Sunday, 28 July 2019

Whether plaintiff is entitled to get interest on decretal amount in suit for malicious prosecution?

 Under Section 34 of the Code the Court has a discretion to order interest when "a decree is for the payment of money". The learned Counsel for the plaintiff relied upon the judgment of the Division Bench of the Madras High Court in Ramalingam Chettiyar (supra) to urge that the expression "money" should not be understood in a limited sense of an unascertained sum. It was held by the Division Bench in that case that a decree for payment of damages was also a decree "for the payment of money" as contemplated by Section 34 of the Code. This judgment has been subsequently followed by the Division Bench of the Kerala High Court in K.S.E. Board (supra). Following the view as taken by the Division Bench of the Madras High Court, it is held that a decree for payment of money would also include a decree for grant of damages. On that count the plaintiff is entitled to claim interest on the said decree from the date of filing of the suit. It is by now well settled that the grant of interest pendente lite is a matter within discretion of the Court and its grant is not limited only to commercial transactions. Reference in that regard can be made to the decision in Vikram Somaji Dhabale (supra). There has to be a justifiable reason therefore to deny a successful plaintiff the grant of pendente lite interest. In the facts of the present case, there does not appear to be any reason whatsoever to deny the plaintiff that relief. Though it was urged on behalf of the defendant Nos. 1 and 2 that they could not be blamed for the delay in deciding the proceedings, the same cannot be a reason to deprive the successful plaintiff the fruits of interest pendente lite. The appellate Court without assigning any reason did not grant interest pendente lite. Substantial question of law No. 3 is answered by holding that the plaintiff is entitled to interest on the decreetal amount from the date of filing of the suit.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 63 of 2018 and Cross Objection/Appeal No. 22 of 2018 in Second Appeal No. 63 of 2018

Decided On: 29.06.2018

 Rajendra  Vs. Ashish and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(4) MHLJ 451


1. Admit. Heard finally on the following substantial questions of law:

(1) Whether the appellants are entitled to seek protection under provisions of Section 22 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989?

(2) Whether the suit filed on 25/09/2006 was within limitation as prescribed by law?

(3) Whether the respondents are entitled to interest on the decreetal amount from the date of filing of the suit?

2. The appellants are the original defendants in the suit filed by the respondent No. 1 herein for grant of damages on account of his malicious prosecution by the defendants. It is the case of the plaintiff that he was a tenant of the house property owned by the defendant No. 1. In the year 2003, the defendant no. 1 started demanding higher rent and in the process also asked the plaintiff to vacate the rented premises. As the plaintiff refused to do so, the defendant no. 1 lodged a report on 25-9-2004 implicating the plaintiff on the allegation that he had abused him in the name of his caste. The cognizance of the report made by the defendant no. 1 was not immediately taken. On 18-11-2004 the wife of the defendant no. 1 lodged another report against the plaintiff and on that basis an offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989) read with Section 294 of the Indian Penal Code was registered. The plaintiff was therefore required to take various steps to protect his liberty. According to the plaintiff, the aforesaid acts on the part of the defendant Nos. 1 and 2 caused hardship to the plaintiff. He suffered financial losses and his mother also expired due to shock. Hence, after being acquitted in Sessions Trial No. 5/2005, the plaintiff filed the present suit seeking damages to the tune of Rs. 4,00,000/- on account of his malicious prosecution.

3. A written statement was filed by the defendant Nos. 1 to 5 denying the case of the plaintiff. It was denied that the plaintiff was prosecuted maliciously and it was asserted that he was acquitted from the charges on technical grounds.

4. The trial Court after considering the evidence on record held that the defendant Nos. 1 and 2 had prosecuted the plaintiff without reasonable and probable cause. There was a malicious intention in prosecuting the plaintiff and therefore it was held that the plaintiff was entitled for damages to the extent of Rs. 1,00,000/-. The suit was accordingly partly decreed against the defendant Nos. 1 and 2 only. The appeal filed by the defendant Nos. 1 to 4 was dismissed by the appellate Court. The cross-objection filed by the plaintiff seeking grant of interest on the amount of damages was partly allowed and damages were directed to be paid @ 6% per annum from the date of the decree till realization.

