LexSRI RAMNIK VALLABHDAS MADHVANI AND ORS. versus TARABEN PRAVINLAL MADHVANI
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A SRI RAMNIK V ALLABHDAS MADHV AN! AND ORS. v. TARABEN PRAVINLAL MADHVANI NOVEMBER 5, 2003 B [V.N. KHARE, CJ., S.B. SINHA AND ARUN KUMAR, JJ.] Code of Civil Procedure (Amendment) Act, 1976-Section 97-Interest- Rate of-Suit instituted prior to Amendment Act of 197 6-Amendment of plaint C sought for changing rate of interest to 13'Yo-Amendment allowed in 1985- Court awarding 13% interest from date of decree till realization-Held, unamended provision would apply in view of Sec. 97 (l)(e) of the Civil Procedure Code (Amendment) Act, 1976-Unamended provision restricted interest from date of decree to realization to 6'Yo-Held, 13% rate of interest could not be allowed-Code of Civil Procedure, 1908-Section 34. D Code of Civil Procedure, 1908-0rder VI Rule 17-Amendment- Procedure after allowing-Held, opposite party must be given a char:ce to contest the amended plea-Amendment allowed by court and on the same day decree was passed on basis of amended plea-Held: illegal. E Constitution of India, 1950-Article 136-Special Leave Petition-- Dismissal of-Effect of-Held, cannot act as res-judicata-Court allowing amendment in rate of interest sought for by the plaintijf-l>ecree awarded on the amended rate of interest-Amended rate of interest against provision of /aw-Held, decree is an nullity being without jurisdiction-There is no res F judicata in cases of inherent lack of jurisdiction. Words and Phrases-Goodwill-Meaning of The respondent was the widow of the paternal uncle of the appellants. The family owned a tea estate, which was being managed by G family firm of which the husband of the respondent was a partner. The firm was continuously in business since 1954. The husband of the respondent died on 4.5.1969. The respondent thereafter filed a suit against the appellants and their widowed mother praying for the following relief: (a) decree of partition of the tea estate. I-I 230 R.V. MADHVANI v. T.P. MADHVANI 231 (b) decree for accounts of the family firm including goodwill, stocks A in trade, standing crops etc. of the firm along with interest at 6% per annum from 4.5.1969. (c) decree for accounts of mesne profit from 5.5.1969 with interest at 6 % per annum from 5.5.1969. The Trial Court, by a preliminary decree, granted prayer (b) along with interest thereon at 6% per annum from 4.5.1969. The suit of the respondent in respect of other prayers was dismissed. B The respondent appealed against the preliminary decree. While the appeal was pending before the High Court, the respondent applied for C amendment of the plaint filed by her and the High Court allowed the amendment application on 16.12.1985 and rate of interest claimed in prayer (c) was changed to 13% per annum from 6% per annum. No chance was given to the appellants to file reply to the amended plaint and by order dated 16.12.1985, the High Court also allowed the appeal of the D respondent. All three prayers made by the respondent in the plaint were decreed. The High Court, taking note of amendment in Section 34 of the Code of Civil Procedure by Code of Civil Procedure (Amendment) Act, 1976, allowed interest at the rate of interest as charged by the nationalised banks during the relevant period on commercial loan. The special leave petition filed against the order allowing amendment and the preliminary E decree passed by High Court was summarily dismissed. The Trial Court, thereafter, passed final decree in accordance with the order of ,the High Court. Insofar as mesne profits was concerned, the Trial Court determined a sum of Rs. 26,330,16.30 as due by way of mesne profit to the respondent and awarded simpte interest thereon at the rate F of 13% per annum till realization. The appellants and the respondent filed appeals against the final decree. By consent of parties a Commission consisting of a retired High Court Judge and two Chartered Accountants, one nominated by each G party, was appointed for determining the amount of mesne profit. The Commission determined the mesne profit at Rs. 33,32,847.83. Ultimately, the High Court disposed of the appeals modifying the decree of the Trial Court. The High Court determined the mease profits payable to the respondents, including interest from 5.5.1969 to 5.8.1986, H 232 SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R. A at Rs. 78,33,560. The High Court calculated the interest at varying rates of interest (ranging between 10% to 19% per annum) on periodical basi
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