M/S Hansa Vision Pvt Ltd v. M/S Dabur (India) Ltd & Ors

S. RAVINDRA BHAT, J (JUDGE) NAJMIWAZIRI, J (JUDGE) Page 8

* IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDEDON; 26^^July,2013 + FAO(OS) 329/2013 M/S HANSA VISION PVT LTD Appellant Through : Mr. LC.Kumar, Adv. versus M/S DABUR (INDIA) LTD & ORS Respondents Through : Mr. Sudhir K.Makkar, Adv. for Dabur(India) Ltd. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMIWAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) FAO(OS) 329/2013 & CM No. 11216/2013(stav) 1. The present appeal is directed against the order of the learned Single Judge dated May, 2013 whereby the appellant was directed to pay the interest at the rate of 9% per annum on the sum of Rs. 23,39,177/- deposited by the respondents/defendants during the pendency of RFA(OS) No.27/2010. 2. The brief facts of the case are that the present appellant had filed suit No.2532/2000 for recovery of Rs.43,85,605/- against the defendants. That suit was decreed on 15^*^ February, 2010. The Page 1 Respondents/defendants'appealwas admittedby an orderof5^ May, 2010. They were directed to deposit the principal amount of Rs.23,39,177/-,which they did. The plaintiff/appellantappliedto the Court for withdrawalof the amount; the Court permittedit to do so and further directed it to furnish an appropriatesecurity by way of bank guarantee. Eventually,by the judgmentdated 13^ July, 2012; the respondents' appeal was allowed and the plaintiffs suit was dismissed. At the time of the delivery of judgment, the Division Bench stated that the defendants/respondentswould be entitled to refund of the sum withdrawnby the plaintiffduring the pendencyof the appeal and any orders on interestwould be upon an application made in that regard, to its restitutionof the benefits derived by the plaintiff. The defendant approached the Court under Section 144 CPC which has been allowedby the impugnedorder. Whilstallowingthe claim under Section 144 CPC, the Court observed that:- "Though it was nowhere stated in the interim order of 5th May, 2010 that any interest was payable by the plaintiff in the event of there being any order of invokingof bank guarantee, but the DivisionBench in its order of 13th July, 2012 specifically observed that if defendant Page2 i No Iwas able to establisha claim with the intereston the saidamount to seek restitution by initiating appropriate vroceedings.Section144 CPCprovidesthe remedy ofrestitutionnot only in the caseofjudgmentand i:::Tbeingsetasideandmodifybut^n in the case of any order being varied, modified or set Zde thatthepartyentitledto benefitofresntutim couldseekrestitutionofthe benefits otherparty.It is specificallyprovidedthat in such an event, the Court may pass any order ordersfor the refkndofthe costsandforpayment of interest, damages, compensation and mesn profits which are properlyconsequentialon such variation,reversalsettingaside or the order In the instantcase, enjoyedthe benefitofwithdrawal • which it was ultimatelyfoundas not nlaintiffcan he directedto restitutethe benefitof intereston the said amount to the defendantNo from the date of withdrawalof the said amount. ^cZZently,tie plaintiffis directedto pj the interest @ 9% on the said amount of Rs 23 39 m- to defendantNo.lfi-om the date 4 witMrawaltill the dateofrepayment Further, he defendantNo.Iwouldalsobe entitledto the refand of the Courtfee which is not contested by plaintiff" 4. Counselfor plaintifffappellantconteststhe impugnedorder andsubmitsthatthelearnedSingleJudgefellintoseriouserroroflaw invokingthe power under Section144 CPC. It was urged thatthe plaintiffhas neversoughtfor depositofflte amountand couldnotbe said to have derivedthe advantagewhich the learnedSmgle Judge FAO(OS)329/20I3 inferred. It was urged that as a consequenceof operationof law, i.e. under Order 41 Rule 5 CPC, the defendant had deposited the amount which the plaintiffwas entitledto withdrawduring the pendencyof the appeal. The counselhighlightedthe fact that the plaintiffhad to spentRs.2 lakh as commissionto the Bank in orderto keep the bank guarantee alive. Counsel relied up