1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 201/2006 Government of Goa, through Commissioner and Secretary (Finance), Finance (Budget) Department, Secretariat, Panaji-Goa. ........ Appellants. V/s. 1. The Goa Urban Co-operative Bank Limited, having their Registered Office at Dr. Atmaram Borkar Road, Panaji, Goa 403 001. 2. State Bank of India, through Branch Manager, Panaji Treasury Branch, 18th June Road, P.B. No.13, Panaji-Goa 403 001. 3. Reserve Bank of India, through Manager, Public Debt Office, P.B.No.901, Bombay 400 001. ........ Respondents. Mr. M. Salkar, Addl. Govt. Advocate for appellants. Mr. R. G. Ramani, Advocate for respondent No.1 Mr. M. S. Sonak, Advocate for respondent No.2. 2 CORAM :- D.G. KARNIK & F.M. REIS, JJ. Date :- 26th October, 2010. ORAL J U D G M E N T : (Per D.G. KARNIK, J.) 1. This appeal is directed against the judgment and decree dated 12th January, 2006, passed by the 1st Ad-hoc Additional District Judge, Panaji. 2. Heard learned Additional Government Advocate for the appellant and learned Counsel for respondents Nos. 1 and 2. None present for respondent No.3 – Reserve Bank of India. 3. Appellant is the original defendant No.1, respondent No.1 is the original plaintiff and respondents No.2 and 3 are the original defendants No.2 and 3 respectively. The appellant-State of Goa, being desirous of raising a loan of Rs.9.5 crores, appointed respondent No.3- the Reserve Bank of India (For short the RBI) as its manager to the issue. A press communique was issued by the State of Goa about its decision to float the issue called as “Goa State Development Loan, 2003”, carrying 13.50% interest. The appellant and the respondent 3 No.3 appointed designated branches of the State Bank of India at Panaji and Margao as their agent where the applications for the loan along with the money could be deposited. In addition to the designated branches of the State Bank of India (For short the SBI) the applications could also be deposited in the designated Branches of the RBI upto to the close of banking hours on 17th May, 1993. In case of over subscription, a partial allotment was to be made respondent No.1 applied for the allotment of the entire loan of Rs.9.5 crores by submitting an application along with money at the designated Treasury Branch of State Bank of India, at Panaji. The Treasury Branch was required to inform the RBI about the receipt of the application by express telegram in the evening of 17th May, 1993 itself. However, it informed the RBI about the application and receipt of the money on the next day i.e. on 18th May, 1993 by telex. In the meanwhile, RBI made the allotment of the loan of Rs.9.5 crores to a third person on 17th May, 1993 itself and, therefore, the application made by respondent No.1 could not be considered by the RBI at all. It appears that thereafter, the Treasury Branch of SBI transferred the money received by it from respondent No.1 to its Nagpur Branch on 21st May, 1993 and the Nagpur Branch in turn credited the amount to the account of the 4 appellant i.e. the State of Goa on 24th May, 1993. Ultimately, the money was returned to respondent No.1 on 9th July, 1993, without any interest. Respondent No.1 thereafter filed a suit bearing Special Civil Suit No.28/1995/A(old) renumbered as Civil Suit No.111/2004 for damages and in the alternative for interest for the period from 17th May, 1993 till 7th July, 1993 (53 days). The appellant as well as respondents No.2 and 3 resisted the suit by filing separate written statements. Respondent No.1 examined two witnesses (PW.1 and PW.2). The appellant-State of Goa did not examine any witness. However, the respondent No.2 SBI examined one witless (DW.1), respondent No.3 RBI examined one witness (DW.2). Parties also produced on record the press communique issued by the State of Goa (Exhibit 19), along with the notification and the terms and conditions of the loan (Exhibit-20 colly). Parties also produced on record copy of the loan application submitted by respondent No.1 (Exhibit-21), as also the correspondence between the parties (Exhibit-22 to Exhibit-37). 4. On considering the pleadings as well as the evidence adduced by the parties, it is clear that there is no dispute between the parties that respondent No.1 had made an application for the loan 5 within the time prescribed i.e. on 17th May, 1993 and had also paid the sum of Rs.9.5 crores to the respondent No.2-SBI along with the application. It is also not disputed that the respondent No.2 SBI was required to communicate to the RBI of the receipt of the application by express telegram to be dispatched on 17th May, 1993 itself, but it did not do so and instead communicated the same to the RBI on the next day i.e. on 18th May, 1993 by a telex. In the meanwhile, the RBI accepted the application received from a third party for the entire amount of loan of Rs.9.5 crores and allotted to the third party. As the loan was fully subscribed before the receipt of the intimation of the application