FIRM KARI PODDAR RAMPHAL PODDAR Vs. HARISHANKAR MILLS

JUDGEMENT

(1.) This appeal is directed against the order of the Court below dated 14-2-1953, refusing the application of the appellants under Order XXI, Rule 2, Civil P. C., for recording satisfaction of the decree.

(2.) The facts, shortly, are that respondent No. 1 had filed a money suit, No. 35/5 of 1949/50 against the defendants, including the appellants to this Court, for the recovery of a sum of Rs. 7,343/1/- as the price of certain goods supplied. It was said that the agreement was for payment of the, price together with interest, and, according to the rate prevailing in the market, 9 p.c. p.a. was chargeable as interest. The suit was eventually compromised on 8-3-1951, and a compromise decree was passed on that date. According to the terms of the compromise, the amount was settled at Rs. 5,000/-; Rs. 2,000/- out of it was paid on the date of the compromise, and Rs. 3,000/- was made payable against receipt either in instalments or in one lump by 7-9-1952. On 8-9-1952, the defendants filed an application for extension of time, but no order was passed on that application as the record was then lying in the Record Room and it was directed to be called for. The respondent had also filed a petition of rejoinder to the petition of the defendants dated 8-9-1952, and both the petition and the rejoinder were ordered to be put up on 30-10-1952. On 30-10-1952, the defendants again filed a petition for a month's more time to arrange for, payment of the money, namely, Rs. 3,000/-, on the ground of illness of their Managing Director, who was seriously ill, and the matter was fixed for 17-11-1952. On that date, again, the defendants' pleader applied for one month's more time, and the next date fixed was 2-12-1952. On this date, the defendants filed a petition stating that they had brought the money and that the plaintiff be directed to receive the same, or the defendants be permitted to deposit the same in Court, As the plaintiff had not come to Court, the plaintiff's lawyer prayed for time, and the matter was ordered to be put up on the 3rd December, and on hearing the parties on that date, the Court gave permission to the defendants to deposit the sum of Rs. 3,000/- together with interest at the rate of 1. p.c. p. m. On 18-12-1952, notice was directed to issue to the plaintiff. Chalan showing deposit of Rs. 3,090/- was received in Court on 8-1-1953. When the parties were heard, the plaintiff objected to the deposit of Rs. 3,090/- only because according to him, after the default made by the defendants, the plaintiff was entitled to the entire amount under the decree. The Court below has now held that the plaintiff had allowed concession to the defendants to satisfy the entire claim namely, Rs. 7343/I/-, by merely paying a sum of Rs. 5,000/- by the date mentioned in the agreement, namely, 7-9-1952, and, as the concession was dependant upon payment within the time allowed, the defendants were not entitled to that concession after the expiry of the time, as they had failed to pay the amount within the date stipulated. In that view of the matter, the Court below has dismissed the application for recording satisfaction of the decree.

(3.) Mr. Ghose, learned Counsel appearing on behalf of the appellants, has submitted first, that Clause 4 of the compromise petition amounts to a penalty clause, and, therefore, the Court should relieve the appellants of the penalty by putting the parties on terms; and, secondly, that the time was not of the essence of the contract.