Sneh Prabha Bansal & Anr v. Life Insurance Corporation of India

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CM (M)No. 1155/2010 & CM No. 16129/2010 % Judgment reserved on: 08th September, 2010 Judgment delivered on: 14th September, 2010 1. Smt. Sneh Prabha Bansal, Wife of Sh. S. R. Bansal, R/o B-277, Greater Kailash Part-I, New Delhi. 2. Shri Sita Ram Bansal, S/o Shri Gajadhar Lal, R/o B-277, Greater Kailash Parti-I, New Delhi. ….Petitioners Through: Mr. Ashish Dholakia with Mr. Akashdeep Kakkar, Adv. Versus Life Insurance Corporation of India, Having its Divisional Office at; Jeevan Prakash, 25, Kasturba Gandhi Marg, New Delhi. ….Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition has been filed under Article 227 of the Constitution of India, challenging order dated 6th August, 2010 passed by Civil Judge, Delhi in execution proceedings and also for recall of the orders dated 23rd May, 2001 and 18th October, 2003, in so far as they provide for interest to be paid on the sum of Rs.1,73,628.80/- in excess of simple interest at the rate of Rs. 6 per cent per annum. 2. Brief facts are that in year 1998 respondent (plaintiff in trial court) filed a suit for recovery of Rs. 1,73,628.80/- against present petitioner (defendant in trial court). As per averments made in the petition /lists of dates and events, no summon was served upon petitioners and they were proceeded ex parte. Petitioners, filed an application under Order 9 Rule 7 of the Code of Civil Procedure (for short as "Code") for recalling of the said order which was dismissed. 3. Vide judgment dated 24 February, 2001, Additional District Judge, Delhi decreed the suit of respondent for sum of Rs.1,73,628.80. 4. On 30th April, 2001, respondent filed application for modification of the rate of interest. Without notice to the petitioners that application was allowed and ex parte judgment dated 24th February, 2001 was rectified. 5. On coming to know about rectification made in the decree, petitioners filed an application for recall of orders dated 24th February and 23rd May 2001. Vide order dated 18th October, 2003, Civil Judge dismissed that application. Petitioners filed CM (M) No. 316 of 2004 against that order, on which this Court passed following orders on 5th December, 2006: "After some hearing, learned counsel for the petitioner seeks to withdraw the petition and states that he would move an appropriate application before the trial court and make an endeavour to persuade the trial court that a reduced rate of interest is liable to be granted pendent lite and future. Liberty granted to the petitioner to do so in accordance with law. Dismissed as withdrawn." 6. Subsequently, petitioner no. 2 was informed that if he paid a sum of Rs.2,00,000/-, the same would be regarded as full and final settlement of the petitioners" dues. Accordingly, he paid that amount vide cheque. Petitioner was assured that letter acknowledging as full and final payment would be issued in a day or two, however, no such letter was subsequently sent. 7. On 13th July, 2007, petitioner wrote a letter to re-confirm that payment had been accepted in full and final settlement. In view of aforesaid, petitioners did not file any application for recall of orders dated 24th February and 23rd May, 2001, since the matter stood settled. 8. In 2007, respondent filed execution petition. In view of order dated 5th December, 2006, passed by this Court, petitioners filed application for recall of orders dated 23rd May, 2001 and 18th October, 2003. By impugned order dated 6th August, 2010, Civil Judge, dismissed the said application on the ground that application is barred by principle of res judicata. 9. It is contended by learned counsel for petitioners that Civil Judge erroneously held that application was barred by principle of res judicata as similar application had