Kerala High Court
State Bank Of Travancore, Tirupur ... vs K. Vinayachandran And Anr. on 2 November, 1988
Equivalent citations: AIR1989KER302, [1991]72COMPCAS329(KER), AIR 1989 KERALA 302, (1990) BANKJ 49
ORDER K.P. Radhakrishna Menon, J.
1. The revision petitioner is the plaintiff in O.S. 91/81, a suit recovery of Rs. 13,13,726.85 with interest thereon at 15.10% per annum and costs.
2. The suit was decreed on 24-8-1982. The Court below however, decreed future interest only at 6% notwithstanding the provisions contained in the proviso to Section 34, C.P.C. This proviso was introduced with effect from 26-6-1977. Though the petitioner-Bank had brought this aspect to the notice of the Court, the Court below rejected the same on the ground that the petitioner failed to prove the Notification bringing the proviso into force. According to the petitioner, the petitioner came to know of this finding of the Court below only on 20-12-1982. He thereupon moved LA. 214/83 under Order 47, Rule 1 for review of the judgment and decree. Since the petition was filed out of time, I. A. 213/83 to condone the delay in filing the petition was also filed.
3. The Court below dismissed both the petitions; and the revision is filed against the said orders.
4. That the petitioner had brought to the I notice of the Court the fact that the proviso to Section 34 had been brought into force with effect from 26-6-1977 by a Government Notification, cannot be disputed. That it was in the exercise of the statutory powers vested in them, as is seen from Section 2 of Chapter 1 of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104/76), the Government issued the Notification aforesaid, is beyond challenge. The Notification therefore is legislative in nature. This Notification is a law in force within the meaning of Sub-section (1) of Section 57 of the Evidence Act. From the discussion in the judgment which is sought to be reviewed, it is clear that the Court had taken note of the argument of the petitioner, based on the Notification. Yet on the ground that the Notification bringing the proviso into force, has not been proved in the manner provided for under Section 78, Evidence Act, the Court below refused to award interest as provided for under the proviso.
5. The first question therefore is, was the Court justified in not considering the claim of the petitioner for interest under the proviso on the ground that the plaintiff-Bank failed to prove the Notification bringing the proviso into force. A reference in this connection to Sections 56, 57 and 78 of the Evidence Act is relevant. Section 56 provides that no fact of which the Court will take judicial notice need be proved Section 57 enumerates the facts of which the Court shall take judicial notice. The Supreme Court in Onkar Nath v. Delhi Administration, AIR 1977 SC 1108, has observed that "recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge". That apart the Section provides that all laws in force in the territory of India, the Court shall take judicial notice of. The question therefore is, can the Notification bringing the proviso to Section 34 into force, be treated as a law in force in the Territory of India We have already seen that the Notification was issued under statutory powers and hence is legislative in nature. In this connection we should always have in view the well-established principle that all orders and Notifications made or issued under statutory powers and hence legislative in nature amount to law in force. (See State of Bombay v. F. N. Balsara, AIR 1951 SC 318; Executive Officer v. Devassy, 1970 Ker LT 991 (FB) and State of Madhya Pradesh v. Ramcharan, AIR 1977 Madh Pra 68 (FB)). The Notification read with Section 34 therefore is part of the law of procedure. This Notification since it amounts to law in force, the same shall be taken judicial notice of under Section 57 without proof of the same under Section 78 of the Evidence Act.
6. I am therefore of the view that since the Notification bringing the proviso to Section 34 into force was part of the law, the Court was bound to take judicial notice of under Section 57 of the Evidence Act without further proof of the same.
7. From the discussion above it is dear that the mistake crept in the judgment is an obvious and patent mistake and not something which can be established only by long-drawn process of reasoning, ft is also relevant to note that on this point there cannot be two opinions. I, therefore, am of the view that this is a mistake apparent on the face of the record warranting review of the judgment. The observation of the Supreme Court namely "a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions" (See T. S. Balaram v. Volkart Brothers, Bombay, AIR 1971 SC 2204) is relevant in the context. The petition for review therefore ought to have been allowed by the Court below.
8. One other ground on which the petition for review was dismissed was that the award of interest under Section 34 is entirely the discretion of the Court. The Court below is of the view that the proviso to Section 34 is only an enabling provisio. That means the proviso is not mandatory in nature meaning thereby that it is not imperative that future interest at the contract rate must begiven. There cannot be any dispute regarding this proposition. It should however, be remembered that the discretion under this proviso must be exercised on sound judicial principles. Ordinarily therefore future interest at the contractual rate is not refused except for sufficient reasons. That means refusal to award future interest at the contractual rate is only the exception and not the rule. The refusal to review the judgment on this ground also cannot therefore be sustained.
9. Regarding payment of Court-fee the petitioner is bound to pay the same under Article 5 of the Court-fees Act. The Court below has rightly found that the Court-fee paid on the petition is not correct. The Court below under the circumstances should have given the petitioner adequate time to pay the correct Court-fee.
10. The delay in filing the petition for review is explained by the petitioner like this : the petitioner could not trace out the Notification bringing the proviso into force.
The petitioner could get a copy of the Notification only after strenuous efforts. Taking these and other circumstances, particularly the mistaken approach to the issue by the trial Court, I am of the view that the delay in filing the petition for review requires to be condoned. Here it is relevant to note that the mistake is one committed by the Court and as already noted, it is apparent on the face of the record. The principle that no act of a Court shall prejudice a party, has rightly been pressed into service by the petitioner-Bank to substantiate its case.
11. For the reasons stated above I set aside the order dismissing LA. 214/83 and remand it to the Court below for a de novo consideration. The Court below shall pass appropriate orders granting adequate and reasonable time to pay the Court-fee, the petitioner under Article 5 of the Court-Fees Act is bound to pay. The court below shall keep in view the relevant observations contained in this order while disposing of the issue remanded for reconsideration. The parties shall be given sufficient opportunity to substantiate their respective cases.
The C.R.P. is allowed.