submitted by the applicant to the respondent No.2-SBI, no allotment of the loan could be made to the respondent No.1. The real dispute that arises between the parties is on account of the fact that the amount paid by the appellant along with the application was not refunded to respondent No.1 immediately, but was re-paid only after 53 days. Though respondent No.1 had made a claim for damages for negligence on the part of respondent No.2-SBI in not sending the communication of the application to the RBI in time, the alternative claim of interest for the delayed refund of money was seriously pressed before the trial court. Though respondent No.1 had claimed interest at 6 the rate of 18% per annum for the entire period of delay of 53 days, the trial court held that respondent No.1 was entitled to interest at the rate of 13.5% per annum (the rate at which interest was payable on the loan) and that too for a period of 46 days only, instead of 53 days. The trial court held that the appellant which had floated the loan was liable to pay the interest. So far as respondent No.2 was concerned, the trial court held that the real beneficiary of the amount was the appellant inasmuch as the SBI had transferred the money to the account of the appellant on 24th May, 1993 and, therefore, the SBI was not liable to pay any interest. Accordingly, the trial court passed a decree in the sum of Rs.16,16,301.40 equivalent to the amount of interest at the rate of 13.5% for 46 days i.e. from 23rd May, 1991 till date of refund against the appellant and dismissed the suit against respondents Nos.2 and 3. Aggrieved appellant is in appeal. Respondent No.1 has not filed any cross objection. 5. Learned Addl. Govt. Advocate appearing for the appellant submitted that on the facts as admitted and as proved before the trial court it was clear that the respondent No.2 SBI was negligent inasmuch as it failed to communicate the receipt of the application along with the 7 application money to the respondent No.3- RBI in the manner and within the time stipulated in terms of the loan. Instead of communicating the receipt of the loan application along with the money by express telegram on 17th May, 1993 itself, it communicated the receipt of the application along with the application money to respondent No.3-RBI on the next date i.e. on 18th May, 1993. This was beyond the scope and authority of respondent No.2. For the negligence of respondent No.2, the appellant State cannot be held to be liable. In the alternative he submitted that the decree should have been passed against the respondent No. 2-SBI solely or atleast jointly with the appellant. 6. The questions that arises for our consideration in this appeal are: (i) whether the appellant-State of Goa can be held responsible for the negligence and lapse on the part of the respondent No.2-SBI in not communicating to the RBI the receipt of the loan application with the application money from respondent No.1 in time and the manner prescribed ? (ii) whether the respondent No. 2 can be held liable jointly 8 and/or severally with the appellant ? 7. The press communique at Exhibit 19 and the notification along with the terms and conditions of the loan at Exhibit 20 disclose that the State of Goa had floated a loan of Rs.9.50 crores under the head “13.50 per cent Goa State Development Loan, 2003”. The loan was for a period of 10 years and was to carry interest at the rate of 13.5% per annum. The RBI was to act as the manager for the issue. The loan applications were to be made to the designated branches of the RBI and the designated branches of the SBI. On 17th May, 1993 before the close of banking hours, the applications were to be accepted with the amount applied for the issue of loan. If the application was made at a designated branch of the SBI, it was required to communicate the receipt of the application with money to the RBI at Fort, Bombay on the same day i.e. on 17th May, 1993 itself by an express telegram. The RBI then was to consider all the applications received and make allotment within the next 5 days. Clause 7 of the notification of loan provided that if the total subscriptions exceed the sum of Rs.9.50 crores, partial allotment would be made to the subscribers and if partial allotment was made, proportionate refund 9 would be made as soon as possible after allotment and no interest would be paid on the amount so refunded. From the contents of the brochure, it appears that the words “refund will be made as soon as possible” contemplated that the refund would made within 7 days. Though the refund was made after 53 days, as per the terms in the brochure the refund was to be made as soon as possible i.e. within 7 days and it was not to carry any interest. We are, therefore, of the view that the trial court has rightly not awarded interest for 7 days and has awarded interest only for 46 days. We are further of the view that as per the terms of the loan, the refund was to be made within 7 days and it was not made for 53 days, the respondent No.1 was entitled to be compensated for that delay of the refund beyond the period of 7 days. Respondent No.1 was, therefore, entitled to the interest. The interest has been awarded at the rate of 13.5% per annum which is the rate of interest applicable to the loan. No arguments were advanced before us on the quantum of interest or the rate of interest and we see no reason to interfere in the rate of interest of 13.5% awarded by the trial court. 