IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI Monday, 6th JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 13445 of 2009(R) -------------------------- OP.1406/2004 of FAMILY COURT,ERNAKULAM .................... PETITIONERS: --------------- 1. ELSY, D/O.BABY, AGED 47 YEARS, PULEYASSERI HOUSE, PARATHARAPARAMBIL, PALARIVATTOM, EDAPPALLY P.O., COCHIN-24. 2. PRINCY, AGED 17, D/O.PONNAN, -DO- REPRESENTED BY IST PETITIONER MOTHER BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT: --------------- PONNAN, S/O.LATE VELAYUDHAN, AGED 58 YEARS, PULEYASSERI HOUSE, PARATHARAPARAMBIL, PALARIVATTOM, EDAPPALLY P.O., COCHIN-24. ADV. SRI.R.DIVAKARAN FOR R SRI.VINUCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.13445/2009 APPENDIX: PETITIONERS' EXTS: EXT.P1: A TRUE COPY OF THE COMPROMISE AGREEMENT IN O.P.NO.1406/2004 & 541/2004 DATED 20-11-2007 BEFORE THE FAMIL6Y COURT AT ERNAKULAM. EXT.P2: A TRUE COPY OF THE I.A.NO.2106/2008 IN O.P.NO.1538/2007 FILED BEFORE THE FAMILY COURT, ERNAKULAM. EXT.P3: A TYPED COPY OF THE ORDER IN EP 29/08 IN O.P.11406/2004 DATED 7/11/2008 BEFORE THE FAMILY COURT AT ERNAKULAM. EXT.P4: A TRUE COPY OF THE REVIEW PETITION NO. 119/08 IN EP 29/2008 IN OP 1406/2004 DATED 21-11-2008 BEFORE THE FAMILY COURT AT ERNAKULAM. EXT.P5: A TRUE COPY OF THE WPC.33969/08 DATED 15-11-2008 BEFORE THIS COURT FILED BY THE RESPONDENT. EXT.P6: A CERTIFIED COPY OF THE RODER OF THIS COURT IN WPC.33969/2008 DATED 15-12-2008. EXT.P7: A TRUE COPY OF THE ORDER IN R.P.119/2008 IN EP 29/2008 IN OP 1406/2004 DATED 2-5-2009 BEFORE THE FAMILY COURT, ERNAKULAM. TRUE COPY P.S. TO JUDGE ks. R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(C)NO.13445 OF 2009 ============================ DATED THIS THE 6TH DAY OF JULY 2009 JUDGMENT Basant,J. The petitioners are wife and child respectively of the respondent. There was acrimony in the matrimony and two O.Ps.were filed, one for divorce and the other for maintenance and return of ornaments, etc. Before the Family Court, the cases were settled. The parties accepted that a property belonging to the respondent can be partitioned into three shares. One was to be allotted to the wife, the other for the child and the third share was to be allotted to the husband-respondent herein. There was a further agreement that one-third share of the husband shall be assigned in the name of the daughter, the 2nd petitioner herein on condition that the mother-the 1st petitioner pays an amount of Rupees four lakhs within six months of the date of the agreement, i.e.20-11-2007. A joint application for divorce under WPC.13445/2009 -2- Section 10-A of the Indian Divorce Act was also filed as per the agreement before the Family Court. But the necessary steps were not taken by 20-5-2008 and the documents were not executed. According to the petitioners, there was no fault whatsoever on their part. As early as on 17-5-2008 – the dead-line was 20-5-2008, draft of the document was produced for approval. That draft was not acceptable to the respondent as the assignee was shown to be not the child but the wife-the 1st petitioner herein. Application under Section 10-A of the Indian Divorce Act was also not pursued and happened to be dismissed. On 24-5-2008 execution petition was filed by the wife. The property in question was attached. Before the court below, in the execution petition both sides made mutual recriminations as to why the decree could not be complied with. What is crucially relevant is that both sides were then and are now willing to abide by the terms of the decree. According to the petitioners, they had the requisite cash of Rupees four lakhs ready with them from 17-5-2008. They deposited that amount before the court below only on 26-9-2008 by a Demand Draft dated 26-9-2008. WPC.13445/2009 -3- The court below has allowed the execution petition subject to conditions. The respondent was directed to execute the document. In addition to the amount of Rupees four lakhs deposited on 26-9-2008, the petitioners were directed to pay interest at the rate of 12% per annum from 20-5-2008 to 26-9-2008. 2. The petitioners claim to be aggrieved by the order. What is the grievance? The short grievance urged is that the direction to pay interest at the rate of 12% per annum from 20-5-2008 to 26-9-2008 is unjust and unfair. The petitioners were willing even from 17-5-2008 to comply with the decree. They had expressed their willingness in unambiguous terms by the admitted handing over of the draft deed of assignment . For the delay thereafter, the petitioners are not responsible at all. 3. The learned counsel for the respondent, on the contrary, contends that the petitioners were only delaying the payment unnecessarily. When the draft document was produced, they knew fully well that the same was not in terms of the compromise decree. The assignment was to be taken in the WPC.13445/2009 -4- name of the second petitioner-daughter and not the 1st petitioner-wife. This was only a ploy to delay and protract the proceedings. By doing so, the petitioners have enjoyed retention of the huge amount of Rupees four lakhs with them from 20-5-2008 to 26-9-2008. Thereby the respondent has been deprived of the advantage of having the money from 20-5-2008. In these circumstances, in any view of the matter, this is not a fit case where the extraordinary constitutional jurisdiction under Article 226 of the Constitution of India can or ought to be invoked to interfere with the impugned order. The impugned order may be upheld. The petitioners may be directed to deposit the amount within a stipulated time and produce the original document to be executed on stamp paper within a stipulated period. The respondent may be permitted to execute the document and immediately get release of the amount of Rupees four lakhs which is now lying in idle deposit before the court below. 4. We have considered all relevant aspects. We find merit only in one contention. Both parties appear to be responsible for WPC.13445/2009 -5- the delay. The petitioners have enjoyed the benefit by retaining the amount from 20-5-2008 to 26.9.2008. The respondent has been denied the benefit or advantage of the release of the cash to him during this period. It is only in the interests of justice to direct the petitioners, in these circumstances, to pay the interest. But we find merit in the contention that award of interest at the rate of 12% per annum was not necessary. It is not penal interest but only just interest which deserves to be directed to be paid. To that extent alone this writ petition can succeed. It is further pointed out that deposit was made not on 24.10.2008 as held by the Court below, but on 26.9.2008. That error can also be corrected. The learned counsel for the respondent accepts that this amount was paid by demand draft on 26.9.2008. 5. In the result this writ petition is allowed in part. The following directions are issued in modification of the impugned order. 1) The petitioners shall within a period of three weeks from this date deposit before the court below interest at the rate of 8% per annum on the WPC.13445/2009 -6- amount of Rupees four lakhs from 20-5-2008 to 26-9-2008, i.e. Rs11,310/- (rounded of). 2) The petitioners shall produce before the Family Court the deed of assignment in the name of the 2nd petitioner. 3) On production of the deed, the respondent shall forthwith execute the same in accordance with the further direction that may be issued by the Family Court and the same shall be registered also. 4) On execution and registration of the document, the Family Court shall direct release of the entire amount of Rupees four lakhs and the further interest deposited to the respondent. Sd/- R. BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY