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PETITIONER: MAHENDRA SINGH JAGGI ETC.

       Vs.

RESPONDENT: DATARAM JAGANNATH

DATE OF JUDGMENT:       15/01/1997

BENCH: A.S. ANAND, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT: (WITH VICE VERSA)                THE 15TH DAY OF JANUARY, 1997 Present:                Hon’ble Mr.Justice A.S. Anand                Hon’ble Mr.Justice S.B. Majmudar In-person and  Ranjit Kumar,  Adv.  for  the  appellants  in C.A.No. 156 and 158/97                       J U D G M E N T      The following judgment of the Court was delivered:                             WITH (C.A. No. 157 of 1997 (arising out of S.L.P (C) No. 12429 of 1990): and  C.A. No.  158 of 1997 (arising out of S.L.P. (C) No. 6392 of 1995]                       J U D G M E N T S.B. Majmudar. J.      Leave granted in all these special leave petitions.      By consent  of parties  the appeal  arising from  these special leave  petitions were  heard finally  and are  being disposed of  by this judgment as common questions are raised for our consideration in these appeals.      The appellant  in appeals arising out of S.L.P. (C) No. 10981 of  1987 and  S.L.P. (C)  No. 6392 of 1995 is Mahendra Singh Jaggi,  party-in-person who  was also  permitted to be assisted by  advocate Shri  Ranjit Kumar who was good enough to appear  amicus curise  for him at out request, we express out deep  sense of  appreciation for the service rendered by Shri Ranjit  Kumar at  out instance.  We will  refer to  the appellant  in   these  tow  appeals  as  defendant  and  the contesting respondent  as the  plaintiff. In  appeal arising out of  S.L.P. (C)  No. 12429  of 1990  the plaintiff is the appellant while the defendant is the contesting respondent.      Disputes between  the plaintiff and the defendant which have culminated  in the  present proceedings  before us  are spread over  years and represent a chequered history. At the outset we  may  briefly  indicated  the    background  facts leading to the present proceedings.      The plaintiff  filed a  civil suit in 1961 in the Court of First  Additional Subordinate  Judge, Guttack against the defendant for  realisation of Rs. 10723.63 (Principal amount of Rs.  9385.09 plus interest Rs. 1938.54 10% p.a.) on khata

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account. According  to the  plaintiff he was a financier and had advanced  moneys from  time to time to the defendant for enabling him  to carry  on his  motor spare  part  business, According to  the plaintiff  the suit amount was failing due at the  foot of  account. In the suit the defendant raised a counter-claim in  his additional  written statement claiming certain amounts  after taking accounts from the plaintiff in respect of goods which came into his possession in pursuance of a agreement. The Trial Court decreed the plaintiff’s suit against the  defendant but  also accepted the cross-claim of the defendant  for accounts  and passed a preliminary decree for accounts  to be  rendered by the plaintiff for the goods lying in  his custody.  The Trial  Court observed  that  the details of  the decree  would be  worked out  in  the  final decree. The plaintiff carried the matter in appeal so far as preliminary decree  for accounts  was  concerned.  Defendant also appealed  against the  money decree passed in favour of the plaintiff.  Defendant’s appeal was dismissed by the High Court. Defendant  did not challenge that appellate order any further. Thus  money decree  passed  against  the  defendant became  final   but  the   plaintiff’s  appeal  against  the preliminary decree  for accounts  as passed  against him  in favour of  the defendant  was allowed  by the High Court. It set aside  that part of the judgment and decree of the Trial Court which  directed the  plaintiff to  tender accounts and dismissed the  cross-claim made  by  the  defendant  in  his additional  written   statement.  The   defendant,  who  was respondent in  plaintiff’s appeal,  carried  the  matter  in further appeal  before this  Court. A  three member Bench of this Court  speaking through  S.M. Sikri,  C.J. allowed  the appeal of  the defendant and restored the preliminary decree of accounts  as passed  in his favour by the Trial Court and directed the  Trial Court  to proceed  further  for  passing final decree  in accordance with law. The aforesaid decision of this  Court is  reported as  Mahinder Singh Jaggi v. Data Ram Jagannath  AIR 1072 Sc 1049. Pursuant to the preliminary decree for accounts as passed in favour of the defendant and against  the  plaintiff  by  this  Court  the  final  decree proceeding the  accounts as  appointed by  the  Trial  Court submitted his  Report which  was not  acceptable to both the sides. After  considering their  objections  to  the  Report ultimately  the  Trial  Court  passed  a  final  decree  for accounts in  favour of  the defendant  awarding Rs.  5,268/- with  profit   at  10%   as  recommended  by  the  aforesaid Commissioner, The defendant challenged the said final decree before the  High Court  in First  Appeal No. 17 of 1077. The total claim  put forward by the defendant in the said appeal consisted of four items totalling to Rs. 47,478.86 as under:      (a) Value of the goods in the custody of the plaintiffs 15,589.86. (b)  Value of the goods released by the bank and received by      the plaintiffs on 13.8.1957   16,759.00 (c)  increase  in  the  rate  of  goods  to  the  extent  of      10,130.00 (d)  Profit on the goods retained by the plaintiffs 5,000.00                                    Total           47,478.86      The learned  Single Judge  of the  High  Court  by  his judgment and  order dated  25th February  1987  allowed  the appeal and  held that  the  defendant  is  entitled  to  Rs. 10,750/- from  the plaintiff.  He was  also held entitled to pendente lite  interest @  8% per  annum  on  the  aforesaid amount and  future interest  from the  date of  the order at commercial rate  of interest  at 10% per annum till the date of recovery  since the  entire transaction  was  outcome  of business transaction.  The defendant moved a Review Petition