5. Shri D.C. Chahande, learned Counsel for the appellants submitted that both the Courts committed an error in holding that the plaintiff had been maliciously prosecuted by the defendant Nos. 1 and 2. The defendants belonged to the Scheduled Caste and for the purposes of protecting their rights they had lodged a report against the plaintiff. Relying upon the provisions of Section 22 of the Act of 1989, it was submitted that bonafide steps taken by the defendant Nos. 1 and 2 while lodging the report against the plaintiff had the effect of conferring statutory protection on them. The defendants could not have been sued for claiming damages for malicious prosecution. He submitted that the defendant Nos. 1 and 2 were residents of an area in which a large population of the members of the Scheduled Caste community resided and this also indicated that the defendant Nos. 1 and 2 belonged to Scheduled Caste. Merely because the caste certificate was not placed on record, it would not indicate that the defendant Nos. 1 and 2 did not belong to the Scheduled Caste. He sought to rely upon the documents filed along with Civil Application No. 753/2018 by way of additional evidence and submitted that the caste certificate issued to the defendant No. 1 indicated that he belonged to the Scheduled Caste and that the uncle of the defendant No. 1 had been elected as a Member of the Legislative Assembly from a constituency reserved for Scheduled Castes in the year 1962.

It was then submitted that the plaintiff was acquitted in the criminal proceedings by the Sessions Court on 23-9-2005. As per provisions of Article 74 of the Limitation Act, 1963 (hereinafter referred to as the Act of 1963) the suit was required to be filed within a period of one year from the date of acquittal. The suit was filed on 25-9-2006 which was beyond the period of one year and hence, the suit itself was barred by limitation. He submitted that though such plea was not raised in the written statement, same ought to be considered in the light of provisions of Section 3 of the Act of 1963. In support of said submission, learned Counsel placed reliance on the decisions in Bhag Mal alias Ram Ram Bux and others vs. Munshi (dead) by Lrs. and others MANU/SC/7240/2007 : (2007) 11 SCC 285, Noharlal Verma vs. District Coop. Central Bank Ltd. MANU/SC/4439/2008 : (2008) 14 SCC 445 and Bajranglal Shivchandrai Ruia vs. Shashikant N. Ruia and others MANU/SC/0263/2004 : (2004) 5 SCC 272.

It was further urged without prejudice to the aforesaid contentions that the plaintiff was not entitled for interest on the decreetal amount either from the date of the suit or from the date of the decree.

6. Shri R.I. Agarwal, learned Counsel for the respondent No. 1 on the other hand submitted that the defendant Nos. 1 and 2 were not entitled to seek any protection under provisions of Section 22 of the Act of 1989. According to him, that protection was available only in respect of action taken in good faith that was done or intended to be done under the Act of 1989. Both the Courts had found that the prosecution of the plaintiff was without any justifiable cause and that after a full-fledged trial the plaintiff had been acquitted. There was no evidence on record to indicate that the initiation of criminal proceedings by the defendant Nos. 1 and 2 was in good faith or was intended to be done under the Act of 1989 so as to claim protection under Section 22.

According to him, the Sessions Court acquitted the plaintiff on 23-9-2005. The period of limitation of one year would commence from 24-9-2005 and the same expired on 23-9-2006. 23-9-2006 was a Saturday which was a holiday and 24-9-2006 was a Sunday. The suit was filed immediately on the next working day and it was therefore within limitation. In that regard, he referred to the provisions of Sections 9 and 10 of the General Clauses Act, 1897 (hereinafter referred to as the Act of 1897). As per provisions of Article 74 of the Act of 1963, the suit was therefore within limitation. Moreover, the issue of limitation was not raised by the defendant Nos. 1 and 2 either before the trial Court or before the appellate Court. In that regard he referred to the decisions in Harinder Singh v. S. Karnail Singh and others MANU/SC/0056/1956 : AIR 1957 SC 271, M/s. Saketh India Ltd. and others v. M/s. India Securities Ltd. MANU/SC/0151/1999 : AIR 1999 SC 1090 and Tarun Prasad Chatterjee v. Dinanath Sharma MANU/SC/0635/2000 : AIR 2001 SC 36.

As regards the cross-objection filed by the plaintiff it was submitted that interest ought to be awarded from the date of the filing suit and such prayer was made in the suit itself. The trial Court merely decreed the suit but did not grant any interest on the decreetal amount. In the cross-appeal filed by the plaintiff such prayer was made but the appellate Court granted interest only from the date of the judgment. It was urged that there was no reason whatsoever not to grant interest from the date of the suit and hence the same ought to be so awarded. In that regard, the learned Counsel placed reliance on the decisions in Ramalingam Chettiyar v. Gokuldas Madavji & Co. MANU/TN/0252/1925 : AIR 1926 Madras 1021, Satish Sovent Extractions Pvt. Ltd. vs. New India Assurance Company Ltd. MANU/MH/0051/1996 : 1996 (1) Mh.L.J. 567 and Vikram and another vs. Bisan Ramaji Katgaye MANU/MH/1405/2017 : 2017 (6) Mh.L.J. 586.

7. As stated above, the appellants have filed Civil Application No. 753/2018 praying that they be permitted to place on record additional evidence under provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). In the application, a reference is made to a copy of the caste certificate issued to the defendant No. 1 and his daughter. It has been stated that these documents would indicate that the defendant No. 1 belonged to the Scheduled Caste.

