High Court Kerala High Court

Elsy vs Ponnan on 3 July, 2009

Kerala High Court
Elsy vs Ponnan on 3 July, 2009
       

  

  

 
 
  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

         ==============================

                  W.P.(C)NO.13445 OF 2009

          ============================

         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

WPC.13445/2009 -6-

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