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C.J.George vs Govt. Of Kerala on 13 January, 2010

Kerala High Court
C.J.George vs Govt. Of Kerala on 13 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 384 of 1997()



1. C.J.GEORGE
                      ...  Petitioner

                        Vs

1. GOVT. OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.T.R.RAVI

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :13/01/2010

 O R D E R
               M.L. JOSEPH FRANCIS, J.
               - - - - - - - - - - - - - - - - - - - - - -
                  A.S.No. 384 of 1997
               - - - - - - - - - - - - - - - - - - - - - -
           Dated this the ... day of January, 2010

                          JUDGMENT

This appeal is filed by plaintiffs 1 to 3 and 5 to

7 in O.S.No. 498 of 1990 on the file of the Sub Court,

Trichur. Respondents 1 to 4 herein are defendants 1 to 4 in

that suit, which was filed for realisation of interest.

2. The appellants 1 to 3 and the predecessor in

interest of appellants 4 to 6 owned 0.4075 hectares of land

in Sy.No. 962/1-5 in Chembukkavu village in Trichur

Taluk. These lands were acquired by the 1st respondent for

the purpose of setting up of Microwave station. The 4th

respondent passed an award No.2/1989 on 6.7.1989

awarding the appellants 1 to 3 and the predecessor of the

appellants 4 to 6, a sum of Rs.18,42,741/- as compensation,

A.S.No. 384 of 1997

2

solatium etc. A cheque drawn on the Treasury was issued to

them on 19.7.1989 and on the same day the cheque was

presented for collection through Catholic Syrian Bank Ltd., Main

Branch Trichur. On the same day the cheque was presented for

payment at the Treasury. The 3rd respondent returned the cheque

unpaid on 28.7.1989 for want of intimation to the Treasury for

making the payment and for want of clearance from the Finance

Department since the amount involved was more than Rs.1 lakh.

The 1st appellant expended Rs.850/- and went over to

Trivandrum in order to get clearance from the Finance

Department. The appellants ultimately got the money only on

17-8-1989. A notice contemplated under Section 80 of the Civil

Procedure Code was sent to the respondents claiming 18%

interest as the amount of compensation for the delayed period

and Rs.850/- towards expenses incurred by the appellants in

order to get the amount. The suit was filed claiming a sum of

A.S.No. 384 of 1997

3

Rs.26,353.72 being interest for 29 days, Rs.850/- towards

travelling expenses and Rs.100/- towards notice charges and

future interest on the amounts claimed.

3. Defendants filed joint written statement contending

that the suit is not maintainable under law. The acquisition of

the land was completed and an award was passed for an amount

of Rs.18,42,741/- and cheque No.129939 dated 19.7.1989 for the

said amount was issued to the 2nd plaintiff, C. J. Johnson. On the

same day intimation was also issued to the District Treasury

Officer since the amount of compensation exceeded

Rs.1,00,000/-. A letter dated 19.7.1989 along with the

prescribed proforma was issued to the Commissioner and

Secretary, Finance Department, Trivandrum requesting the

issuance of the clearance Certificate for the above cheque

amount. As per letter No.57985/WM.T14/89/Fin. dated

4.8.1989, the District Treasury Officer was requested by the

A.S.No. 384 of 1997

4

Commissioner and Secretary, Finance Department to clear the

cheque on or before 14.8.1989 and the matter was duly informed

to the plaintiff. Thus the amount was collected by the 2nd

plaintiff on 17.8.1989 in full and final settlement of the Award

amount.

4. Since there was no dereliction of duty or delay in

prompt follow up action from the officers concerned, the

plaintiffs are not entitled to get any amount as claimed in the

notice and also prayed for in the plaint. The plaintiffs are also

not entitled to get any amount by way of damages or travelling

allowances. The notice issued by the plaintiffs is not in

compliance with the provisions contained in the Code of Civil

Procedure. There was absolutely no necessity for the plaintiffs

to go over Trivandrum as to collect the Clearance Certificate.

