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2000 DIGILAW 103 (GAU)

Gautam Nandi and another v. State Bank of India

2000-03-10

D.BISWAS, M.L.SINGHAL

body2000
Judgement BISWAS, J. :- This appeal under Section 96 of the Code of Civil Procedure is directed against the judgement dated 22-12-94, passed in Title Suit (Mortg.) No. 1 of 1994 and the decree dated 2-1-1995 drawn thereon by the learned Additional District Judge, Belonia, South Tripura. 2. The defendant-appellant No. 1 took a sum of Rs. 1,75,000/- as loan from the respondent Bank refundable with interest @ 15% per annum by mortgaging the properties mentioned in the schedule to the plaint. The defendant-appellant failed to liquidate the entire loan amount along with the interest and this led the respondent Bank to institute the suit for a decree for realisation of a sum of Rs. 2,25,017/- payable at the time of institution of the suit with declaration of charge over the properties mentioned in Schedule A and B to the plaint. On conclusion of trial, the learned Additional District Judge passed the judgment and decree as aforesaid with a direction to the appellants to liquidate the decretal amount within a period of six months on condition that in case of default the plaintiff-respondent would be entitled to interest at the rate of 15% per annum. Being aggrieved thereby, the defendant-appellants have preferred this appeal on various grounds against the preliminary decree as enumerated in the Memorandum of Appeal. 3. We have heard Mr. A. C. Bhowmik, learned counsel for the defendant-appellants as well as Mr. S. Deb, learned senior counsel for the respondent Bank. 4. We have carefully examined the impugned judgment and decree, the respective pleadings of the parties and the evidence - both oral and documentary available on record. Exbt. 1 is the agreement for cash credit facility to the tune of Rs.1,75,000/- duly executed by the appellants, which shows that the appellants were allowed the cash credit facility as alleged. Exbt. 2 is the agreement signed by the guarantor, Smti Gauri Nandi. Exbt. 3 is the promissory note for Rs. 1,75,000/- executed by the appellant No. 1, Shri Gautam Nandi, proprietor of M/s. K. S. N. Bricks. Exbts. 4 to 8 are other other relevant documents including the deed of mortgage executed by the appellants. These documents read with the evidence of P.W. 1, Shri Swapan Kumar Podder, Field Officer of the respondent Bank prove the case of the respondent Bank that as on 22-11-93 the appellant were on default to the tune of Rs. 2,25,017/- only. Exbts. 4 to 8 are other other relevant documents including the deed of mortgage executed by the appellants. These documents read with the evidence of P.W. 1, Shri Swapan Kumar Podder, Field Officer of the respondent Bank prove the case of the respondent Bank that as on 22-11-93 the appellant were on default to the tune of Rs. 2,25,017/- only. The amount claimed by the respondent Bank has not been disputed by the defendant-appellants, P.W. 1 was not cross-examined on the quantum of amount payable. However, in the Memo of Appeal, the appellants have taken the plea that the respondent Bank authorities have not filed proper statement of accounts. Their only plea before the Court below was that the respondent Bank had charged interest at an exorbitant rate. 5. Mr. Bhowmik, learned counsel for the appellants did not dispute the liability of the appellants to pay the sum of Rupees 2,25,017/- inclusive of interest as on 22-11-1993. His only contention is that the appellants had to suffer loss in their business because of abnormal situation prevailing in the State due to insurgency and on that account prayed for reducing the rate of interest. 6. Mr. Deb, learned senior counsel for the respondent Bank opposing the above contention submitted that the respondent Bank is entitled to realise interest at the contractual rate till the date of decree and thereafter at such rate as the Court may in its discretion think it just and reasonable. 7. Our attention has been drawn to a decision of the Supreme Court in N. M. Veerappa v. Canara Bank, (1998) 2 SCC 317 : ( AIR 1998 SC 1101 ) where the Supreme Court interpreted the provisions of Order 34 Rule 11 C.P.C. as amended in 1929 and 1956. Relying the provisions of law as interpreted undisputedly suggest that the Bank is entitled to interest at the contractual rate till the date of decree that is @ 15% per annum and for the interregnum period between the date of decree and realisation at such rate the Court may prescribe in its discretion. 8. The learned Additional District Judge did not award any pendente lite interest in favour of the respondent Bank considering that the appellants by that time had paid a substantial amount to liquidate the loan. This is obviously against the provisions of law as embodied in Order 34 Rule 11 C.P.C. referred to above. 8. The learned Additional District Judge did not award any pendente lite interest in favour of the respondent Bank considering that the appellants by that time had paid a substantial amount to liquidate the loan. This is obviously against the provisions of law as embodied in Order 34 Rule 11 C.P.C. referred to above. But the respondent Bank has not preferred any appeal against this part of the decree which is obviously against them nor has filed any cross-objection in the form of a Memorandum as is required under the provisions of Order 41, Rule 22 (2) C.P.C. The filing of cross-objection is necessary only when the respondents want to take any objection to the decree which they could have taken by way of appeal. Since the rejection of interest for the period during pendency of the suit based on certain finding is appealable, in our considered opinion, the respondent Bank ought to have filed cross-objection without which this Court is not authorised to interfere with the order of rejection of interest. The learned trial Judge has allowed six months time to the appellants to pay the decretal amount, on default to pay interest at the rate of 15% per annum. This shows that on payment of the decretal amount within the stipulated period, the appellants were not required to pay any interest. This is also against the provisions of law. It may be mentioned here that the appellants have paid refunded amount exceeding the principal amount borrowed by them. 9. In the circumstances, we are of the considered opinion that the impugned judgement and decree warrant no interference. Simultaneously we hold that the omission on the part of the learned trial judge in awarding interest pendente lite cannot be helped for want of cross-objection. We, therefore, propose to dispose of the appeal with modification to the extent that the appellants shall be liable to pay interest at the rate of 10% per annum with effect from the date of decree till realisation instead of 15% as awarded by the learned Court below as we are of the view that the future interest at the rate of 10% per annum would be just and proper in the given circumstances of the case. 10. The appeal is accordingly disposed of with no order as to costs. Ordered accordingly.