018-NLR-NLR-V-71-THE-MUNICIPAL-COUNCILOF-COLOMBO-Appellant-and-G.-Q.-JUNKEER-and-others-Resp.pdf
T. 8. FERNANDO. J.—Municipal Commissioner qf Colombo v. Junkeer 85
1068 Present: T. S. Fernando, and Samerawlekrame, J.THE MUNICIPAL COUNCIL OF COLOMBO, Appellant, and
Q. JUNKEER and others, Respondents
S. C. 233 of 1965—D. C. Colombo, 58345(M
Civil Procedure Code—Section 192—Claim for unliquidated damages—Award ofinterest from date of action—Permissibility.
'Whore decree for a sum of money is entered in favour of the plaintiff in a suitfor unliquidated damages, section 192 of the Civil Procedure Code permitsinterest on that sum to be awarded from the date of action till the date ofdecree, and thereafter on the aggregate sum till payment in full. Section 192does not limit the power of the Court to award interest to eases seekingdecrees in respect of liquidated debts only.
Ar:
PEAL from a judgment of the District Court, Colombo.
V. Perera, Q.C., -with H. Wanigaiunga, for the defendant-appellant.
C. Ranganalhan, Q.C., with K. Thevarajah and T. WieJeremasinghe,for the plaintiffa-respondents.
Cur. ado. vult.
May 8, 1868. T. S. Fernando, J.—
The plaintiffs who are the widow and minor children of one Junkeerwho had been employed by the appellant, the Municipal Council ofColombo, in the capacity of a motorman/fireman in the Fire Brigademaintained by it have been successful in the District Court in the suitthey instituted therein against the Council to obtain a decree for damagesin a sum of Rs. 55,000. Junkeer died on 5th November 1962 as a resultof a fall when he was engaged on duty -with the Fire Brigade, the fallitself resulting directly from the snapping of a cable forming put of whathas been described as the Davy Fire Escape. The plaintiffs attributedthe snapping of the cable to the negligence of the Council in permittingthe rusting of the cable ends, a rusting which was visible over the canvasand had indeed been brought to the notice of the proper officer of theCouncil. The learned District Judge found that the Council had beennegligent and we were, properly, not even invited to interfere withthat finding. The finding was based on ample evidence and the onlysurprise we feel is that the Council should have thought it proper orworthwhile to contest the issue of fact in the District Court. LearnedCounsel for the appellant intimated to us that he saw no purpose inaddressing arguments in the court of appeal on the issue of negligence.
86T. S. FERNANDO, J.—Municipal Commissioner of Colombo o. Junkeer
The District Court decree has awarded to the plaintiffs, in addition tothe aforesaid sum of Rs. 55,000, interest thereon at the rate of five percentum per annum from the date of action till the date of decree, andthereafter on the aggregate sum at the same rate till payment in full.Learned Counsel for the appellant Council has contended that the onlyprovision of law that enables a Court to award interest to a plaintiff, viz.section 192 of the Civil Procedure Code, cannot be availed of in theinstant case where the plaintiffs are claiming unliquidated damages. Hecontrasted the language of section 192,—" when the action is for a sumof money due to the plaintiff”—with the corresponding expression insection 34 of the Indian Civil Procedure Code—“ where and in so far as adecree is for the payment of money ”, and suggested that the Indianprovision which covers a wider range of money decrees than mere decreesfor money due have received in India an interpretation that excludesfrom its scope suits for unliquidated damages. He referred to twodecisions of Indian High Courts in support of his argument,. In Grewdsonv. Qanesh Dasl, two judges of the Calcutta High Court, in the course ofinterpreting section 34, said :—“ We are of opinion that interest duringthe pendency of the litigation should not have been decreed. The stun
recoverable by the plaintiff is not a debt but unliquidated damages,
and interest does not run upon unliquidated damages.” A similar viewwas taken in the Bombay High Court in Batanlal v. Brijmohan a, whereBeaumont C.J. expressed himself in regard to a question that aroseupon the same section as follows :— “ This being a pure case of damages,I do not think we can give interest before judgment ”. Mirza J. in thesame case said: “ As regards the question of interest, the plaintiffs* claimis for damages, and the decree made is in respect of damages. No interestcan be allowed on damages.” Support for the view taken in the twocases above referred to was sought by learned counsel before us by citingthe law that obtains on this question in South Africa. In Union Govern-ment v. Jackson 3, Fagan J. A. stated that 14 the ordinary rule of our lawis that liability for interest does not automatically attach to anunliquidated debt—an obligation which has not yet been reduced to adefinite sum of money ”.