8. One thing is clear from the evidence on record that there was a clear lapse on the part of the SBI in not sending the intimation 10 about the receipt of the application and the application money to the RBI in the manner and within the time it was required to do as per the terms of its appointment. This is clearly an act of negligence on the part of the SBI. 9. From the press communique as well as from the terms of the loan it is clear that the RBI was to act as manager for the loan. The RBI in a sense was, an agent of the appellant, the State of Goa, for the purpose of managing the issue of the loan. Designated branches of the SBI which were to receive the applications for the loan, were also to act as agents of the appellant State of Goa and/or sub-agents of the RBI which was the manager to the issue. In our view, the principal is responsible for the negligence of the agent during the course of his employment as an agent. The liability of the principal for the negligence and/or wrongful act of the agent is on the ground that the principal is a person who has selected the agent and the principal having delegated the performance of certain class of acts to the agent, the principal should bear the risk. All that is necessary for holding the principal liable is that the acts should have been committed by the agent in the course of his employment. Although the principal did not 11 authorise the agent to act negligently, the principal cannot escape the liability for the negligence of the agent. 10. In Kailas Sizing Works v/s. Municipality of Bhivandi and Nizampur, AIR 1969 Bom. 127, a Division Bench of this court in para 47 has held : “47. The defendants contended that they had engaged qualified engineers and experienced contractors and, therefore, they could not be guilty of negligence. With regard to the contractors however much experienced, they would merely carry out the work according to the plans prepared by the Municipality. If the engineers are negligent, the defendants would be liable. The liability of principal for the wrongful act of his agent rests on the grounds that the principal is a person who has selected the agent and that the principal having delegated the performance of a certain class of acts to the agents, the principal should bear the risk. All that is necessary is that the act should have been committed by the agent in the course of his employment, although the principal did not authorise, or justify, or participate in the act or even if he forbade it or disapproved of it. The liability of 12 the principal for the wrongs of his agent is a joint and several liability with the agent. The injured party may sue either or both of them.” We respectfully agree with the observations quoted hereinabvoe. 11. The contention of the learned Addl. Govt. Advocate for the appellant that the State of Goa cannot be responsible for the act of negligence of the SBI, therefore, cannot be accepted. In our view the appellant is responsible for the loss suffered by the respondent No.1. The application of the respondent No. 2 for subscription to the loan was rejected on account of the negligence of the SBI in not sending the intimation of the application and receipt of the money to the RBI on time and in a manner prescribed by the terms of the loan. The respondent no. 1 is entitled to the damages and in the alternative alternative respondent No.1 is entitled to interest in lieu of damages. In the facts and circumstances, the trial court has awarded interest equivalent to the interest which the respondent No.1 would have received on its loan application had it been successful and had it been allotted the loan. The measure of damages awarded by the court below, in our view is appropriate. In any event, no arguments were addressed to us on the quantum of damages and/or award of interest in 13 lieu of the damages. 12. Learned Additional Government, however, submitted that the trial court erred in passing a decree only against the appellant. The decree should have been joint and several i.e. against the appellant as well as the respondent No.2, the SBI-agent. He submitted that in respect of the act of negligence the principal as well as the agent must be held to be jointly and severally liable. The liability of the principal for the negligence of an agent is, in a sense, a vicarious liability. The primary liability would be that of an agent who is negligent and the principal's liability would be a vicarious liability for the acts of the agent, on the principle that the principal had authorised the agent to act on its behalf. Consequently, we are of the view that the respondent No.2 SBI ought not to have been exonerated from the liability. It was the respondent No.2 which was guilty of the negligence. It, therefore, could not have escaped the liability. 