9911796707
TMI Blog2010 (10) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Loan, 2003 , carrying 13.50% interest. The Appellant and the Respondent No. 3 appointed designated branches of the State Bank of India at Panaji and Margao as their agent where the applications for the loan along with the money could be deposited. In addition to the designated branches of the State Bank of India (for short the SBI) the applications could also be deposited in the designated Branches of the RBI upto to the close of banking hours on 17th May, 1993. In case of over subscription, a partial allotment was to be made Respondent No. 1 applied for the allotment of the entire loan of Rs. 9.5 crores by submitting an application along with money at the designated Treasury Branch of State Bank of India, at Panaji. The Treasury Branch was required to inform the RBI about the receipt of the application by express telegram in the evening of 17th May, 1993 itself. However, it informed the RBI about the application and receipt of the money on the next day i.e. on 18th May, 1993 by telex. In the meanwhile, RBI made the allotment of the loan of Rs. 9.5 crores to a third person on 17th May, 1993 itself and, therefore, the application made by Respondent No. 1 could not be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties is on account of the fact that the amount paid by the Appellant along with the application was not refunded to Respondent No. 1 immediately, but was re-paid only after 53 days. Though Respondent No. 1 had made a claim for damages for negligence on the part of Respondent No. 2-SBI in not sending the communication of the application to the RBI in time, the alternative claim of interest for the delayed refund of money was seriously pressed before the trial Court. Though Respondent No. 1 had claimed interest at the rate of 18% per annum for the entire period of delay of 53 days, the trial Court held that Respondent No. 1 was entitled to interest at the rate of 13.5% per annum (the rate at which interest was payable on the loan) and that too for a period of 46 days only, instead of 53 days. The trial Court held that the Appellant which had floated the loan was liable to pay the interest. So far as Respondent No. 2 was concerned, the trial Court held that the real beneficiary of the amount was the Appellant inasmuch as the SBI had transferred the money to the account of the Appellant on 24th May, 1993 and, therefore, the SBI was not liable to pay any interest. Accordingly, the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the issue of loan. If the application was made at a designated branch of the SBI, it was required to communicate the receipt of the application with money to the RBI at Fort, Bombay on the same day i.e. on 17th May, 1993 itself by an express telegram. The RBI then was to consider all the applications received and make allotment within the next 5 days. Clause 7 of the notification of loan provided that if the total subscriptions exceed the sum of Rs. 9.50 crores, partial allotment would be made to the subscribers and if partial allotment was made, proportionate refund would be made as soon as possible after allotment and no interest would be paid on the amount so refunded. From the contents of the brochure, it appears that the words refund will be made as soon as possible contemplated that the refund would made within 7 days. Though the refund was made after 53 days, as per the terms in the brochure the refund was to be made as soon as possible i.e. within 7 days and it was not to carry any interest. We are, therefore, of the view that the trial Court has rightly not awarded interest for 7 days and has awarded interest only for 46 days. We are further of the view that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With regard to the contractors however much experienced, they would merely carry out the work according to the plans prepared by the Municipality. If the engineers are negligent, the Defendants would be liable. The liability of principal for the wrongful act of his agent rests on the grounds that the principal is a person who has selected the agent and that the principal having delegated the performance of a certain class of acts to the agents, the principal should bear the risk. All that is necessary is that the act should have been committed by the agent in the course of his employment, although the principal did not authorise, or justify, or participate in the act or even if he forbade it or disapproved of it. The liability of the principal for the wrongs of his agent is a joint and several liability with the agent. The injured party may sue either or both of them. We respectfully agree with the observations quoted hereinabove. 11. The contention of the learned Addl. Govt. Advocate for the Appellant that the State of Goa cannot be responsible for the act of negligence of the SBI, therefore, cannot be accepted. In our view the Appellant is responsible for the loss suffered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instance of the Respondent No. 1 (Plaintiff), the decree of dismissal of the suit against the Respondent No. 2 cannot be modified, so as to make Respondent No. 2 liable, allowing the appeal. Per contra, learned Addl. Govt. Advocate invited our attention to ground XII of the appeal memo in which the Appellant has specifically challenged the passing of the decree against it and exonerating the Respondent No. 2 SBI. It is no doubt true that the Appellant has not claimed any contribution from Respondent No. 2 but has claimed that it is the Respondent No. 2 alone is responsible. The Government Advocate however submitted that in any event if Respondent No. 2 cannot be made solely liable, and at least the decree should have been joint and several against the Appellant and Respondent No. 2. He further submitted that under Order 41, Rule 33 of the Code of Civil Procedure (For short the Code) the Appellate Court has ample power to modify a decree and pass such a decree which ought to have been passed by the trial Court. 14. Order 41, Rule 33 of the Code provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against one and the suit is dismissed against the other, in an appeal filed by the Defendant against whom the decree has been passed while reversing the decree against him, the appellate Court is entitled to pass a decree against the other Defendant against whom the suit was originally dismissed by the trial Court. In an appeal at the instance of a Defendant against whom the decree is passed the appellate Court is entitled to pass a decree against the other Defendant who has been exonerated by the trial Court, though the Plaintiff has not filed an appeal. This position is clear from the illustration. 15. We have already indicated that the decree ought to have been passed against both, the Appellant as well as the Respondent No. 2 SBI, as it was negligent in performance of its duty. We are not called upon in this appeal to consider what would be the effect of a joint and several decree and whether the Appellant would be entitled to a contribution from the Respondent No. 2-SBI. This issue has not been raised in the appeal memo and, therefore, it is unnecessary to go into the question whether the joint and several decree against the Appellant and Respondent No. 2 would enable the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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