IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.282 of 2010 Yogesh Prasad Sah, Son of Late Govind Sah, Resident of Subhash Nagar Rohani, P.S. – Gogri, Distt. – Khagaria (Bihar). ………. Applicant / Appellant. Versus Union Of India, through the General Manager, North East Railway, Gorakhpur. ……….. Respondent / Respondent. ----------- For the Appellant : Mr. Pravin Kumar Gupta, Advocate. For the Respondent Railway : Mr. Anil Kumar Sinha, Advocate. : Mr. Mritunjay Kumar, Advoate. 08/ 24.08.2010 This miscellaneous appeal is directed against the order dated 26.07.2009 passed by the Railway Claim Tribunal, Patna Bench by which a claim of Rs.3,00000/- has been granted for the disablement of the victim regarding his loss of hearing and Rs.50,000/- has earlier been paid and hence ordered to pay Rs.2,50,000/- and it has been ordered that the amount be paid within two months else, the respondent will be liable to pay the interest on the compensation amount to the tune of Rs.9% per annum from the date of the petition to the date of receipt of the compensation. Learned counsel for the appellant, however, contended that the grievance of the appellant is not about the quantum of compensation but the grievance is that no interest has been ordered for payment on the amount falling due as a 2 compensation from the date of the petition to the date of the order. However, he has submitted that the amount has to be paid within two months but the amount paid. No interest at all have been paid even a single penny as interest and hence contended that under the Interest Act for recovery of any debt or damage or in any proceeding in which a claim for interest the court requires to allow the interest and has placed reliance upon unreported decision dated 13.04.2010 passed in M. A. No. 337 of 2008. Learned counsel for the Tribunal, however, contended that the appellant in one side filing an appeal and to the other side receiving the entire amount and hence placed his contention relying upon a decision reported in 1971 SC Ramesh Chandra Vs. Chunni Lal 1243 (paragraph 8) which runs as follows :- “when the plaintiff has elected to proceed in some other manner than the specific performance he cannot ask for the later relief. This is what Scrutton L. J. said in Dexters Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358 “So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad.” In the present case, however, the above rule cannot apply because the appellants had, by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct, it has already been mentioned at a previous stage that after the decision of the trial Court the appellants had even 3 applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance.” Hence contended that the money has been received for which the award granted even after receiving the money the appellant is challenging the order in appeal which he cannot be permitted. Hence, the question for consideration is whether the appellant can pursue his claim even after the impugned order of the Tribunal and even after receiving the amount. Learned counsel for the appellant, however, contended that he has not challenged the award which has been granted but has merely asserted that on the said amount no interest has been given nor any reason has been assigned why the interest has not been granted. However, on the respective submission of the parties the question for consideration is whether the appellant is entitled for interest on the compensation even after receipt of the award amount in his 4 Khata. However, the contention of the learned counsel for the respondent that a person cannot at the same time make two contradictory claims or even take the benefit of the decree and challenge the decree at the same time i.e. the person may not aprobate or reprobate at the same time. However, it is well settled that the principle of a probate and reprobate are prima facie principle of estoppel and it expresses two propositions (i) that the person in question having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile (ii) that he will not be regarded to have elected a course of conduct unless he has taken a benefit arising out of that course of conduct which he has first pursued which is inconsistent with subsequent conduct i.e. if the appellant having two inconsistent claim and if he has elected to abandon one and pursue to other then he may not after word choose to return to the former claim and sue for it but this rule is not applied where the two claims are not inconsistent with and the circumstance do not show an intention to abandon one of them. Here, under the facts and circumstance the appellant 5 filed a claim petition before the Tribunal and the Tribunal granted him a compensation of Rs.3,00000/-, but not give any interest on the said compensation or damage. The appellant is not challenging the quantum of compensation to the extent of Rs.3,00000/-. Had he been challenged the quantum of compensation on one hand and preferred an appeal challenging the quantum, on the other hand it may be said to have taken inconsistent stand but when he is not challenging the quantum and accepting Rs.3,00000/- as compensation and receiving that amount, in my opinion, it is not inconsistent stand to apply the principle of aprobate and reprobate. However, his stand is that his claim about the interest on the said amount which is damage being given subsequent to the date of the filing of the petition or claim and hence the appeal is with regard to the interest and not with regard to the quantum of compensation granted and hence in my opinion receiving the quantum and making a claim for interest on the said quantum is not an inconsistent stand and hence the principle of aprobate and reprobate does not apply to the facts and circumstances of this case and hence the stand taken by the respondent Tribunal does not stand to reason to be applied and hence, however, regarding 6 the interest Section 3 and 4 of the Interest Act is relevant. However, it is the discretion of the Tribunal to grant interest while granting the claim. However, the Tribunal granted the relief of payment of compensation but did not order to pay interest on the said compensation and hence the appellant has been denied to the use of money during the period which the same could have been made available to him. However, having regard to the fact, there is no accepted principle of payment of interest from the date of the filing of the application till the date of award and however, the Tribunal though not granted any interest, at the same time, have not given any reason why the interest has been denied or not given to the appellant. There is no mention any latches on the part of the appellant to deny the interest from the date of the filing of the petition for which reliance has been placed on non reported decision of this Court vide order dated 13.04.2010 passed in M.A. No. 337 of 2008 Devendra Kumar Singh Vs. Union of India & Ors. However, in my view the Tribunal ought to have granted any interest whatsoever or if he denied he ought to have given reasons for not granting the interest and hence though it is discretion of the Tribunal to grant interest but the discretion must be 7 exercised judiciously and not arbitrarily. However, I do not find any reason why the Tribunal has not granted interest and hence I hold that the appellant is entitled to interest @ 6% per annum from the date of the filing to the date of the receipt of the compensation amount and hence the appeal is allowed. Kundan (Gopal Prasad, J.)