Kerala High Court
Meppayur Co-Op Housing Society Ltd vs E.K.Balachandan on 13 August, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23000 of 2008(K)
1. MEPPAYUR CO-OP HOUSING SOCIETY LTD.
... Petitioner
Vs
1. E.K.BALACHANDAN
... Respondent
For Petitioner :SRI.N.L.KRISHNAMOORTHY
For Respondent :SRI.P.N.MOHANAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/08/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO. 23000 OF 2008
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Dated this the 13th day of August, 2008
JUDGMENT
This petition is filed under Article 227 of the Constitution of India challenging Ext.P8 order, by the decree holder. Respondent is the judgment debtor. As per Ext.P1 award respondent is to pay Rs.93571/- with interest at 17.2% on Rs.92,928/- from 1.3.2000 with cost. The award is dated 9.10.2000. Under Ext.P8 order, learned Musiff fixed the balance amount due at Rs.28,469/- and directed respondent to pay the same in four equal monthly instalments. The petition is filed contending that the amount calculated by the court is unsustainable and what is done by the executing court is deducting the amount paid towards the principal amount and thereby denying the interest legally due to the decree holder.
2. Learned counsel appearing for petitioner and respondent were heard.
W.P.(C023000/2008 2
3. On going through Ext.P8 order, it is clear that learned Munsiff did not fix the amount in accordance with the award, after properly adjusting the payments made by the respondent. It is true that the statement filed by the decree holder as well as the judgment debtor cannot be accepted. But that does not mean that court is not to fix the correct amount due. When part of the payment covered under the decree is made, decree holder is entitled to adjust that amount first towards the cost and then towards the interest payable and the balance to the principal.
4. Learned counsel for the respondent argued that interest payable under the award is only simple interest and the execution court calculated the total interest payable and deducted the amount paid by respondent towards interest and therefore there is no error in the calculation. As rightly pointed out by the learned counsel appearing for petitioner, when payments are made not on a particular day but on different occasions W.P.(C023000/2008 3 the method of adjusting the payment towards the interest as done by the learned Munsiff cannot be accepted. When a part of the payment is made subsequent to the award, interest as on that date has to be calculated and it is to be added to the principal amount and thereafter the payment made is to be deducted first towards the interest and then towards the principal amount and again when the second payment is made interest has to be calculated as on that date and payment is to be accounted and the actual amount is to be worked out. As the learned Munsiff has not done so, Ext.P8 order is quashed. Execution court is directed to fix the amount correctly and proceed with the execution in accordance with law.
Writ Petition is disposed of as above.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT SEPTEMBER,2006