13. Mr. Sonak, learned Counsel appearing for the respondent No.2 SBI, however, submitted that the suit filed by respondent No.1 has been dismissed qua respondent No.2-SBI and in the absence of any 14 appeal or cross-objections by the respondent no. 1 (original plaintiff) no decree can be passed in its favour against the respondent no. 2. The respondent No.1 (original plaintiff) is not aggrieved by the decree inasmuch as it has not even filed any cross objection against the dismissal of the suit, nor has it filed any appeal. In the absence of any appeal or cross objections at the instance of the respondent No.1 (plaintiff), the decree of dismissal of the suit against the respondent No.2 cannot be modified, so as to make respondent No.2 liable, allowing the appeal. Per contra, learned Addl. Govt. Advocate invited our attention to ground XII of the appeal memo in which the appellant has specifically challenged the passing of the decree against it and exonerating the respondent No.2 SBI. It is no doubt true that the appellant has not claimed any contribution from respondent No.2 but has claimed that it is the respondent No.2 alone is responsible. The Government Advocate however submitted that in any event if respondent No.2 cannot be made solely liable, and atleast the decree should have been joint and several against the appellant and respondent No.2. He further submitted that under Order 41, Rule 33 of the Code of Civil Procedure (For short the Code) the appellate court has ample power to modify a decree and pass such a decree which 15 ought to have been passed by the trial court. 14. Order 41, Rule 33 of the Code provides that the appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. In Banarasi and others vs. Ram Phal, (2003) 9 SCC 606, the Supreme Court had an occasion to consider the effect of Order 41, Rule 33 of the Code. The Supreme Court held that Order 41, Rule 33 confers a power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed 16 of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. Of course, the Supreme Court has cautioned that wider the power, the higher the need for caution and care while exercising the power and in that regard has referred to its earlier decisions in the case of Panna Lal vs. State of Bombay, AIR 1963 SC 1516; Harihar Prasad Singh vs. Balmiki Prasad Singh, (1975) 1 SCC 212; and Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874. While considering the provisions of Order 41, Rule 33 of the Code we consider it appropriate to refer to the statutory illustration given below Order 41, Rule 33, which reads : “A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y.” The illustration makes it clear that when two persons are sued and a decree is passed only against one and the 17 suit is dismissed against the other, in an appeal filed by the defendant against whom the decree has been passed while reversing the decree against him, the appellate court is entitled to pass a decree against the other defendant against whom the suit was originally dismissed by the trial court. In an appeal at the instance of a defendant against whom the decree is passed the appellate court is entitled to pass a decree against the other defendant who has been exonerated by the trial court, though the plaintiff has not filed an appeal. This position is clear from the illustration. 15. We have already indicated that the decree ought to have been passed against both, the appellant as well as the respondent No.2 SBI, as it was negligent in performance of its duty. We are not called upon in this appeal to consider what would be the effect of a joint and several decree and whether the appellant would be entitled to a contribution from the respondent No.2-SBI. This issue has not been raised in the appeal memo and, therefore, it is unnecessary to go into the question whether the joint and several decree against the appellant and respondent No.2 would enable the appellant to claim contribution and/or indemnify from the respondent No.2. We are only of the view 18 that the decree ought to have been passed against both, the appellant as well as the respondent No.2 and in an appeal at the instance of the appellant we are empowered to pass a decree even against respondent No.2. 16. Consequently, we modify the decree passed by the trial court and direct that the appellant, the State of Goa, and the respondent No.2, the State Bank of India i.e. the original defendants No.1 and 2 shall jointly and severally pay to the respondent No.1 (original plaintiff) the amount of Rs.16,16,301-40 together with interest at the rate of 6% per annum from the date of the suit till payment and all costs of the suit. D.G. KARNIK, J. F.M. REIS, J. ssm.