1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Civil Application No.2940 of 2007 IN Writ Petition No.5494 of 2004 Shri Govind Vyankatesh Amberkar, since lunatic through his L.R. wife Smt.Meena Amberkar. .. .. Applicant v/s. State of Maharashtra & ors. .. Respondents Mr.Ramdas P. Sabban for applicant. Mrs.M.P. Thakur, AGP for State. ----- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Dated : 31st January 2008 P.C. : (Per Roshan Dalvi, J.) 1.The applicant, who was the petitioner in the above writ petition, was a mentally disabled person. He served as the Jailor Class-II in the Prisons Department of the Government of Maharashtra during various periods with various breaks in between on the ground of mental illness. The applicant had sought to resign and later withdraw his resignation. He claims to have served in the aforesaid post until July 1986. He applied for pension under Rule 23 of the Maharashtra 2 Civil Services (Pension) Rules, 1982 (the Rules) claiming sanction of pension in special circumstances. He not having been granted any pension, challenged the refusal in the writ petition and was granted the necessary pension amount contemplated under the aforesaid Rule 23 on the basis of he having completed ten years of service without any break under the order dated 15.7.2004 of this court. The respondents were directed to release the pension amount to the applicant within a period of four weeks from the date of the order. 2.The said order did not grant any interest upon delayed payment of the pension amount directed to be paid. The applicant has, therefore, taken out this civil application for payment of interest under Rule 129-B of the Rules. 3.The applicant claims interest from 22nd July 1986 to 31st August 2006 calculated in accordance with Rule 129-B. The relevant portion of Rule 129-B reads thus:- “ 129-B. Interest on delayed payment of Pension. - (1) If the payment of pension has been authorised after six months from the date when its payment became due and it is clearly established that the delay in payment was attributable to administrative lapse, interest at the rate of 10 per cent per annum in 3 respect of the period beyond six months shall be paid on the amount of pension.” 4. Pension necessarily becomes due at the time of retirement of a Government servant. It is sent for authorisation to the Government. The payment of pension is required to be authorised within six months and if not so done and if it is established that the delay is attributable to administrative lapse, interest at the statutory rate of 10 per cent per annum is to be paid for a period beyond six months when pension became due but was not paid. 5. The applicant contends that the pension amount became due on 22nd July 1986. If that was so, the applicant should have agitated the claim of interest also in the aforesaid petition. A reading of the order of the Division Bench shows that no interest has been granted. That was the matter directly and substantively in issue between the applicant and the respondents herein litigating in the aforesaid writ petition and consequently, is barred by the principle of constructive res judicata under Section 11 of the Code of Civil Procedure, 1908. 6.The applicant is taken to have agitated the question of interest which follows the principal amount. 4 Section 34 of the Code of Civil Procedure, which deals with the payment of interest, reads thus:- “ 34. Interest – (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.” 7.Since interest follows the principal amount, the applicant should have agitated its payment in the aforesaid writ petition, if he pressed that claim. The applicant is taken to have agitated that claim in the writ petition which was contested. Hence, the court would have granted interest at the rate it deemed reasonable on the principal amount adjudged for the period from the date of the applicant' s resignation, retirement till the date of the order. That having not been done, the applicant's claim is barred under Section 11 of the Civil Procedure Code. 5 8.Further interest, if any, is grantable under the provision of Section 34(2) of the Civil Procedure Code. Section 34(2) reads thus: “(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.” 9. Under Clause (2) of Section 34 of the Code of Civil Procedure, if the decree/judgment/order does not grant further interest, the court is deemed to have refused it. A separate suit is not contemplated. In this case, the order of this court does not grant any further interest. The court must be taken to have refused it. By an application simpliciter after the disposal of the writ petition, a claim for interest on delayed payment, which is not even shown to be due to an administrative lapse, does not lie. 10. The order for payment of pension, without interest was passed on 15.7.2004. The respondents paid the amount of pension to the applicant on 13.1.2006 and 11.6.2006. The applicant has claimed interest on the delayed payment. The claim is made from July 1986 when the applicant claims that the pension became due. The respondents had seriously 6 contested the applicant's claim. The delay in authorisation has not been shown to be due to any administrative lapse. The applicant has not agitated the claim for interest in the writ petition. The claim for interest made from July 1986 cannot be now agitated under Section 11 of the Code of Civil Procedure. The claim for interest for the period after passing of the order in the writ petition cannot be made under Section 34(2) of the Civil Procedure Code. 11. Hence, the civil application fails and is dismissed. In the circumstances of the case, there shall be no order as to costs. (SMT.RANJANA DESAI, J.) (SMT.ROSHAN DALVI, J.)