N.S. Pillai v Animon Odaikal Thekkathil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **RP.No. 85 of 2018 IN OP(C). 1838/2017** **AGAINST THE ORDER/JUDGMENT IN OPC 1838/2017 of HIGH COURT OF KERALA** ## **REVIEW PETITIONER/RESPONDENT:** **N.S. PILLAI AGED 80 YEARS, S/O.KRISHNA PILLAI, NOW RESIDING AT CHAITHANYA, KALLUMALA P.O., MAVELIKARA-690110.** **BY ADVS.** **SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** ## **RESPONDENT/PETITIONER:** **ANIMON ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.** **BY ADV.** **ADV.A R DILEEP** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.02.2019, ALONG WITH RP.768/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940 RP.No. 768 of 2018 IN CRP. 13/2015** ## **REVIEW PETITIONERS/REVISION PETITIONERS:** |**1**|**SAIFUDHEEN**| |---|---| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**2**|**BIJUMON**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**3**|**ANIMON**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**4**|**RASEENA**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**5**|**RINSA BHAI**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**6**|**SAJI BHAI**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| |**7**|**ASEENA BHAI**| ||**ODAIKAL THEKKATHIL, KAYAMKULAM MURI, KAYAMKULAM**| ||**VILLAGE.**| ||**BY ADVS.**| ||**SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)**| ||**SRI.A.R.DILEEP**| ||**SRI.KESHAVRAJ NAIR**| ||**SRI.P.J.JOE PAUL**| 3 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** ## **RESPONDENTS/RESPONDENTS:** |**1**|**N.S.PILLAI**| |---|---| ||**S/O. KRISHNA PILLAI, MANAGING PARTNER,**| ||**KAIRALY AUTO MOBILES, NEAR M.S.M COLLEGE,**| ||**KAYAMKULAM,**| ||**NOW RESIDING AT CHAITHANYA, KALLUMALA P.O,**| ||**MAVELIKKARA, ALAPPUZHA - 690110**| ||**FROM PULIVELI PADEETTATHIL,**| ||**VETTIYAR, VETTIYAR VILLAGE - 690557.**| |**2**|**BHAVANIYAMMA S. PILLAI**| ||**CHAITHANYA, KALLUMALA P.O, MAVELIKKARA, ALAPPUZHA-**| ||**690110.**| ||**FROM PULIVELIL PADEETTATHIL,**| ||**VETTIYAR,**| ||**VETTIYAR VILLAGE - 690557.**| |**3**|**BIJU S. PILLAI**| ||**CHAITHANYA, KALLUMALA P.O, MAVELIKKARA, ALAPPUZHA-**| ||**690110.**| ||**FROM PULIVELIL PADEETTATHIL,**| ||**VETTIYAR,**| ||**VETTIYAR VILLAGE - 690557.**| ||**BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL**| **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.02.2019, ALONG WITH RP.85/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 4 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** ## **COMMON ORDER** Heard the learned counsel on both sides. 2. Review Petition No.85 of 2018 in O.P(C)No.1838 of 2017 is taken as the leading case. The issues involved in R. P. No.768 of 2018 in C.R.P No.13 of 2015 is also disposed along with this. The parties are referred to in the rank in R.P. 85 of 2018. Review petitioner herein is the respondent in O.P (C) No.1838 of 2017 and first plaintiff in O.S. No.119 of 2003 before the Sub Court Mavelikkara. The suit is one for specific performance of a contract. The respondent in the review petition is the additional sixth defendant in the suit. Pending suit, the matter was referred to Lok Adalth and the parties settled the disputes in the Lok Adalath. An award was passed on 02.01.2008. The award was marked as Exhibit P1 in the Original Petition. As per section 20 (1) of the Legal Services Authorities Act 1987, award of a Lok Adalath shall be deemed to be a decree of a Civil Court or as the case may be, an order of any other court where a compromise or settlement has been arrived at by a Lok Adalath in a case referred to it under Sub Section 1 of Section 20 of the Act. It is clear from this provision that the award passed by a Lok Adalath can be regarded as a decree for all practical purposes, though in reality it is not a 5 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** decree. By extending a legal fiction, the award can be executed as if it were a decree. 3. Review petitioner herein along with other decree holders put the award in execution before the court, in E P.No.58 of 2010. In that execution petition, the respondent raised various contentions including that the award was not executable. The court below ruled that the award is capable of being executed. Against that matter, the respondent herein along with other judgment debtors approached this court in C.R.P No.13 of 2015. After hearing both sides, a learned Single Judge of this Court disposed of the matter by an Order dated 08.06.2015 dismissing the contentions of the judgment debtors in the execution proceedings. Paragraph 9 of the judgment is extracted hereunder for clarity. _“9. By the mere fact that petitioners were given an opportunity to issue two cheques for the award amount of Rs.3,75,000/-, the decree holders cannot be driven to the corridors of courts once again for initiating fresh civil or criminal proceedings for the recovery of the amount covered by cheque. It seems that only part of the award is met, and an amount of Rs.2,00,000/- happens to be the_ 6 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** _balance amount for the period from 01.12.2008. The decree holders are entitled to get the decree for the said amount with interest and costs, executed. The impugned order does not suffer from any illegality, irregularity or impropriety. This CRP is devoid of merits, and is only to be dismissed, and I do so.”