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No. 7  of 1987  which was  dismissed on  7th July  1097. The aforesaid decision  rendered by  the learned single judge in First appeal  no. 17 of 1977 is the subject-matter of appeal arising out of S.L.P (C) No. 10981 of 1987.      The plaintiff on the other hand filed and appeal before the Division  Bench of  the High  Court being A.H.O. No.8 of 1987 against  the order rendered by the learned Single Judge in First  Appeal no. 17 of 1977 insofar as the learned judge had enhanced  the decretal  amount payable to the defendant. The defendant on his part filed cross-objections in the said A.H.O. No.  8 of 1997 pending before the Division Bench. The Division Bench  allowed the said A.H.O. partly to the extent that increase  in price granted by the learned  Single Judge of Rs.  5,000/- was  set  aside  and  the  further  rate  of interest granted  to the  defendant was scaled down form 18% to   12%. So  far  as  the  cross-objections  filed  by  the defendant  were   concerned  the   Divisions  filed  by  the defendant were  concerned the Division Bench did not go into the cross-objections  in view  of the  pendency  of  Special Leave Petition  (C) No. 10981 of 1987 before this Court. The defendant thereafter preferred a review petition against the order of  the Division  Bench of  the High  Court dated 18th August 1993.  The Division Bench by order dated 20th October 1994 dismissed the review petition on account of pendency of the Special Leave Petition before this Court. The Judgements rendered by  the Division  Bench dated  10th August 1990 and 20th October  1994 are brought in challenge by the defendant in Civil Appeal arising out of S.L.P. (C) No. 6302 of 1995.      The defendant  in the  meantime sought  to execute  the final money  decree as  passed in  his  favour  against  the plaintiff  by   filling  execution  proceedings  before  the Executing Court. The Plaintiff by an application under Order 21 Rule  19 Code  of Civil  Procedure (CPC)  sought  to  get adjusted against  the defendant’s  detrital  claim  his  own decretal amount  in the  suit. The  Executing Court rejected the said  application as  not  maintainable.  The  plaintiff carried the  matter in revision being Civil Revision No. 299 of 1000  before the  High Court. The High Court rejected the said Revision  Application on  9th July  1990. This order of the High  Court is  made the subject-matter of appeal by the plaintiff in  Civil Appeal  arising out  of S.L.P.  (C)  No. 12429 of 1990.      We have  heard the  learned advocate  for the plaintiff and learned  advocate Sri  Ranjit Kumar  for  the  party-in- person as  well as  the party-in-person  in these appeals in support of their respective contentions. The following point fall for our determination. 1.   What is  the appropriate amount which should be granted      to the  defendant in  the  final  decree  for  accounts      against the plaintiff. 2.   Whether  the   plaintiff  in  entitled  to  adjust  his      decretal dues  against the  defendant’s decretal amount      as found  due and  payable  to  the  defendant  by  the      plaintiff as  per the  provisions of Order XXI Rule 19,      CPC.      As directed  by  our  order  dated  2nd  December  1996 parties were  permitted to  file written  submissions within tow weeks, Shri Ranjit Kumar, Learned counsel for the party- in-person appellant-defendant has filed written submission.      As noted earlier the defendant-appellant olaimed in all Rs. 47,479.99  from the  plaintiff on  four items (a) to (d) listed in  paragraph 8  of the  impugned judgment. The first item refers  to Rs. 19,590,90 pertaining to the value of the goods in  the oustoday  of the plaintiff. The learned Single Judge has  held the  said amount  to have been proved by the