This application has been opposed by the plaintiff on the ground that the requirements of producing additional evidence as required by law are not satisfied. His learned Counsel placed reliance on the decision in State of Karnataka and another vs. K.C. Subramanya and others MANU/SC/1178/2013: (2014) 13 SCC 468.

8. I have heard the learned Counsel for the parties on the substantial questions of law as framed. For the purposes of answering those substantial questions certain admitted facts may be referred to. On the report lodged by the defendant No. 2 dated 18-11-2004, the plaintiff was prosecuted for the offence registered under Section 3(1)(x) of the Act of 1989 read with Section 294 of the Indian Penal Code. The Sessions Court at the conclusion of the trial and after considering the evidence on record recorded a finding that the Prosecution had failed to prove its case against the plaintiff. Accordingly, the plaintiff was acquitted on 23-9-2005. The said judgment is on record at Exhibit-29. The plaintiff then issued a legal notice on seeking damages to the tune of Rs. 4,00,000/- and thereafter the aforesaid suit came to be filed. In this suit the plaintiff examined himself and two other witnesses. The defendants however did not enter the witness box for leading any evidence. As noted above, the trial Court partly decreed the suit and granted damages to the tune of Rs. 1,00,000/- payable by the defendant Nos. 1 and 2. The appellate Court after considering the challenge to the judgment of the trial Court by both parties dismissed the appeal filed by the defendant Nos. 1 and 2 and partly allowed the cross-objection filed by the plaintiff by granting interest @ 6% per annum from the date of the decree in Regular Civil Suit No. 62/2012 till realization.

9. As regards substantial question of law No. 1:

The defendants claim that in view of provisions of Section 22 of the Act of 1989 they are entitled to protection in respect of the act of lodging report against the plaintiff on the ground that the same was done in good faith. According to them, as they were seeking to protect the rights conferred on them and as the alleged utterances of the plaintiff amounted to commission of an offence under the Act of 1989 they had lodged a report against the plaintiff after which he was prosecuted. The report lodged by the defendant No. 2 was in good faith and hence, by virtue of provisions of Section 22 of the Act of 1989 the said defendants could not have been prosecuted for seeking damages on account of malicious prosecution. Reference was also made to the provisions of Section 8 (c) of the Act of 1989 to urge that the plaintiff was aware that the defendant Nos. 1 and 2 belonged to the Scheduled Caste. If the judgment of the Sessions Court in Sessions Trial No. 10/2005 is perused, it can be seen that the Sessions Court has held after considering the evidence on record that it was not proved by the Prosecution that the plaintiff had abused or used obscene words against the said defendants. It was held that the Prosecution could not prove that the alleged incident had occurred. Further it was also held that the caste certificate of the defendant No. 1 that was filed in the said proceedings was not a genuine document.

10. It is to be noted that in the trial Court the defendant Nos. 1 and 2 did not lead any evidence whatsoever. In the light of the plaintiff's acquittal in the criminal case which was based on the premise that the occurrence of the alleged incident was not proved and that the caste certificate submitted by the defendant Nos. 1 and 2 was not a genuine document, the burden was on the defendant Nos. 1 and 2 to prove that the report lodged by them before the police authorities was an act done in good faith. The expression "good faith" contemplates an act done with due care and attention. In order to act in "good faith", a person must act honestly. After the acquittal of the plaintiff, the burden on the defendant Nos. 1 and 2 to prove that they had acted in good faith while lodging the report was greater. It has rightly been observed by the appellate Court that the defendants did not avail of the opportunity of showing that their act of lodging the report was a probable and bonafide act. However, there was no material whatsoever on record to consider the plea of the defendants that the lodging of said report was "an act done in good faith". Hence, there is no basis whatsoever to apply the provisions of Section 22 of the Act of 1989 by which it can be said that the action taken by defendant Nos. 1 and 2 was in good faith and hence, they were entitled for protection.

11. In this background the defendant Nos. 1 and 2 have filed an application under provisions of Order XLI Rule 27 of the Code for permission to produce documents on record so as to substantiate their contention that they belong to the Scheduled Caste. It is found that the necessary ingredients for seeking permission to lead additional evidence are not satisfied in the present case. The defendant Nos. 1 and 2 did not lead any evidence before the trial Court. No such attempt was also made before the first appellate Court. It is not therefore the case that they could obtain the caste certificate subsequent to the adjudication of the civil suit especially when the said caste certificate issued to the defendant No. 1 is dated 16-1-2012. Granting such permission at this late stage would amount to permitting the defendant nos. 1 and 2 to fill in the lacunae. The same would also cause prejudice to the plaintiff. In the light of the law as laid down in K.S. Subramanya and others (supra), the prayer as made in the civil application cannot be granted. The civil application is accordingly rejected.

