IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 OP.No. 15857 of 2001(K) ----------------------- PETITIONER(S): --------------- M/S. ELRAYS ELECTRONICS PVT. LTD., 5/1070, CARBORANDOM ROAD, SOUTH KALAMASSERRY, ERNAKULAM, REP. OBY ITS MANAGING DIRECTOR C.A. ABRAHAM. BY ADV. SRI.P.V.BABY RESPONDENT(S): --------------- 1. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, GANDHI NAGAR, COCHIN-02. 2. THE GENERAL MANAGER, KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, TRIVANDRUM. 3. THE DISTRICT MANAGER, KERALA FINANCIAL CORPORATION, ERNAKULAM. 4. THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM. ADV. SRI.V.B.UNNIRAJ FOR R2&3 SRI.V.P.SANTHOSH KUMAR SRI.M.M.SAYED MUHAMMED, SC, KFC FOR R2 & 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 15857/2001. ---------------------------------------------------------------- EXT.P1 COPY OF COMPLAINT DT. 10-1-1998. EXT.P2 OBJECTION FILED BY R1. EXT.P3 OBJECTION DST. 30-4-1998. EXT.P4 REJOINDER DT. 22-5-1998. EXT.P5 AFFIDAVIT DT. 5-1-1999. EXT.P6 ORDER IN O.P.44/98 DST. 8-3-1999. EXT.P7 NOTICE DT. 22-9-1999. EXT.P8 NOTICE DT. 20-12-1999. EXT.P9 EXECUTION PETITION DT. 4-2-2000. EXT.P10 OBJECTION DT. 18-7-2000. EXT.P11 OBJECTION DT. 6-6-2000. EXT.P12 ORDER DST. 13-12-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 15857 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 24th March, 2009. J U D G M E N T The petitioner was a SSI unit. They applied for loan from the Kerala Financial Corporation. As an SSI unit, they were entitled to margin money loan from the 1st respondent. The same was sanctioned and the 1st respondent forwarded the same to respondents 2 and 3. As per the agreement, respondents 2 and 3 were liable to disburse the margin money of Rs. 1 lakh to the petitioner within 90 days, failing which they were liable to pay interest at 11% on the same amount to the petitioner. The petitioner did not avail of the loan. Respondents 2 and 3 did not pay the margin money either to the petitioner or to the 1st respondent. Subsequently, the petitioner wanted the 1st respondent to return the security documents submitted by the petitioner for availing of the margin money loan. The 1st respondent insisted on payment of an amount of Rs.42,000/- as interest on the said amount. Since the petitioner was in need of the security documents urgently, the petitioner paid the amount under protest on 2-6-1997. Thereafter, the petitioner filed O.P.No. 44/1998 before the Consumer Disputes Redressal Forum, the 4th respondent herein, against respondents 1 to 3 for refund of the said amount of Rs.42,000/- with interest at 18% p.a. from 2-6-1997. That culminated in Ext. P6 order the operative portion of which reads thus: “In the result, the complaint is allowed as follows: The opposite parties 2 and 3 are directed to pay interest at the rate of 12% p.a. on Rs.1,00,000/- from 28-5-94 till payment and costs of Rs.500/- to the complainant. The aforesaid payment shall be made within a period of one month from the date of receipt of a copy of this order.” Thereafter, respondents 2 and 3 paid to the petitioner an amount of Rs.35,547/-. The petitioner filed E.P.No. 54/2000 before the CDRF, Ernakulam claiming a balance amount of Rs.32,953/- also. In that E.P, Ext. P12 order was passed holding thus: O.P. No. 15857/2001 -: 2 :- “Heard both sides. The learned counsel for the Decree Holder submitted that from the direction to pay interest “from 28- 5-94 till payment” in the decretal portion of the order in the original petition the only inference that could be drawn is that interest has to be paid till payment is made to the complainant and therefore the Judgment Debtors 2 and 3 have not only to pay interest during the period in which the amount was kept by them but also for the period during which the amount was returned with the first opposite party, and, they can have claimed contribution from the first opposite party. But the learned counsel for the opposite parties, Judgment Debtors 2 and 3 argued that the aforesaid words “from 28-5-94 till payment” in the decretal portion of the order is a direction given to Judgment Debtors 2 and 3 and therefore, the word “payment” could only relate to the payment made by Judgment Debtors 2 and 3, and since such payment was made by Judgment Debtors 2 and 3, and since such payment was made by Judgment Debtors 2 and 3 to the first Judgment Debtor on 29-4-97, they are not liable to pay any interest on that amount which was kept by the first J.D. for reasons best known to them. We find considerable force in this argument. Before we proceed further, we have to own up the omission of our part in not specifically mentioning in the decretal portion, the period during which interest was to be paid by the Judgment Debtor 2 and 3 to the complainant. But, a proper and meaningful interpretation of the decretal portion of the order would show that the word 'payment' is in respect of the payment made by the J.D. 2 and 3. Such payment was made to the first J.D. on 29-4-97 is not disputed. So it is not just and proper to direct J.D. 2 and 3 to pay interest on the aforesaid Rs.1,00,000/- for the period after 29-4-97. It was really without considering this aspect of the matter that this Forum overruled the objections filed by the J.D. 2 and 3 to the E.P. and directed to issue the show cause notice under Sec. 27 of the C.P. Act. That was a bona fide omission on the part of this Forum. Though strictly speaking there is no scope for considering these aspects after the show cause notice is issued, since this Forum has also to own up the responsibility for creating such a situation in view of the well known principles actus curiae neminea gravabit, we think that no further proceedings shall be continued against J.D. 2 and 3. Of course, the learned counsel for the decree holders submitted that since the payment of that Rs. 1,00,000/- was not made by the first opposite party, even after 29-4-97 the Decree Holder was losing interest on the said amount, and therefore, the first opposite party should be directed to pay interest on the said amount to the O.P. No. 15857/2001 -: 3 :- complainant. We are not able to allow this request. No decree has been passed against the first opposite party for reasons already given in the order disposing of the complaint. On the execution side this Forum cannot travel beyond the decree. Hence the complainant if really is aggrieved in that respect has to set the law in motion before the appropriate authority. As stated above the direction of this Forum to pay interest on Rs.1,00,000/- for the period mentioned in the order and costs of Rs.500/- has already been complied with by J.D. 2 and 3 and therefore there is no further scope for any action against them. In the result, the E.P is dismissed with the above said observations.” The petitioner is challenging Ext. P12 order. According to the petitioner, Ext. P6 order having become final, the CDRF could not have reviewed the same in execution proceedings . 2. I have considered the contentions of the petitioner. 3. As is clear from Ext. P1 complaint filed by the petitioner before the Forum, their prayer was for payment of a sum of Rs.42,000/- with interest at the rate of 18% p.a. from 2-6-1997. What has been granted is interest at the rate of 12% p.a. on Rs.1,00,000/- from 28-5-1994 till payment. Obviously, the Forum had misdirected itself in granting a different relief to the petitioner. In so far as the margin money was retained by respondents 2 and 3 without payment either to the petitioner or the 1st respondent, respondents 2 and 3 are liable to pay interest on the amount to the 1st respondent. Taking into consideration the facts and circumstances of the case, I dispose of this original petition with the following directions: Respondents 2 and 3 shall pay to the petitioner a sum of Rs.6455/- (R. 42,000 – Rs.35545) with 12% interest from 8-3-1999 (date of order of the CDRF) till date of payment. The amount shall be O.P. No. 15857/2001 -: 4 :- paid within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/