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defendant, It  is fount  well established on record that the plaintiff had  received goods  of the  value of Rs. 97142.22 and they  were kept  in pledge by the plaintiff. These goods admittedly belonged  to the  defendant. The  learned  single judge has  also fund  that out  of the  said value of goods, goods of  the Value  of Rs.  11552,97 were  already received back by the defendant. Thus the goods of the defendant worth the net  value  of  the  Rs.  15,589.95  remained  with  the plaintiff. In  paragraph 10  of the  judgment it has been in terms held  by the learned judge accepting the Report of the commissioner that  he plaintiff  received the  goods as  per Exts, W/9  to W/20 from the defendant towards pledge. Having so held the learned Judge has refused to pass decree against the plaintiff  for the  aforesaid value  of the  goods which remained with  the plaintiff by observing that the defendant had not  adduced any evidence as whether the goods worth Rs. 11,552.97 were  out of  the goods  received by  plaintiff on 13th August  1957. This  amount is  to be  deducted out  the admitted case  the defendant  was not  paying any amount for release of  the goods.  The plaintiff had paid the amount of Rs. 15,589.86.  Having so  observed the  learned  Judge  has though it  fit not  to award  any amount to the defendant on this item. It is difficult for us to defendant on this team. It is  difficult for us to appreciate how the value of these goods which remained with the plaintiff though they belonged to the  defendant could  not have  been accounted for by the plaintiff. It  has to  account in  view that the plaintiff’s suit on  the foot  of account in already decreed against the defendant and  that decree  had become final. Therefore, the plaintiff had  nothing ore  to claim  against the  defendant towards his dues pertaining to the transaction of advance of money by the plaintiff to the defendant. Once that aspect is kept in  view it  becomes obvious that in the cross-claim of the defendant  which was  to be  adjudicated upon  on taking accounts as  directed by  this Court in Mohinder Singh Jaggi (supra) the  value of  the goods of the defendant which were not returned  to him  by the  plaintiff had to be awarded to the plaintiff.  We therefore,  set aside  that part  of  the order of  the learned  Single Judge  by which  he refused to grant decree  or Rs.  100,000.00 to  the defendant  on claim item (a) and decree his amount in favour of the defendant,      So far  as claim  item (b)  is concerned it pertains to Rs. 19,750/-, So far as this amount is concerned the learned Judge in  paragraph 8  of the judgment has in terms observed that on  19th August  1997, the plaintiff received the goods worth Rs. 19,750/- and kept the same pledged with him. It is not in dispute between the parties that these goods belonged to the  defendant,  However  the  learned  Single  Judge  in impugned judgment  was pleased  not to grant the full amount of Rs.  10,750/- to  the plaintiff  on item  (b) but granted only Rs.  9,750/- by deduoting Rs. 10,000/- by way of amount of money  paid by  the plaintiff  to the  bank for releasing these goods  from the  bank on  behalf of the  defendant. So far as  this deduction  of Rs.  10.000/- is concerned it was not is  dispute that it was advanced by the plaintiff to the defendant by way of paying it on his behalf to the bank. But his amount was already taken not of by the Trial Court while passing decree  in  favour  of  the  plaintiff  against  the defendant on  foot of  account as noted earlier. That decree has become  final. since  the amount  of  Rs.  10,000/-  was already part  and parcel  of the  decree passed in favour of the plaintiff  against the defendant the said amount payable to the  defendant in  connection with the value of the goods released by  the bank  and received by the plaintiff on 10th August 1997  as indicated  in claim  them (b).  It had to be

