M. S. PARIKH, J. ( 1 ) ). THE plaintiff firm filed Civil Suit No. 740 of 1975 against the defendants for recovery of Rs. 42,859. 64 ps. with costs and interest on following brief facts alleged in the plaint. ( 2 ) THE plaintiff No. 1 is a partnership firm in which plaintiff No. 2 is one of the partners. The defendant No. 1 is the defendant No. 2s wife. The defendants had a plot of land described in the plaint. They wanted to construct building and, therefore, after some amount of communication with the plaintiffs they entered into contract with plaintiffs regarding construction of Bungalow in the said plot of land. All printed quotation/sheet with estimates and quantity as well as rates of different items of construction had been attached with the contract. On February 4, 1975 the plaintiffs sent by Registered Post the bill of cost of construction to the first defendant. The second copy of the bill was sent on February 9, 1975. As per the said bill the cost of construction came to Rs. 63,435. 29 ps. However, the items of the compound wall, the construction below the partitions and the items of difference in the value between the cost of send-face plaster and shagol-finishing were not included in those bills, as measurements and calculations of those items were not done by that time. The plaintiffs, therefore, stated to have reserved their right to give supplementary bill for such items. Besides, the building materials worth Rs. 8,950. 00 belonging to the plaintiffs were lying at the site of the Suit bungalow. However, the defendants did not permit them to complete the construction work so that such materials could be used. According to the plaintiffs if the defendants did not pay the cost of construction as and when the construction progressed, the defendant would be liable to pay interest and accordingly a sum of Rs. 424. 35 ps. was added as interest. Accordingly, as per the bills sent by the plaintiffs and after deduction of the amount paid by the defendants the decree for rs. 42,859. 64 ps. was claimed. xxx xxx xxx xxx xxx 10. Having heard the learned Counsels for the parties, I find that following points for determination arise in this Appeals : 1. Whether the plaintiffs have proved their composite bill Exh. 48 entirely ? 2. 42,859. 64 ps. was claimed. xxx xxx xxx xxx xxx 10. Having heard the learned Counsels for the parties, I find that following points for determination arise in this Appeals : 1. Whether the plaintiffs have proved their composite bill Exh. 48 entirely ? 2. Whether the defendants have established their additional payment of rs. 20,000/- ? ( 3 ) WHETHER the plaintiffs would be entitled to interest till upto the date of decree ? ( 4 ) WHAT should be the order in this Appeal read with Cross-objections ? ( 5 ) ( 6 ) ( 7 ) ( 8 ) ( 9 ) ( 10 ) ( 11 ) ( 12 ) ( 13 ) ( 14 ) ( 15 ) ( 16 ) ( 17 ) ( 18 ) ( 19 ) ( 20 ) . ( 21 ) ( 22 ) ( 23 ) ( 24 ) ( 25 ) ( 26 ) THE last question raised by the learned Counsel for the appellants pertains to interest upto the date of Decree. At first, it was submitted that by virtue of the provisions contained in Sec. 34 of the Code of Civil Procedure, the learned trial Judge had discretion in the matter of rate of interest and not on the question whether to allow or not at all to allow the claim of interest. Reference in this connection was made to a decision of the Honble Supreme Court in the case of Union of India v. Watkins Mayor and co. , reported in AIR 1966 SC 275 . In Para 5 of the citation, it has been observed that interest may be awarded for the period prior to the date of the institution of the suit when there is an agreement for the payment of interest at fixed rate or when interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law as for instance, under Sec. 80 of the Negotiable instruments Act, 1881, when no rate of interest is specified in the promissory note or bill of exchange, the Court may award interest at the rate of 6 per cent per annum. It is no doubt true that interest may be awarded as per the contract between the parties. It is no doubt true that interest may be awarded as per the contract between the parties. In the present case, there is no reference to the award of interest from the very inception. This can be seen from the following paragraphs reproduced from the judgment of the learned trial Judge. The question is whether there is discretion in the Court for allowing or not at all allowing interest prior to the date of decree. Reference in this connection has been made to Sec. 34 of the Code of civil Procedure, which deals with interest from the date of the suit upto and after the date of the decree. Section 34 would read as under :"34. (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit : provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may, exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. Explanation I : In this sub-section "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of undertakings) Act, 1970 (5 of 1970 ). Explanation II : For the purpose of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. Explanation II : For the purpose of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. (2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie. "the proviso and the explanations to the proviso were added by the Amendment act, with effect from 1-1-1977. However, the operative portion of the provisions as contained in sub-sec. (1) and sub-sec. (2) clearly go to indicate that the discretion in the Court vested under the said provision is not only with regard to the rate of interest, but it is with regard to whether the interest should