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1968 Supreme(Cal) 198
HIGH COURT OF CALCUTTA
D. N. Sinha, B. C. Mitra
DHIRENDRA NATH SEN - Appellant
Versus
SANTASILA DEBI - Respondent
A. F. O. O. 8 Of 1968 (Suit No. 277 Of 1964)
Decided On : SEPTEMBER 05, 1968
A charge declared by a decree itself can be enforced in execution and it is not necessary to file a suit to enforce such a charge.
Headnote:
TENDER - INTEREST - VALID TENDER - CONDITIONS - EFFECT OF REFUSAL - EQUITABLE EXECUTION - APPOINTMENT OF RECEIVER - JURISDICTION - CHARGE - ENFORCEMENT - SUIT OR EXECUTION.
Fact of the Case:
The appellants were directed to pay certain amounts to the respondent in five equal quarterly installments. The appellants tendered the first installment on the due date, but the respondent refused to accept it on the ground that she had challenged the award by an application in Court which was pending. The appellants tendered the subsequent installments, but the respondent refused to accept them as well. The respondent filed an application for execution of the decree, and the appellants objected on the grounds that (1) the application was misconceived because the charge declared in the decree could only be enforced by a suit, (2) the appointment of a receiver in execution was a method of equitable execution which could only be resorted to if there was any legal impediment to the ordinary mode of execution, and (3) in the facts and circumstances of the case, no interest was payable, as the decree-holder failed and neglected to accept lawful tenders.
Finding of the Court:
1. The application for execution was not misconceived, as the charge declared in the decree could be enforced in execution and it was not necessary to file a suit to enforce such a charge. 2. The appointment of a receiver in execution was a valid exercise of the Court's jurisdiction, as there was no legal impediment to the ordinary mode of execution. 3. The appellants were not liable to pay interest on the amount due between 1-9-1955 and 22-5-1956, as there was a valid tender during this period and an outright rejection on the ground that an application was pending in Court for setting aside the award.
Issues: 1. Whether the application for execution was misconceived because the charge declared in the decree could only be enforced by a suit. 2. Whether the appointment of a receiver in execution was a method of equitable execution which could only be resorted to if there was any legal impediment to the ordinary mode of execution. 3. Whether in the facts and circumstances of the case, no interest was payable, as the decree-holder failed and neglected to accept lawful tenders.
Ratio Decidendi: 1. A charge declared by a decree itself can be enforced in execution and it is not necessary to file a suit to enforce such a charge. 2. The appointment of a receiver in execution is a valid exercise of the Court's jurisdiction, as there is no legal impediment to the ordinary mode of execution. 3. A valid tender stops the further running of interest. Such a tender to be valid must satisfy the following conditions: (a) It must be of the entire amount due upon the date of tender. (b) A tender must be unconditional, or at all events, free from any condition to which the creditor may rightfully object. (c) The tender must be "kept good", that is to say the offer of payment must be a bona fide offer. The money due must be actually tendered and where interest is to be avoided the amount due should be set aside for payment and it must be shown that the tenderer was at all material times ready and willing to make the payment.
Final Decision: The appeal was dismissed with costs, subject to the variation that the appellants would not be liable to pay interest on the amount due between 1-9-1955 and 22-5-1956.
( 1 ) THIS is an appeal against the judgment and order of Masud J. dated 14-9-1967. The facts are briefly as follows: By an order dated November 29, 1954 certain disputes were referred to sole arbitration of the late Dr. Radhabinod Pal. On May 27, 1955, the arbitrator made his award. Judgment on award was passed on May 22, 1956. The award related to the adjudication of certain disputes between members of the same family. The relevant clause in the said award is Clause (10) which runs as follows:"10 (a) That 1. Sri Dhirendra Nath Sen 2. Sri Priya Nath Sen 3. Sri Anadi Nath Sen 4. Sri Jitendra Nath Sen 5. Sri Satyendra Nath Sen 6. Sri Fanindra Nath Sen 7. Sri Rabindra Nath Sen shall each pay severally to Smt. Santasila Debi the sum of Rs. 5000 (five thousand) each (in all Rs. 35000 thirty five thousand) in full satisfaction of her claim to the dividends from the New India Glass Works (Calcutta) Ltd. , upto the close of the year 1945-46 as also in full discharge of her claim in respect thereof from the joint family. (b) That each of the seven brothers named above shall pay to Sm. Santasila Devi the amount thus declared payable by him in five equal quarterly instalments of Rs. 1000 each the first of such instalments falling due on the 1st September 1955. In case of default in the payment of any of these instalments interest on the defaulted amount at the rate of 6 per cent per annum shall be payable from the date of default. (c) That the above payments shall remain charged on the respective allotments of the seven brothers contained in paragraphs 2, 4 (a) and 6 of this award, these charges having priority over the charges created in paragraph 16 below in favour of Sm. Sovabati Sen. "
( 2 ) THUS, five equal quarterly instalments were payable on 1st September, 1955, 1st December 1955, 1st March 1956, 1st June 1956 and 1st September 1956. On the 1st September, 1955 Shri D. Sen, Solicitor for the parties Nos. 2, 4, 5 and 7 mentioned above, wrote to Messrs. T. Banerjee and Co. , Solicitor for the respondent No. 1, enclosing a sum of Rupees 4000 in cash being the amount of the first instalment payable by the four parties abovenamed in terms of the said award. On the same day, Messrs. T. Banerjee and Co. refused to accept the said tender of Rs. 4000 on the ground that their client, respondent No. 1, had challenged the award by an application in Court which was pending and their instructions did not permit them to accept it. Similarly, on 2nd September 1955 Shri D. Sen, solicitor for the parties Nos. 1 and 6 wrote a letter to Messrs. T. Banerjee and Co. , solicitor for respondent No. 1, enclosing a sum of Rs. 2002 being a payment of first instalment together with Rs. 2 as interest. By a letter dated 2nd September 1955 Messrs. T. Banerjee and Co. refused to accept the said sum on the same ground, namely the pendency of an application. On May 22nd, 1956 the application made by the respondent No. 1 was dismissed and judgment on award was passed. On May 28th. 1956 Shri D. Sen on behalf of the parties Nos. 1, 2, 4, 5 and 7 wrote a letter to Messrs. T. Banerjee and Co. enclosing a sum of Rs. 18000 in cash, stating that it was on payment of the amount payable to their client in terms of the said award and decree. On May 28th, 1956 Messrs. T. Banerjee and Co stated that they would not accept the money without their client's instructions. On May 31st 1956 Shri D. Sen again wrote to Messrs. T. Baneriee and Co. requesting them for information as to whether they had received instructions to accept the money. No reply was sent to this letter. What had happened in the meantime was that an appeal had been preferred by respondent No. 1 against the decree passed on the said award dated 22-5-1956. On January 29, 1957 the appeal was dismissed. On February 18th, 1957 Shri D. Sen as solicitor for Shri S. N. Sen wrote a letter to Messrs. T. Baneriee and Co. enclosing a sum of Rs. 5000 in cash stating to be the amount payable to the respondent No.