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kept in  view that  the evidence  on record  showed that Rs. 10,000/- was  the first  advance paid  to the  bank on  19th August 1997  by the  plaintiff and  this amount  along  with other claim  of the  plaintiff was  decreed in  total by the Trial Court. The plaintiff’s claim on this basis as found in para 7  of the  plaint  and  as  reiterated  in  plaintiff’s evidence clearly  established   this fact. The learned Trial Judge in this connection had noted in his judgment  that the defendant’s  own   stand  was   sufficient  to   accept  the correctness of  the plaintiff’s  account both  on credit and debit side. In this connection Trial Court had noted further as under :      "The   defendant    has    cogently      explained  that  out  of  such  sum      payable to  the bank the plaintiffs      financed  to   the  extent  of  Rs.      10,000/- and the balanced he repaid      in cash  vide the pass books of the      defendant. EXT.  B and B/1 the pass      books  of  the  defendant  disclose      that  thereafter  the  cash  credit      system  of   the  defendant  mainly      continued by  the finance  from the      plaintiffs  till   11th  September,      1057 when  this  cash  credit  pass      book was  closed from  Bank and  on      that very day this defendant opened      the   current   account   book   by      supplementing  of  funds  from  the      plaintiffs    which    have    been      mentioned,  as   the  money  passed      always through  the bank.  There is      no  counter  evidence  to  disclose      that the  cash credit system of the      defendant any  longer continued and      therefore the  defendant  continued      as  before   but   the   bank   was      substituted by  the  plaintiffs  as      financial    concern     and    the      circumstances    are    such    the      plaintiffs could  never have parted      with  so  much  money  without  the      pledge of goods as the Bank did."      On the basis of the aforesaid finding the learned Trial Judge had  decreed the plaintiff’s suit on contest with post against the  defendant with  interest of 8%. Thus the amount of Rs.  10,000/- paid  by the  plaintiff  to  the  bank  for releasing the  defendant’s goods  which were earlier pledged with the  bank was  already taken  care of  and was made the subject-matter of  an item  resulting in the money decree in favour  of   the  plaintiff   and  against   the  defendant. Thereafter  at   the  stage  of  taking  accounts  regarding defendant’s goods  lying with  the plaintiff  value of which was to  be decreed  in favour  of the  defendant as  per his cross-claim, there  remained no  oppasion for  the court  to again deduct  Rs. 10,000/- from the value of the goods which was to be made good by the plaintiff to the defendant as per claim item (b) otherwise it would amount to double deduction in favour  of the  plaintiff. We,  Therefore, find  that the learned Single  Judge in the impugned judgment had committed an ed  facie error in once again deducting Rs. 10,000/- from the value  of the  goods received  by the  plaintiff on 19th August 1957  totalling to  Rs. 18,750/-. In short instead of Rs, 8,750/- the entire claim of Rs. 18,750/- was required to be decreed in favour of the defendant as per claim item (b).