_ 4. When the petitioner claimed costs and interests in the execution proceedings, the judgment debtors raised a contention that as per the terms of the award, the petitioner is not entitled to get interest for payment stipulated to be made at the time of settlement between the parties. It can be seen from the terms of the award that the petitioner herein was entitled to claim a total sum of Rs.3,75,000/- from the respondent and other judgment debtors. The amount has to be paid by way of two cheques as agreed to between the parties. It is the case of the decree holder that one cheque has been encashed and the other was dishonoured due to insufficiency of funds in the account of the respondent herein. It is clear from the terms of agreement that the respondent herein had undertaken the liability of paying off the decree holder. Regarding the contention raised by the decree holder that the cheque issued by the 7 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** respondent was dishonoured, he raised an opposition by contending that to his knowledge the cheque was not presented for collection at all. This is a disputed question of fact. Learned counsel for the respondent took me through an order passed by the executing court in an application filed by the respondent seeking a direction to the decree holder to produce any document to substantiate his contention that the cheque issued by the respondent was presented for collection and it was dishonoured (E.A No.151 of 2016). After hearing both sides, the court below dismissed the application. It is therefore contended that the decree holder now cannot be heard to say that he did not get an opportunity to establish the factual issue that the cheque issued by the respondent had been presented for collection and it was dishonoured. It is also contended by the learned counsel for the respondent that in the counter statement to the execution petition itself the judgment debtors had taken up a contention that the cheque in dispute was not presented and it was not dishonoured. This is relevant to determine the entitlement of interest as claimed by the petitioner. 5. The direction issued by this Court in C.R. P. mentioned above is challenged in R P No.768 of 2018 contending that, the observations in the 8 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** judgment goes against the award and therefore it cannot have any legal effect. It is settled law that any modification of award can be made only through another Lok Adalath, if the parties co-operate to have a notification or through a proceeding under Article 226 of the Constitution of India. Without resorting to any of these remedies, the decree holder is now trying to rely on the observations in the CRP judgment is the complaint raised by the learned counsel for the respondent. 6. Per contra, learned counsel for the review petitioner contended that in law and equity, the petitioner is entitled to get interest and costs for the delayed payment. According to him, the execution petition itself was necessitated for the reason that, the judgment debtor failed to satisfy the award by paying off the decree holder. 7. Learned counsel for the review petitioner in RP NO.85 of 2018 placed strong reliance on a decision rendered by the Supreme Court in _**Thomas v. Thomas Job(AIR 2005 SC 3575)**_ . The decision reiterates the undeniable principle that an award passed by a Lok Adalath is fictionally deemed to be a decree of court. It is further observed that courts have all the powers in relation thereto as it has in relation to a decree passed by itself. Paragraph 16 of the judgment is quoted hereunder. 9 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** _“16. In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalath is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.”_ On a careful reading of the above decision, it can be seen that it speaks about meaningful enforcement of the award as if it were a decree for the benefit of both parties. There cannot be a doubt regarding this proposition. 