The defendants have acted promptly and diligently in discharge

A.S.No. 384 of 1997

5

of their official duties and the delay, if any, caused is negligible

and it amounts to only bonafide official delay which was

unavoidable. So the plaintiffs are not entitled to get the interest

of the amount as claimed for. The plaintiffs did not suffer any

loss and not entitled to get any amount as damages and prayed

for dismissal of the suit with costs.

5. In the Sub Court PW1 and DW1 were examined and

Exts.A1 to A4, B1 and B2 were marked. The learned Sub Judge,

on considering the evidence, found that there was no delay on

the part of the defendants in intimating the Treasury and the

Finance Department for getting the clearance of the cheque

amount in question and the suit was dismissed without cost.

Against that judgment and decree plaintiffs 1 to 3 and 5 to 7 filed

this appeal.

6. Heard the learned counsel for the appellants and the

learned counsel for the respondents.

A.S.No. 384 of 1997

6

7. The learned counsel for the appellants submitted that

the cheque for Rs.18,42,741/- was received by the appellants on

19.7.1989 but the appellants received the amount from the

Treasury only on 17.8.1989 and therefore, the appellants are

entitled to get interest at the rate of 18% p.a. as per Section 80 of

the Negotiable Instruments Act for the delayed payment. The

learned counsel for the appellants further submitted that Section

34 of the Land Acquisition Act provides for interest at the rate of

9% p.a. in case the amount is not paid or deposited from the date

of taking possession till it is paid or deposited. The above

Section also provides that in case the amount is not paid or

deposited within a period of one year from the date on which

possession is taken, interest at the rate of 15% p.a. is payable.

The learned counsel for the appellants further submitted that as

per the above provisions the appellants are entitled to get interest

till the actual date of payment of compensation.

A.S.No. 384 of 1997

7

8. The first plaintiff is examined as PW1. He deposed

that the plaintiffs obtained cheque for the compensation amount

for the acquired land on 19.7.1989 and that the cheque was

presented for encashment through Catholic Syrian Bank on the

same day and that the cheque was returned from the Treasury on

28.7.1989 stating that the cheque could not be encahsed for want

of clearance from the finance Department. PW1 deposed that

the plaintiffs received Ext.A2 clearance from the Finance

Department on 12.8.1989 and the cheque was re-presented on

17.8.1989, which was encashed on 19.8.1989.

9. Plaintiffs sent section 80 C.P.C. notice to the

defendants on 15.1.1990 after getting the amount due under the

cheque. The Assistant Treasury Officer of Trichur was

examined as DW1. He deposed that the cheque in question was

presented before the Treasury on 28.7.1989 and that the cheque

could not be encahsed due to Treasury ban. DW1 deposed that

A.S.No. 384 of 1997

8

the plaintiffs re-presented the cheque on 16.8.1989 before the

Treasury after getting special sanction from the Government and

the cheque was encashed on 17.8.1989. Therefore it is clear that

the plaintiffs received the cash within one month from the date of

issue of the cheque and there is no delay from the side of the

defendants for encashment of the cheque.

10. Section 105 of the Negotiable Instrument Act

provides that in determining what is the reasonable time for the

presentment for acceptance or payment, for giving notice of

dishonour and for noting, regard shall be had to the nature of the

instrument and the usual course of dealing with respect to similar

instruments; and, in calculating such time, public holidays shall

be excluded.

11. Considering the facts and circumstances of the case, it

appears that delay in encashment of cheque is reasonable.

Therefore, the learned Sub Judge is perfectly justified in

A.S.No. 384 of 1997

9

dismissing the suit. The result is that the appeal has to be

dismissed, as it is without any merit.

Accordingly this appeal is dismissed. The judgment and

decree dismissing O.S.No. 498 of 1990 on the file of the Sub

Court, Trichur is confirmed. The parties are directed to suffer

their respective cost in this appeal.

(M.L. JOSEPH FRANCIS)
Judge
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