IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 AS.No. 305 of 1995() -------------------- OS.897/1993 of FIRST ADDITIONAL PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT: PLAINTIFF -------------------------- M/S.PRABHUS THEATRE NORTH PARUR REPRESENTED BY ITS PARTNER S.R. ARAVINDAKSHA PRABHU BY ADV. SRI.S.R.DAYANANDA PRABHU RESPONDENT(S): DEFENDANTS ----------------------------------- 1. M/S.CHARANKATTU RELEASE, CONVENT ROAD, ERNAKULAM-35 REPRESENTED BY ITS MANAGER. 2. C.K. ASOKAN S/O.C.V.KUNJUKUTTAN CHARANKATTU HOUSE, KANICHUKULAGARA P.O. ALAPUZHA DISTRICT. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO. 305 OF 1995 =========================== Dated this the 27th day of March,2009 JUDGMENT Plaintiff in O.S.897/1993 on the file of Sub Court, Ernakulam is the appellant. First defendant is the proprietory concern and second respondent its proprietor. The suit was filed for realisation of Rs.41,461.55 with interest at 18% from the date of the suit till the date of realisation contending that respondents produced the film 'Vakkil Vasudevan' and for screening the said film respondents accepted Rs.50,000/- from the appellant on 29.1.1993 and a confirmation slip was issued on the same day and as per the terms of the contract respondents have to adjust the deposit towards their share and expenses for publicity and the balance shall be refundable to the exhibitor at the end of the screening by a cheque. It is A.S.305//1995 2 contended that appellant exhibited the film from 14.5.1993 to 19.5.1993 and Rs.13,485.45 was due to the share and cost of publicity, to respondents and balance of Rs.36,544.55 is to be refunded and respondents are liable to pay 18% interest on that amount. 2. Respondents filed a joint written statement admitting the plaint claim. It was also contended that subsequent to the filing of the original suit more amount was realised by the appellant from respondents by adjusting the share of exhibiting the film in their theatre and accordingly the balance due is only Rs.22,649.30 and there was an understanding not to realise interest from the respondents. It was also prayed that half the court fee and Advocate fee be refunded to the appellant. 3. Proceeding paper of the trial court shows that after receiving the written statement issues were framed on 24.8.1994 (though issues are not A.S.305//1995 3 seen among the records) and it was posted for steps to 7.9.1994. It shows that on 7.9.1994 it was found that respondents have admitted the claim and therefore suit was posted to 23.9.1994. The proceeding paper shows that on 23.91994 it was recorded as follows:- “Suit can be decreed with the admitted amount in the written statement. Suit posted for judgment to 26.9.94.” On 26.9.1994 a judgment was passed which reads as follows:- “Defendant filed written statement admitting the claim for Rs.22,649.30 without interest. Plaintiff is agreeable for the same. Hence a decree is passed directing the defendants to pay an amount of Rs.22,649.30 without A.S.305//1995 4 interest and costs within one month failing which the plaintiff is allowed to realise the same from the defendants and their assets.” The judgment is challenged in this appeal contending that appellant was not agreeable to forego the interest and therefore the learned Sub Judge was not justified in not granting a decree for realisation of the interest as well as costs. 4. Though notice was served on the respondents, they did not appear. 5.Learned counsel appearing for the appellant was heard. 6. Learned counsel pointed out that appellant never agreed to forego the interest and what was submitted before the court was only that as subsequent payment was made respondents are liable to pay only Rs.22,649.30 and therefore the suit could be decreed for that amount with interest and A.S.305//1995 5 it was not without interest. When the proceeding paper does not show that there was any settlement between the parties and the appellants never agreed to forego the interest, learned Sub Judge was not justified in refusing to grant a decree for realisation of the interest for the decreed amount as well as the cost. The appellant is entitled to a decree for interest as well as cost. 7. The question then is what is the rate of interest payable. In the plaint it is contended that respondents are liable to pay interest at 18% per annum, as per the terms of the contract and the suit transaction is a commercial one and therefore the appellant is entitled to interest at that rate. The confirmation slip produced by the appellant, which was issued by the respondents on receipt of Rs.50,000/- does not provide for payment of interest at 18%. It also does not provide that interest is not payable. Therefore appellant is entitled to get interest but at the rate of 6% A.S.305//1995 6 per annum from the date of the suit and also cost, at confession scale. Appeal is allowed. The decree and judgment in O.S.897/1993 on the file of Sub Court, Ernakulam is modified providing that appellant is entitled to interest at 6% per annum on Rs.22,649.30, from 22.10.1993, the date of institution of the suit till realisation . Respondents are also liable to pay cost in the suit at confession scale. Appellant is also entitled to cost in the appeal. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006