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DELHI HIGH COURT
Rajiv Sahai Endlaw, J.
Yogendra Kumar Modi —Plaintiff
versus
M.K. Modi and Anr. —Defentants
CS(OS) 1585 of 2008 and IA No.2258 of 2016 (of D-2 u/O 7 R-11 CPC), OA No.49 of 2013 (against order dated 1st February, 2013 of JR), IA No.4853 of 2013 (of D-2 u/S 151 CPC) and OA No.401 of 2015 (of D-2 against order dated 14th September, 2015 of JR)
Decided on 23.11.2016
For the Plaintiff:Mr. Darpan Wadhawa, Mr. Aseem Chaturvedi, Ms. Ritika Ahuja and Mr. Vipul Joshi, Advocates
For the Defendants:Mr. Rahul Gupta and Mr. Shekhar Gupta, Advocates
Headnote:(a) Code of Civil Procedure, 1908 – Order XXXVII – Money suit – Decree for interest – Can be passed separately – Can also be passed jointly or severally against defendants – Alertantively Decree for principal amount and nterset can be passed making the principal amount inexecutable havning been already recovered. (Para 12)
(2000) 1 SCC 324 – Referred
A.I.R. 2013 Calcutta 41 – Distinguished
(b) Code of Civil Procedure, 1908 – Section 11 – Res judicata – Plaintiff claiming against more than one defendant on samr cause of action – Giving concession for non-grabt of interest against defendant no. 1 – The concession will bind the plaintiff against defendamnt no. 2 as well. (Para 17)
A.I.R. 1960 SC 941; A.I.R. 1964 SC 993; (1976) 4 SCC 66; 2015 SCC OnLine Del 8198; 2016 S.C.C. OnLine Del 4078 – Relied upon
(c) Contract Act – Section 43 – Both defendants taking undertaking jointly and severally – Plaintiff notb required to sue both defendants – Plaintiff however suing both denfendents – Judgment holding plaintiff entitled to principal amount only – Plaintiff cannot set up a case for interest against defendant no. 2. (Para 21)
A.I.R. 1938 Bom 360; (1879) L.R. 4 A.C. 504; A.I.R. 1917 Bombay 268 – Relied upon
Result: Suit dismissed with cost.
Rajiv Sahai Endlaw, J.—On 6th September, 2016, when this suit was heard last, the following order was passed:
“1. The plaintiff has instituted this suit under Order XXXVII of Code of Civil Procedure, 1908 (C.P.C.) for recovery of Rs.2,89,00,000/– with interest jointly and severally from the two defendants.
2. The two defendants applied separately for leave to defend. Both the defendants were granted conditional leave to defend i.e. subject to furnishing security in the sum of Rs.2,89,00,000/–.
3. The defendant No.2 purported to furnish security but which has not been accepted by the Registrar and the chamber appeals there against are pending consideration. C.S.(OS) No.1585/2008 Page 2 of 11
4. The defendant No.1 failed to furnish security and vide order dated 2nd July, 2012, a decree in the sum of Rs.2,89,00,000/– with costs but without granting any interest was passed in favour of the plaintiff and against the defendant No.1.
5. It is informed that the defendant No.1 in pursuance to the said decree has paid the sum of Rs.2,89,00,000/– to the plaintiff, though in instalments.
6. The counsel for the plaintiff states that the claim of the plaintiff against the defendant No.2 for recovery of interest survives.
7. On enquiry, it is informed that the money claimed in the suit was under a family settlement whereunder though the defendants No.1 and 2 undertook the liability to have a guarantee furnished by the plaintiff discharged but failed to do so resulting in the plaintiff paying the sum of Rs.2,89,00,000/- to the Bank on 15th June, 2007. The claim for interest is thus with effect from 15th June, 2007 till the said sum of Rs.2,89,00,000/- was paid by the defendant No.1 to the plaintiff in Instalments.
8. Admittedly, there is no agreement as to the rate of interest.
9. The contention of the counsel for the defendant No.2 who has also filed an application being IA No.2258/2016 under Order VII Rule 11 of C.P.C. in this regard is that the Court in the order dated 2nd July, 2012 leading to the decree having refused to pass any decree for interest, the plaintiff cannot now have a claim for interest against the defendant No.2.
10. The counsel for the plaintiff, on enquiry, clarifies that the plaintiff is not claiming any amount from the defendant No.1 towards interest and is confining the claim for interest against the defendant No.2 only.
11. Attention of the counsels has been invited to Section 34 of C.P.C. which appears to suggest that a decree for interest, if any, can be passed only when passing a decree for recovery of the principal amount and not separately.
12. The counsel for the defendant No.2 has also argued that if this Court does not agree with the contention of the defendant No.2, the matter be put to trial.
13. However, on enquiry, as to what evidence is to be led as to the rate of interest which is in the discretion of the Court, the counsel is unable to tell, as to for leading what evidence trial is sought.
14. The counsel for the defendant No.2 to also respond to the said aspect.
15. The counsels to also consider, whether not the claim for interest is barred by res judicata.
16. List on 27th October, 2016.”
2. On 27th October, 2016, on request of the counsels, the hearing was adjourned to today.
3. The counsel for the plaintiff and the counsel for the defendant No.2 Dr. D.K. Modi have been heard.
4. It is not in dispute that as far as Chamber Appeals No.49/2013 and 401/2015 preferred by the defendant No.2 against the orders dated 1st February, 2013 and 14th September, 2015 of the Joint Registrar not accepting the security furnished by the defendant No.2 are concerned, the same have become Infructuous, as the security was ordered to be furnished for the principal amount of Rs.2,89,00,000/– only which has since been recovered by the plaintiff from the defendant No.1. The plaintiff having sought recovery jointly and severally from the two defendants, after having recovered the amou