be awarded or not. The discretion is two-fold, the Court may award interest and may award such interest at such rate as the Court feels it reasonable to be awarded on the principal amount adjudged from the date of the suit till the date of the Decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6 per cent per annum as the Court deems it reasonable on such principal sum from the date of the Decree to the date of payment, or to such earlier date as the Court thinks fit. Where the interest is not awarded at all subsequent to the date of Decree the same shall be deemed to have refused by the Court as per sub-sec. (2 ). Even the Apex Court has observed in the case of State of Madhya Pradesh v. M/s. Nathabhai Desaibhai patel, reported in AIR 1972 SC 1545 that the question, whether the interest should be awarded on the principal amount claimed from the date of the suit, is within the discretion of the Court. The submission, therefore, that the Court has to award interest and the discretion is only with regard to rate of interest cannot be accepted. The submission, therefore, that the Court has to award interest and the discretion is only with regard to rate of interest cannot be accepted. ( 27 ) IT has then been submitted that there was a contract of interest as relected by the condition in the bills in question and, therefore, the learned trial Judge has erred in not awarding the interest prior to the date of the suit. Here also, in my opinion, the learned trial Judge has given cogent reasons as to why such interest could not be awarded to the plaintiff. It would be useful to reproduce the relevant paragraphs from the judgment of the learned trial Judge on this point also. It has been submitted that the learned trial Judge has erred in not exercising his discretion judicially. In my opinion, the learned trial Judge has quite judicially and appropriately exercised the discretion in not awarding the interest upto the date of decree. The excellence of the reasoning for not awarding the interest prior to the date of decree might be noticed from the portion of the judgment of the learned trial Judge which may now be excerpted :"this then takes me to the question of interest. The agreement or the contract, exh. 83, says that the defendants would be liable to pay twelve per cent interest on that amount of the bill if the amount of the bill is not paid within fifteen days from the receipt of the bill. The evidence very clearly shows that the bill Exh. 48 was, for the first time, received by the defendants on February 12, 1975; but soon after the receipt thereof, on February 21, 1975, the defendants through their Advocate sent a provisional reply and disputed the correctness of the bill. It must be remembered that in the bill as was sent by the plaintiffs to the defendants, the plaintiffs had not given credit for the amount of Rs. 23,000. 00 or even in that matter, the amount of Rs. 21,000. 00 towards the value of costs of construction and the bill purported to say that the defendants had to pay the plaintiffs, a total sum of Rs. 63,435. 29 ps. This was certainly not the correct statement. Even on the plaintiffs own showing, on the date the bill was sent, the defendants owed to them, in no case, more than rs. 63,435. 29 ps. This was certainly not the correct statement. Even on the plaintiffs own showing, on the date the bill was sent, the defendants owed to them, in no case, more than rs. 43,000/-, and yet, the claim in bill was for Rs. 63,000. 00 and odd. The defendants were, therefore, not liable to honour the bill or pay the value as stated therein. It was for the first time in their reply dated March 5, 1975 (Exh. 145) that the plaintiffs stated that they were giving credit of Rs. 21,000. 00 against the value of the bill. This reply dated March 5, 1975, would have reached the defendants, earliest, on March 6, 1975, and, without allowing even a fortnight to pass, the plaintiffs filed the present suit, on March 14, 1975. The plaintiffs, in my opinion, are, therefore, not entitled to claim any interest prior to the suit on the amount found due to them from the defendant. " ( 28 ) ( 29 ) ( 30 ) ( 31 ) ( 32 ) ( 33 ) ( 34 ) ( 35 ) ( 36 ) ( 37 ) ( 38 ) ( 39 ) ( 40 ) SO far as the interest pendent-lite is concerned, there also, I think, no interest should be allowed to the plaintiffs. The simple reason is that, as shown earlier, bill, Exh. 48, is an exaggerated bill. Though, admittedly, certain items of work had not been executed, e. g. , tiles polishing, and such other items, and certain shuter-doors had not been affixed, and, even though in certain area tiles had not been fixed and, yet, in the bill, Exh. 48, charges for all those items of work had been levied. It is only after the scrutiny by the Court that the correct amount due and payable by the defendants to the plaintiffs could under the circumstances, be ascertained. In that view of the matter, I think, even for pendency of the suit, no interest should be awarded to the plaintiffs, and, on the same line of reasoning, should be decided the question of costs. As the suit-claim is an exaggerated claim and is based upon a bill which admittedly contained certain wrong items, the parties should be left to bear their own costs. As the suit-claim is an exaggerated claim and is based upon a bill which admittedly contained certain wrong items, the parties should be left to bear their own costs. So far as interest, after the date of the Decree, I think, the usual rate of six per cent. from the date of Decree till payment, should prevail. " (Rest of the Judgment is not material for the Reports. .