IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13445 of 2009(R)
1. ELSY, D/O.BABY, AGED 47 YEARS,
... Petitioner
2. PRINCY, AGED 17, D/O.PONNAN, -DO-
Vs
1. PONNAN, S/O.LATE VELAYUDHAN,
... Respondent
For Petitioner :SRI.SUNIL NAIR PALAKKAT
For Respondent :SRI.R.DIVAKARAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :03/07/2009
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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W.P.(C)NO.13445 OF 2009
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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
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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