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we accordingly do so.      So far  the claim  item (d) is concerned in our view on fault can be found with the reasoning edopted by the learned Single Judge  of the  High Court that some guess work had to be done  about the  profit which  might have  accrued to the defendant on  this claim  as price  was gradually rising and there was  no  evidence  that  the  price  of  the  articles remained statio or the articles lost their commercial value, In absence  of any clear-out evidence on this aspect instead of remanding  the matter and prolonging the agony of parties guess work  of Rs.  5,000/- was  made by  the learned Single Judge and  Rs. 5,000/-  were awarded towards increase in the rate of  goods kept  by the plaintiff. consequently on claim item (8) the appellant had made out no case for any increase above Rs. 5,000/- as awarded by the learned Single Judge. On the other  hand the  Division Bench  of the  High  Court  in A.H.O. No. 8/97 was not justified in rejecting this claim in the impugned  judgment in  appeal arising  out of S.L.P. (C) No. 6392. The Division Bench had observed that they were not fully satisfied  about grant  of this  amount. If that is so the matter  ought to  have been  remanded instead  of  being rejected outright,  In our  view, however,  an amount of Rs. 5,000/- as  awarded on this item by the learned Single Judge remained well justified on the record of the case and called for no interference by the Division Bench.      So far  as claim  item (d)  is concerned it pertains to profit on  the goods retained by the plaintiffs. Rs. 5,000/- are already  awarded in  full by  the learned  single judge. That appears  to be  well justified  on the  record and  the Division Bench  in A.H.O.  no. 8  of 1997 has also ponfirmed the said  finding of the learned Single Judge. Therefore, on this them  nothing further  is required  to be  stated. As a result of  the aforesaid  disoussion the appellant-defendant in addition  to the  final decree of Rs. 16,750/- as awarded by  the   learned  Single  Judge  will  be  entitled  to  an additional amount as under :      Claim Item (a)  15,589.86      Claim Item (b)  10,000.00                      ---------      Total           25,589.86                     ==========      To this  amount to  be  added Rs. 16,750/- which amount was already granted by the learned Single Judge and which is upheld by  us. thus total amount payable by plaintiff to the defendant as  per  the  final  decree  will  amount  to  Rs. 42,348.88. The  defendant will  also  entitled  to  pendents light interest  @ 8%  per annum  on the  total amount of Rs. 40,348.88 upto  the date of the decree of the learned Single Judge and  future interest  thereon from  the decree  of the learned Single  Judge dated  20th February  1007 @  12%  per annum till  realisation of the entire decratal amount by the defendant from  the plaintiff. We are inolined to reduce the future interest  from 25th  February 1987  as awarded by the learned Single  Judge from  10% to  12%  agreeing  with  the reasoning adopted  by the  Division Bench  of the High Court Court in  A.H.O. of  1997 as  the relationship  between  the plaintiff and  the defendant  was not merely of a lender and borrower, but  there was  an agreement  similar to  the cash credit arrangement  with the  bank and  as the  bank rate of interest at  the relevant  time was  12% Consequently  Civil Appeal arising out of S.L.P. (C) No. 10001 of 1997 and Civil Appeal arising out of S.L.P. (C) No. 6392 of 1995 will stand partly allowed  as aforesaid and in the place and instead of the final  decree passed  by the  learned  Single  in  First Appeal No.  47 of 1077 and modified by the Division Bench of

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the High  Court in  A.H.O. No.  8 of  1097, there anall be a final decree  against the plaintiff respondent had in favour of the  appellant-defendant in the total sum of Rs. 42248.88 with pendente  lite interest thereon @ 6% per annum till the date of  the learned  Single  Judge’s  judgment  dated  25th February  1997  and  thereafter  @  12%  per  annum  on  the aforesaid amount  till realisation.   The   orders passed by the learned  Single Judge  in Civil  Review No. 7 of 1987 on 7th July  1987 and in Misoellaneous Case No. 127 of 1989 and Misoellaneous Case  No. 155 of 1993 by the Division Bench of the High Court on 8th October 1997 will also stand set aside in view  of the  aforesaid final  decree as  ordered  to  be passed by us.      That takes  us to  the consideration  of  Civil  appeal arising out  of S.L.P (C) No. 12429 of 1990. The appellant - plaintiffs have  felt aggrieved  by the order of the learned Single Judge  dismissing their  Revision Application No. 226 of 1990.  That Revision  Application arose  out of  an order dated 9th  March 1990  passed  by  the  learned  Subordinate Judge, first  court, Cuttack  in Execution  Case No.  82  of 1991. A few introductory facts leading to the present appeal deserve to be reoapitulated at this stage.      On 16th  March 1984  the appellants obtained decree for Rs. 10720.88  with interest @ 8% per annum and costs against the defendant-respondent.  The defendant,  as noted earlier, had filed  a cross-claim  claiming  preliminary  decree  for accounts against  the plaintiff,  The Trial Court passed the said preliminary  decree as  prayed for  by  the  defendant. Plaintiff and  the defendant both went in appeal in the High Court, Defendant’s  appeal against  plaintiff’s money decree was dismissed.  Plaintiff’s appeal  against the  preliminary decree in  favour of the defendant was allowed on 5th August 1070. As  seen earlier,  the defendant did not challenge the money decree  passed in favour of the plaintiff by the Trial Court and  as confirmed by the High Court. But he challenged the appellate  order vacating  the preliminary decree in his favour as  passed by  the Trial Court. As noted earlier this Court by  its decision  in the  case of Mohinder Singh Jaggi (supra) reversed  the said  decision of  the High  Court and restored the  preliminary decree  for accounts  in favour of the defendant.      The appellant  sought execution  of  his  money  decree against  the   defendant.  That   Execution   Petition   was dismissed,  The  respondent.  That  Execution  petition  was dismissed, The  respondent  on  the  order  hand  sought  to execute the final accounts decree as passed in his favour by the Trial  Court and as modified by the learned Single Judge of  the   application  under   Order  XXI  Rule  10  seeking adjustment of  his decretal amount against the decree-holder defendant’s claim  as awarded  in  the  final  decree.  That application came  to be rejected by the Executing Court. The said order  came to  be  confirmed  by  the  High  Court  in revision as  per the impugned judgment. In our view no fault can be  found with  the reasoning  adopted  by  the  learned Single Judge  dismissing the  application of  the appellant. The reason is obvious. Order XXI Rule 10 reads as under:      R.19. Execution  in case  of cross-      claims under  same decree.  Whether      application is  made to a Court for      the execution  of  a  decree  under      which two  parties are  entitled to      recover sums  of  money  from  each      other, then.      (a)  if  the  tow  sums  are  equal      satisfaction  for   both  shall  be

