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Present: Garvin and Drieberg JJ.1928.
BANDARA v. ATTYGALLE.4—D. C. (Inly.) Ralnapura, 4,371.
Deposit—Money brought into Court—Presence of plaintiff’s proctoron date of deposits—Notice to plaintiff—Civil Procedure Code,ss. 409, 410, 411.
Where the defendant, in filing answer, deposited in Court a sumof money in satisfaction of the plaintiff’s claim and the plaintiff’sproctor was present in Court when the money was tendered,—
Held-, that the plaintiff must be deemed to have had noticeof the deposit and that the plaintiff was not entitled to intereston the sum tendered from the date of deposit. –
The sum deposited rtiust be applied in the first place as a paymentagainst interest.
PPEAL from an order of the District Judge of Ratnapura.
Navaratnam, for defendant, appellant.
June 30, 1928. Garvin J.—
The facts material to this appeal are as follows: The plaintiffon October 14, 1925, sued upon a mortgage bond claiming thatup to that date there was due to him thereon a sum of Rs. 2,500
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as principal and Rs. 2,400 by way of interest, two sums aggregatingto Rs. 4,900. The defendant filed answer on December 10, 1925,and with his answer brought into Court a sum of Rs. 2,500, whichhe alleged was the full amount due to the plaintiff in consequenceof an arrangement to waive interest which he pleaded. Decreewas eventually entered on August 27, 1926, for the full amountclaimed. After decree the defendant deposited a further sumof Rs. 2,717'02, which he said was made up as follows : Rs. 2,400being interest due on the original principal Bum of Rs. 2,500 andRs. 317'02 being costs. He then moved that satisfaction ofjudgment be entered up claiming that his obligations under thejudgment had been fully discharged by the payment just referredto and the deposit of Rs. 2,500 made, when his answer was filed.This motion was resisted and the principal contest at the hearingrelated to the interest.
The plaintiff contended that he was entitled to interest fromOctober 14, 1925, that date being the date of the action upon theaggregate sum of Rs. 4,900, whereas the defendant contended thatas and from December 10, 1925, no interest was recoverable forthe suin of Rs. 2,500 deposited by him.
Section 409 of the Civil Procedure Code and the sections whichfollow thereon provide for the case of payment of money into Court.A defendant is permitted, when filing answer, to deposit in Courtsuch sum of money as he considers to be a satisfaction in •full ofthe plaintiff’s claim. Section 410 contemplates that notice inwriting of the deposit should be given to the plaintiff and makesprovision enabling the plaintiff to claim the sum so deposited.
We are principally concerned with the provision of section 411,which states that no interest shall be allowed to the plaintiff onany sum deposited by the defendant from the date of receipt ofsuch notice, whether the sum deposited be in full settlement ofthe claim or falls short thereof. The only question we have leftfor consideration is whether the defendant had notice of this depositand, if so, on what date such notice was received by him. We arenot aware whether a separate and formal notice in writing of thedeposit was given to the plaintiff. No objection on any suchground was taken at the hearing of this motion. But on theday fixed for the filing of the answer his proctor was present inCourt; the answer was filed; a sum of Rs. 2,500 was tenderedwith it to Court in the presence of the parties. The Court madeorder accepting the answer and the deposit. Thereafter theplaintiff filed a replication. The plaintiff therefore had noticeon that day of the answers which expressly stated that the moneywas being brought into Court and that this answer was acceptedby the Court.; he was also aware that the deposit was made.
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Section 414 of this chapter requires that an answer in whichit is pleaded that the defendant professes to pay money into Courtor sets up a tender of any sum shall be rejected unless the sum ofmoney so professed to be paid into Court or is alleged to have beentendered is actually paid into Court. But as I observed in thisease,, we have the circumstance that the plaintiff’s proctor waspresent when this order was made and was aware of it. Underthese circumstances it- seems to me that the defendant is entitledto the concession he asks for as and from the date of the filing ofthe answer, that is to say, December 10, 1925. On that date therewas due from him the sum of Rs. 4,900 plus a further sum of Rs. 68* 60being interest which accrued thereon at the date of the filing ofthe plaint up to the date of the answer. The sum of Rs. 2,500must I think be treated as a payment made against that debtand, in accordance with the ordinary rule, should be applied in thefirst place as a payment against interest. If it is so treated thereremained at that date a balance sum of Rs. 2,468*60 due from thedefendant to the plaintiff. The defendant is therefore entitledto contend that the interest which the plaintiff is entitled shouldbe calculated upon the sum of Rs. 2,468*60 and not on the totalsum of Rs. 4,900. He will thus be entitled to have satisfactionof judgment entered up on satisfying the Court that he has paida sum of Rs. 2,468*60 with interest thereon up to the date ofdecree together with interest on the aggregate sum composedof Rs. 2,468*60 and interest from the decree up to the date ofpayment and the costs of suits, apart from and in addition to thesum of Rs. 2,500 brought into Court with his answer. It is interest-ing to find in the record a statement by plaintiff's proctor datedKovember 4, 1926, in which the amount due from the defendantis computed on the basis indicated. As to the technical difficultycaused by the tenns of the decree we accede to the prayer of theappellant of which the respondent has had notice and in revisiondirect that it be modified in accordance with this judgment.
We make no order as to costs.
Drtebebg J.—I agree.
BANDARA v. ATTYGALLE