It is thus found that the defendant Nos. 1 and 2 have not made out any case whatsoever to seek protection for their actions on the premise that the same were done in good faith. The said defendants are not entitled to any protection under Section 22 of the Act of 1989. Substantial question of law No. 1 is answered accordingly.

12. As regards Substantial Question of Law No. 2:

The judgment of the Sessions Court acquitting the plaintiff is dated 23-9-2005. The present suit has been filed on 25-9-2006. As per provisions of Section 9 of the Act of 1897 while computing the time as prescribed, the first day in a series of days has to be excluded while the last day in the series of days or period of time has to be included. As per provisions of Section 9(2) of the Act of 1897 these provisions would apply while considering the provisions of the Act of 1963. Thereafter, under provisions of Section 10 of the Act of 1897 if the Court or office is closed on a particular day or the last day of the prescribed period then the act or proceedings shall be considered as done on the next day on which the Court or office is open. These provisions have been considered by the Hon'ble Supreme Court in Harinder Singh, Tarun Prasad Chatterjee and M/s. Saket India Ltd. (supra). The law therefore is that ordinarily while computing the relevant time the rule observed is to exclude the first day and to include the last day. Further if the period prescribed expires on a holiday, the relevant act can be done on the next day when the Court is open.

In the present case, as the judgment of the Sessions Court acquitting the plaintiff is dated 23-9-2005, that day would have to be excluded and the period of one year as prescribed by Article 74 of the Act of 1963 would commence from 24-9-2005. The period of one year would therefore expire on 23-9-2006. 23-9-2006 was a Saturday on which the Court was closed. The Court was also closed on 24-9-2006 which was a Sunday. The suit has been filed on 25-9-2006 and is therefore within limitation. Though the period of one year expired on 23-9-2006, the Court being closed on that day as well as on the next day, the suit has been filed on the next working day. In view of the provisions of Sections 9 and 10 of the Act of 1897 the suit was filed within limitation as prescribed by Article 74 of the Act of 1963. The decisions relied upon by the learned Counsel for the appellants do not support his contentions. Substantial question of law No. 2 is answered by holding that the suit was filed within limitation.

13. As regards substantial question of law no. 3:

The plaintiff in the plaint prayed for grant of interest on the amount of damages from the date of the suit till realization. The trial Court partly decreed the suit but did not grant any interest on the decreetal amount. The plaintiff therefore filed cross-objections and the appellate Court granted interest @6% per annum from the date of the decree. Cross-objections have been filed in this appeal seeking grant of interest from the date of the decree. The suit as filed is for grant of damages on account of malicious prosecution of the plaintiff. The damages have been ascertained by the trial Court at Rs. 1,00,000/- which quantum has been accepted by the plaintiff. The damages as claimed were ascertained for the first time by the trial Court when it partly decreed the suit.

14. Under Section 34 of the Code the Court has a discretion to order interest when "a decree is for the payment of money". The learned Counsel for the plaintiff relied upon the judgment of the Division Bench of the Madras High Court in Ramalingam Chettiyar (supra) to urge that the expression "money" should not be understood in a limited sense of an unascertained sum. It was held by the Division Bench in that case that a decree for payment of damages was also a decree "for the payment of money" as contemplated by Section 34 of the Code. This judgment has been subsequently followed by the Division Bench of the Kerala High Court in K.S.E. Board (supra). Following the view as taken by the Division Bench of the Madras High Court, it is held that a decree for payment of money would also include a decree for grant of damages. On that count the plaintiff is entitled to claim interest on the said decree from the date of filing of the suit. It is by now well settled that the grant of interest pendente lite is a matter within discretion of the Court and its grant is not limited only to commercial transactions. Reference in that regard can be made to the decision in Vikram Somaji Dhabale (supra). There has to be a justifiable reason therefore to deny a successful plaintiff the grant of pendente lite interest. In the facts of the present case, there does not appear to be any reason whatsoever to deny the plaintiff that relief. Though it was urged on behalf of the defendant Nos. 1 and 2 that they could not be blamed for the delay in deciding the proceedings, the same cannot be a reason to deprive the successful plaintiff the fruits of interest pendente lite. The appellate Court without assigning any reason did not grant interest pendente lite. Substantial question of law No. 3 is answered by holding that the plaintiff is entitled to interest on the decreetal amount from the date of filing of the suit.

15. As a result of the adjudication of the substantial questions of law, the judgment of the appellate Court in Regular Civil Appeal No. 359/2015 dated 18-09-2017 is partly modified. It is held that the plaintiff is entitled for interest @ 6% per annum from the date of the suit till its realization. Rest of the decree stands confirmed. Second Appeal No. 63/2018 stands dismissed. The cross-objections filed by the original plaintiff are allowed. The parties shall bear their own costs.


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