The view taken of the limitations of section 34 by the two High Courtsreferred to above was not shared by the Madras High Court. In Ramalin-gam v. Gokuldas Madavji <Ss Co.*, Spencer J. declined to adopt the decisionin the Calcutta case of Grewdson v. Qanesh Das (supra) and stated “ I seeno reason why a successful party should be made to suffer because hisclaim is not decided soon after the filing of his plaint. When he files hisplaint he puts the matter in the hands of the Court for decision. If itbe held that the plaintiff cannot get interest from the date of his filinghis plaint, it is equivalent to saying that the plaintiff must be deprived ofthe fruits of his success to the extent of losing interest from day to dayduring the pendency of his suit on the sum that he was entitled to at thedate of his going to Court. The date of instituting the suit is the date
1 (1920) A. 1. J?. (Col.) at 739.» (1966) 2 8. A. L. B. at 412.
* (1931) A. J. B. (Bom.) 386.* (1926) A. 1. B. (Mad.) at 10022.
T. 8. FERNANDO, J.—Municipal Commissioner of Colombo c. Jvnkcer87
upon which the rights of parties are ordinarily determined, and when thedecree fixes the amount of damages due, I think they may be taken asfixed as on the .date of the suit, and interest allowed on that sumVenhatasnbba Rao J. in the same case, agreeing, stated : “ No distinctionis made in the section between an ascertained sum of money andunliquidated damages. As a question of construction, I find it difficultto accept the suggestion that the word * money ’ in the.section shouldbe understood in the limited sense of an ascertained sum. The expression* decree for the payment of money ’ is very general and to give it dueeffect it must be construed as including a claim to unliquidated damages.The Court is not bound to give interest; for, it must be noted, that thesection gives a discretion to give or refuse interest; and whatever thenature of the claim is, whether it is a claim to a fixed sum of money or tounliquidated damages, the Court is bound in every case to exercise asound discretion. The mere foot that the decree is for payment ofdamages cannot by itself be a bar to the plaintiff being awarded interest.”He also went .on to say that the plaintiff’s right must not be made todepend upon the mere accident of a speedy disposal or otherwise of a case/In a court where there is a congestion of work, a plaintiff may obtain adecree only after the lapse of six years, in another court in six months.Why should the plaintiff’s right to get interest be made to depend uponcircumstances over which he has no control ?
The earlier view of the scope of section 34 that was taken by the BombayHigh Court in Raianlal v. Bnjmohan (supra) was not approved in thelater case in the same High Court of Anandram Mangturam v. BholaramTanumal1 where Chagla J. (with Stone CJ. agreeing) referred to a yetearlier decision (1925. 12 A. I. E. Bom. 547) and concluded that “ thematter is clear beyond any doubt because under section 34 of the CivilProcedure Code it is entirely a matter for the Court’s discretion whetherto award interest from the date of the filing of the suit where the decreeis for the payment of money ”. Notwithstanding- the difference in thelanguage employed in section 192 of our Code as compared with section34 of the Indian Code, we do not consider that our section limits the powerof the court to award interest to cases seeking decrees in respect ofliquidated debts. We were not referred to any other relevant cases of ourCourt where section 192 has been construed; we were informed that thereis none. In the case we are concerned with here, Junkeer died inNovember 1982, the suit was instituted in January 1963 and the decree ofthe court was granted in March 1965. As we have already observed, thecase should not have been contested on the facts. In those circumstances,where the dependants of Junkeer should have received the money aboutJanuary 1963 and where the non-receipt at that time was attributableto the decision of the appellant to contest the issue of negligence, it isnot possible to maintain any contention that the discretion of the courtin respect of the awarding of interest has not been properly exercised.We are unable to uphold learned counsel’s argument against the awardingof interest from date of action to date of decree.
» (1946) A. I. B. (Bom.) 1.
88
Don Edirisingho v. De Alvie
Two other points were advanced on behalf of the appellant. Onerelated to a widows’ and orphans’ pension to which it is said the plaintiffsare entitled. This question was not adequately considered in the court oftrial. No issue was raised in respect of it. The evidence on record doesnot enable us to ascertain in what circumstances the plaintiffs becameentitled to any such pension. It is not unknown that employees underGovernment and Local Authorities themselves contribute towards widows’and orphans’ pension fund Schemes. In the absence of relevant evidenoewe cannot now hold that any sum the plaintiffs may receive under sucha Scheme should be deducted in computing the damages payable by theCouncil. The other point centred round a gratuity paid in two instal-ments of Rs. 670 each. We think that the amount of this gratuity, viz.Rs. 1,340, calls to be deducted from the sum awarded as damages. Wewould direct that the decree be varied accordingly.
Subject to the variation in the decree which would have the effect ofreducing the damages to Rs. 53,660 we would dismiss this appeal withcosts payable to the respondents.
Samerawickkame, J.—I agree.
Appeal mainly dismissed.