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.
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A.S.No. 384 of 1997
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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,
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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
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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
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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
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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.
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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.
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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
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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
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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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