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1965 Supreme(Pat) 80
PATNA HIGH COURT
S.C.Misra and S.N.P.Singh JJ.
Bhairo Kumar Prasad Jain
Versus
Jagat Dipendra Prasad
Letter Patent Appeal No. 10 of 1962 ;
Decided On : JULY 29, 1965
Tender of chalan on the last date for payment of money under an agreement is sufficient compliance with the terms of the agreement, even if the chalan is not accepted by the accounts office on that day, provided that the amount is actually deposited the next day.
Headnote:
CONTRACT - Tender of Chalan - Compliance with Agreement - Interpretation of Consent Order - Bihar Money Lenders Act, 1938 - Order 21, Rule 85, Civil Procedure Code - Tender of Chalan on the Last Date - Effect - Payment to Nazir - Express Order of Presiding Officer - Interpretation of Agreement - Tender Amounts to Payment - Deposit of Money in Court - Sufficient Compliance.
Fact of the Case:
The judgment debtor paid a sum of Rs. 1,000 to the decree-holder by virtue of an order dated the 18th June, 1960 when his application for fixing payment by instalments was still pending. There was an amicable arrangement between the parties which was recorded in an order dated 21-2-1961, whereby if the judgment-debtor pays Rs. 3,300 to the decree-holder or deposits the said amount in court to the credit of the decree-holder by 15th May, 1961, then lot No. 2 would be put to sale for realising the balance amount of the decretal dues in the first instance. In case of default of payment such portion of lot No. 1 which would satisfy the decree would be put to sale. On the 15th of May, 1961, the judgment-debtor filed a petition in court stating that he was able to arrange only for a sum of Rs. 500 and the decree-holder might be directed to accept that amount and. The balance of Rs. 2,800 would be payable to him within two weeks from that date. The decree-holder was reluctant to approve of this arrangement. Accordingly, shortly after the first petition on the 15th of May, 1961, another petition was filed on behalf of the judgment-debtor appellant that he was able to arrange for the entire amount of Rs. 3,300 which he was prepared to deposit and prayed for issue of chalan. The judgment-debtor, however, did not pay the amount hand to hand to the respondent or his lawyer, but he thought it proper to have the chalan for depositing the amount in court. The court ordered it to be kept on the record.
Finding of the Court:
The court held that the tender of the chalan by the judgment-debtor on the 15-5-1961, which was not accepted by the accounts office and for which reason the amount to he deposited was not actually deposited and which, however, was deposited the next day that is on the 16-5-1961, should be held to be sufficient compliance with the consent order and as such the decree-holder was bound to proceed in accordance with the consent order of the 21st of February, 1961.
Issues: Whether the tender of the chalan by the judgment-debtor on the 15th of May, 1961 to the accounts office was sufficient compliance with the terms of the consent order passed on the 21st February, 1961?
Ratio Decidendi: The court held that the tender of the chalan by the judgment-debtor on the 15th of May, 1961 to the accounts office was sufficient compliance with the terms of the consent order passed on the 21st February, 1961. The court relied on the decision in Bijoy Singh V/s. Raja Kirtya Nand Singh, AIR 1932 Pat 342, where it was held that where a purchaser filed a petition on the last date for acceptance of the balance of the purchase money, but the petition was not even accompanied with a chalan, it was open to the auction purchaser to pray to the court to accept the money even though he had not filed a chalan. The court also relied on the decision in Firm Kedarnath Radheshyam V/s. Hanuman Das Kejriwal, 1954 BLJR 511, where it was held that where a purchaser filed a petition on the last date for acceptance of the balance of the purchase money, but the petition was not even accompanied with a chalan, it was open to the auction purchaser to pray to the court to accept the money even though he had not filed a chalan.
Final Decision: The appeal was allowed with costs. The judgment and decree of the learned single Judge were set aside. The respondent-decree-holder was directed to proceed to execute the decree in the manner set out in the agreement between the parties mentioned in the order of the court dated the 21st February, 1961.
Misra, J.
1. This is an appeal by the judgment-debtor against the decision of the learned single Judge allowing the appeal of the decree-holder respondent in Miscellaneous Appeal No. 216 of 1961. The respondent held a money decree against the appellant for a sum of Rs. 14,000 and odd including costs passed on the 23rd of September, 1955. Execution Case No. 11 of 1955 was started at the Instance of the decree-holder on the 10th of December, 1966. The decree-holder included in the sale proclamation two properties under lot Nos. 1 and 2 which gave rise to a miscellaneous case for valuation of the two lots under Sec.18 of the Bihar Money Lenders Act. The executing court assessed the valuation of lot No. 1 at Rs. 38,400 and of lot No. 2 at Rs. 13,660. The appeal of the judgment-debtor against the valuation was dismissed by this court on the 9th of September, 1959. The decree-holder took out sale proclamation in respect of lot No. 1 as the value of that property would cover the entire amount of the decretal dues.
2. On the 18th of August, 1960, the judgment-debtor paid a sum of Rs. 1,000 to the decree-holder by virtue of an order dated the 18th June, 1960 when his application for fixing payment by instalments was still pending. It appears that there was some kind of amicable arrangement between the parties which was recorded in an order dated 21-2-1961, the relevant portion of which may be quoted here:
"Heard lawyers for the parties. It was agreed with the consent of the parties and their lawyers that if the judgment-debtor pays Rs. 3,300 to the decree-holder or deposits the said amount in court to the credit of the decree-holder by 15th May, 1961, then lot No. 2 would be put to sale for realising the balance amount of the decretal dues in the first instance. In case of default of payment such portion of lot No. 1 which would satisfy the decree would be put to sale."
3. On the 15th of May, 1961, which was the last date fixed under the terms of the above consent order for depositing the sum of Rs. 3,300 the judgment-debtor filed a petition in court stating that he was able to arrange only for a sum of Rs. 500 and the decree-holder might be directed to accept that amount and. The balance of Rs. 2,800 would be payable to him within two weeks from that date. The decree-holder was reluctant to approve of this arrangement. Accordingly, shortly after the first petition on the 15th of May, 1961, another petition was filed on behalf of the judgment-debtor appellant that he was able to arrange for the entire amount of Rs. 3,300 which he was prepared to deposit and prayed for issue of chalan. When a copy of this petition was served on the lawyer for the decree-holder, he made an endorsement on the back of the original petition saying that if the judgment-debtor was able to get together the entire amount, he was prepared to receive it and the prayer for issue of chalan was a mere pretence. The judgment-debtor, however, did not pay the amount hand to hand to the respondent or his lawyer, but he thought it proper to have the chalan for depositing the amount in court.
4. On this, the order passed by the court was as follows:
"Heard lawyers. Nazir to accept the amount. Issue chalan as prayed for."
Later on, another order was recorded by the court which runs thus:
"Chalan not received by the accounts office on the ground of late. Send it again tomorrow in the first hour. ".
The decree-holder made an application on the 16th May, 1961 for putting to sale the advertised property and the judgment-debtor filed a rejoinder to the application of the decree-holder. On the 17th May, 1961, the judgment-debtor filed a copy of the chalan showing deposit of Rs. 3,300 by chalan No. 178 dated 16-5-1961. The court ordered it to be kept on the record.
5. Accordingly the court had to take a decision on the respective claims of the parties, the appellants contention being that the tender of the chalan by him on the 15th of May, 1961 to the accounts office was