10 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** But the question to be answered here is whether on the basis of this decision anything which was not present in the award can be added to it by an interpretative process. In my view, the answer should be in the negative. 8. In this context, it is relevant to remember the well settled proposition of law that a word or sentence cannot be picked up from a judgment to construe that it is the ratio decidendi in the case. It is also a well settled proposition of law that a judgment cannot be read as a statute and interpreted and applied to fact situations. The decision rendered by the Supreme Court in _**H H Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. Union of India ((1971) 1 SCC 85)**_ has been reiterated in _**Vishal N.Kalsaria v. Bank of India 2016 (1) KLT 623 (SC)**_ . It is therefore clear that the judgment passed by this court in the Civil Revision Petition cannot be interpreted to mean something different than that was agreed to between the parties resulting in the award. 9. Learned counsel for the review petitioner placed reliance on _**M/s S.R. Paramjothi v. Kunju ((1979) 1 ILR Kerala series 530)**_ to urge the implication of section 98 and section 30 of the Negotiable Instruments Act, 1881. In the facts and circumstances, the provisions under the 11 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** Negotiable Instruments Act has no relevance because we are only concerned with execution of the award passed in an Adalath. The only question to be considered is whether the execution court can add or subtract something from the award passed by an Adalath based on the consent of the parties. Therefore, I need not venture to explain the principles in the above provisions. 10. The learned counsel for the review petitioner relied on _**Muthukrishna Raja and another v. Viswalinga Kadavarayar and others ((1940) AIR MADRAS 893)**_ to contend that when a compromise decree failed to provide provision for future interest, the execution court can proceed on the assumption that the parties agreed to pay interest. That was a case wherein the compromise decree contained a specific stipulation that the plaint claims are admitted to by the defendant. In the plaint, there was an express claim for future interest after the date of decree. In that context, the Madras High Court rendered a ruling in the above manner. That principle cannot be applied to this case. 11. Learned Counsel for the respondent relying on _**Punjab State and others v. Harvinder Singh (( 2008) (2) KLT 359),**_ a decision rendered by the Supreme Court contended that interest cannot be granted by the 12 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** execution court if the same had not been granted by the court passing the decree. If we assume that the award is a decree for all practical purposes, what is omitted to be mentioned in the award cannot be supplied at the instance of the execution court. Same debility applies to this court while handling a Civil Revision Petition as well. If we go to section 3 of the Interest Act 1978, it can be seen that in certain cases by issuing a written notice by the person entitled to claim interest, he can make the other party liable for interest. The above provision is also not applicable to the present case. Therefore, viewing from any angle, I find no reason to sustain the contention of the review petitioner that the observations in the judgment of this Court in CRP No.13 of 2015 would enable them to claim interests and costs, which are not provided in the award. It is a fundamental principle that award is passed after deliberation between the parties and they must have mutually abandoned some claims to reach at a compromise. Resurrection of such claims will go against the spirit of the settlement through mechanism under the Legal Services Authorities Act. As submitted by the learned counsel for the respondent that the factual issue whether there has been an actual dishonour of the cheque was not established by the decree holder. From that angle also, I find no 13 **R.P.NO.85 OF 2018 IN OP(C)No.1838 OF 2017& R.P.No.768 OF 2018 IN C.R.P.No.13 OF 2015.** justification for granting interest and costs. 12. After considering all the rival contentions, I am of the view that the Review Petition No.85 of 2018 in O.P.(C) No.1838 of 2017 is without any merit. Hence it is dismissed. RP No.768 of 2018 in CRP No.13 of 2015 is allowed to the extent of holding that the observations by this Court in the judgment in C.R.P.13 of 2015 will not authorize the decree holder to claim interest and costs against the terms of the award. All pending interlocutory applications will stand dismissed. Sd/- **A.HARIPRASAD** **JUDGE** SCS/12/02/19 //TRUE COPY// PA TO JUDGE