defendant is directed to pay the decretal dues in 35 equal monthly instalments commencing from 1st May, 1981. The defendant must pay the in­stalments regularly if failing one instalment of the dues the plaintiff shall be entitled the balance amount by way of execution of the decree on admission Tk. 35,226.70 to be paid by the defendant to the Plaintiff (total monthly 1140.00 paisa per instal­ment)’. The cost was assessed at Tk. 4,701,00/-.

3. The respondent filed the aforesaid Execution Case claiming Tk. 80,132.40 which included interest on the balance amount upto 30.4.84. The appellants paid some instalments after the decree was passed and the balance, according to them, stood at Tk. 28,087.70 paisa at the time of execution of the de­cree. On 16.5.84 the appellants prayed for accepting the aforesaid balance sum and submitted that they were not liable for further interest after the decree. The learned Subordinate Judge rejected the prayer and the contention inspite of holding that: “It is fact, that the order in execution does not clearly sanction the interest in favour of the decree-holder but the prayer of the decree-holder in respect of interest till final realisation along with penal interest has not been specifically denied by the court.”

4. On 20.5.84 the appellants again prayed for acceptance of the balance amount including cost but without interest and for withdrawal of the attachment of their immovable property under Order XXI rule 55 of the Code of Civil Procedure but again it was re­jected whereupon the appellants came up in revision before the High Court Division against the said or­ders dated 16.5.84 and 20.5.84. The High Court Di­vision upheld the argument of the respondent Bank that the decree passed was on admission and as such it was for the entire claim of the plaintiff as made in the plaint which includes interest at the rate of 13% on the claimed amount till realisation of the dues. The Rule was accordingly discharged with some modification by the impugned judgment and order dated 4 September, 1984 passed in Civil Revision No. 287 of 1984.

5. Leave was granted to consider whether the view taken by the High Court Division as to interest to be paid by the appellants on the principal sum de­creed on admission was correct or not.

6. Mr. ABM Khairul Haque, learned counsel for the appellants, submitted that the admission of the appellants was only in respect of the principal amount (balance) and the decree having not men­tioned anything about further interest on the princi­pal sum adjudged, it shall be deemed to have been re­fused in terms of sec. 34(2) of the Code of Civil Procedure and thus the view taken by the High Court Division was not justified in law.

7. Mr. Asrarul Hossain, learned Counsel for the respondent reiterated his submission which found favour with the High Court Division as noticed above. Mr. Hossain also submitted that the suit hav­ing been decreed on admission, the whole prayer in the plaint without condition stands admitted and there is no scope for applying section 34(2) CPC in the facts of the case.

8. In the context of the contentions raised it becomes necessary to consider as to what was admit­ted by the appellants and what was the decree passed on admission, in particular if there was any interest allowed on the principal sum adjudged till realization of the dues.

9. Section 34(1) CPC provides that in a money decree, the court may, in the decree, order interest to be paid on the principal sum adjudged pendente lite, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. Sub-section (2) provides that where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid 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.

10. It is to be seen therefore if in the decree the Court has allowed any interest, pendente lite and/ or further, in terms of section 34(1) CPC. The appel­lants in their application dated 12.3.81 clearly stated that the suit will be decreed of the claimed amount less than Tk. 15,000/- which has been paid. The owner of the defendant firm (appellant No. 2) in his deposition prayed for deduction of the interest. He was not cross-examined on this point. Now looking at the decree which was passed the contents of which has been reproduced above it is abundantly clear that the admission of the appellants was limited and ac­cepted only in respect of the principal sum of Tk. 50,226.70 paisa. It has been specifically mentioned in the decree that the plaintiff shall be entitled to the balance amount of Tk. 35,226.70 paisa (Tk. 50,226.70/- Tk. 15,000/- already paid) if the appel­lants failed to pay any instalment besides the cost. The appellants neither admitted the interest claimed in the plaint nor it was awarded in the decree. There is no indication in the decree that the respondent is entitled to further or any interest on the principal sum till realisation of the dues. In view of the facts of the case and the terms of the decree, it is impossi­ble to uphold the contention of Mr. Hossain that the admission of the appellants was in respect of the whole claim made in the plaint including interest and the decree must be construed as such. The terms of the decree being silent as to further interest or any interest, it must be held under section 34(2) CPC that the court has refused such interest. The view taken by the High Court Division cannot therefore be supported.

11. The following statement has been filed showing payment made by the judgment debtor-appellants which has not been disputed by Mr. Hos­sain. The appellants have also filed a photo copy of the receipt showing deposit of the balance amount of Tk. 5000/-(as per the statement) on 22.2.90. A fur­ther sum of Tk. 1138 also seems to have been de­posited on 24.2.90.

CA. No. 14 of 1986 Payment made by the J. Dr.

1. 22.7.80 : 10,000.00

21.8.80 : 5,000.00

15,000.00

paid before decree & during pendency of the suit.

Decree passed for payment of Tk. 35,226.70 by equal 35 instalments @ 1140/-

3. Paid by chalan dt. 21.4.81

:

 1140/-
4.6.81

:

 1140/-
25.7.81

:

 1140/-
15.8.81

:

 1140/-
30.6.82

:

 1140/-
12.7.82

:

 1140/-
6,840/-
23.5.84 28,087.70

Paid Tk. 34,927.70

Decree : Tk. 35,226.70

Cost : Tk. 4,701.00

Tk. 39,927.70

Total Paid Tk. 34,927.70

Balance 5000.00

Md. Nurul Huq

Advocate-on-Record

9.12.89

12. Mr. Hossain ultimately submitted that the appellants should in any case be made to pay further cost in as much as they not only defaulted in the payment of instalments regularly forcing the respon­dent to levy execution at considerable cost but made the last payment on their own showing only on 22.2.90 and the respondent had to incur cost at all stages of the litigation since the decree on admis­sion. There is some substance in this submission of Mr. Hossain and it is ordered that the appellants pay an amount of Tk. 2000/- to the respondent as cost within three months from date failing which it will bear interest at the rate of nine percent per annum till realization.

In the result, the appeal is allowed with cost as mentioned above. The impugned judgment of the High Court Division is set aside. The Money Execu­tion case be struck off and the attachment of the ap­pellants’ property shall be deemed to be withdrawn.

Ed.

Source : 42 DLR (AD) (1990) 294

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