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    entered upon the decree; and      (b) if  the two  sums are  unequal,      execution may  be taken only by the      party entitled to be larger sum and      for so  much only  as remains after      deducting  the   smaller  sum,  and      satisfaction for  the  smaller  sum      shall be entered upon the decree."      For its  applicability it  must be  shown by  the party seeking relief  thereunder that  he is entitled to recover a sum of  money under  the very same decree Which is sought to be executed  by the  other side.  The words ’application for execution of  a decree  under which tow parties are entitled to recover  sums of  money’ in  the opening part of the Rule clearly indicate  that there  should be  two rival claims by contesting parties  against each  other arising  out of  the very same decree with is sought to be executed by one of the parties against  the other  party. In the present case it is not the  submission of  the appellant that he is awarded any amount under  the very  final decree  for accounts which the defendant seeks  to execute  against the  appellant. On  the contrary his  claim arises out of a money decree against the defendant which  has become  final. The  defendant does  not seek to  execute that  money decree as nothing in awarded to the defendant  under that decree against the plaintiff, what is awarded  to the  defendant is  under a  final  decree  on taking accounts  between the parties. Through of course both these decrees are passed in the same suit, each of them is a separate decree,  One is  a money  decree  obtained  by  the plaintiff against the defendant. Another is a final accounts decree  passed  in  favour  of  the  defendant  against  the plaintiff in  defendant’s cross-claim which is  analogous to a  cross-suit.   Under   these   circumstances,   therefore, applicability of  O.XXXI R.  10, CPC  was already ruled out, whatever remedy  the appellant may have for execution of his money decree  against the  defendant will have to be pursued independently,  The   High  Court   has  observed  that  the appellant’s Execution  Petition against  the  defendant  has been dismissed  as time barred. Be that as it may. The short question which  has been  posed  for  our  consideration  in present proceedings  is whether  the  plaintiff  could  have resorted to  provisions of  O.XXI R.10,  CPC for getting his claim  under   the  money   decree  adjusted   against   the defendant’s final  accounts  decree  against  him,  such  an effort on  the part  of the  appellant-plaintiff was clearly contra-indicated by  the express wording of O.XXI R. 19. CPC as rightly held by the High Court, it may also be noted that both the  decrees, that is, plaintiff’s money decree against the defendant  and the  defendant’s final decree against the plaintiff were  also not  passed at  the same  time but were passed at  different times as noted hereinabove. That was an additional reason  why. XXI  R.10, CPC  was rightly not held applicable to  the facts  of the  application’s case  by the High Court.  For all  these reasons this appeal fails and is dismissed.      In the  result Civil  Appeal arising  out of S.L.P. (C) no. 1001  of 1997  and Civil Appeal arising out of S.L.P (C) No. 8392 of 1995 are partly allowed as aforesaid while Civil Appeal arising  out of  S.L.P. (C)  No.  12429  of  1000  is dismissed. In  the facts and circumstances of the case there will be  no order  as to  costs in  all these appeals, Order accordingly.