JUDGMENT - Dr. CHANDRACHUD D.Y., J.:---The proceedings in this appeal arise out of the judgment and order dated 7th October, 1985 of the learned Civil Judge, Sr. Dn., Akola. By the impugned judgment and order the suit, which was instituted by the Central Bank of India, the appellant herein, in 1983, has been decreed in part to the extent of Rs. 1,18,357/-. The bank has been allowed interest at the rate of 7% per annum from the date of institution of the suit till realization. There is a direction that the respondent, who is the original defendant, shall pay the decretal amount in six equal yearly instalments, the first of which was due to fall on 1-2-1986. The appellant/bank is aggrieved by the judgment and decree of the trial Court. 2. The appellant instituted Special Civil Suit No. 69 of 1983 in the Court of the learned Civil Judge, Sr. Dn., Akola for the recovery of an amount of Rs. 3,56,281.97 together with interest at the rate of 18% per annum. A direction was also prayed for the sale of certain goods which were hypothecated in favour of the bank. Briefly stated, the case of the appellant before the trial Court was that the defendant was conducting a business of a printing press in the name of "Shri Mudranalaya Akola" as its sole proprietor. The case of the appellant was that on the request of the respondent two credit facilities were granted by the bank, the first being an open loan of Rs. 40,000/- on 31-7-1970 and the second being a term loan in the amount of Rs. 75,000/- on 9-7-1970. The case of the appellant was that the respondent had executed various documents including a demand promissory note and a deed of hypothecation in respect of the facilities which were extended by the bank. Thereafter, according to the appellant, the respondent had acknowledged his liability in respect of the loans which were sanctioned by the bank and had executed documents within the period of limitation acknowledging his liability to the bank. Similarly, various documents were executed towards renewal of the loans including demand promissory notes and instruments of hypothecation from time to time. Thereafter, according to the appellant, the respondent had acknowledged his liability in respect of the loans which were sanctioned by the bank and had executed documents within the period of limitation acknowledging his liability to the bank. Similarly, various documents were executed towards renewal of the loans including demand promissory notes and instruments of hypothecation from time to time. Para 5 of the plaint in which there is a reference to the documents executed by the respondent, refers to the execution of the demand promissory notes, hypothecation agreements, letters of declaration, letters of continuity, balance confirmation and letters admitting to the charging of interest by the bank as notified from time to time. The case of the appellant is that it extended its co-operation to the respondent and that the loans were accordingly renewed until 14-1-1982 and 4-6-1982 respectively by the execution of demand promissory notes and hypothecation agreements by which the respondent agreed to pay the principal amount due together with interest at the rate of 15% per annum. In paragraph 6 of the plaint there is a categoric averment that the respondent had utilized the amount which the bank advanced to him for the purpose of his business, but he had committed a breach of the agreement entitling the bank to recover its dues. According to the bank, the respondent had failed to pay the loans advanced despite notice. The amount which was due and, outstanding has been quantified in para 7 of the plaint as being Rs. 1,48,807.63 under the open loan facility and Rs. 1,82,183.75 under the term loan facility. There is a categoric averment in para 7 of the plaint that the balance which is due and payable up to the date of institution of the suit together with interest works out to Rs. 3,30,991.48 as per the extracts of the bank account of the borrower verified as required by the Bankers Books Evidence Act, 1891 inclusive of interest up to 30-8-1983. The total decretal claim together with notice charges was quantified at Rs. 3,56,281.97. 3. In the written statement which was filed on behalf of the respondent before the trial Court, the sanctioning and disbursement of the two loan facilities was not disputed. The total decretal claim together with notice charges was quantified at Rs. 3,56,281.97. 3. In the written statement which was filed on behalf of the respondent before the trial Court, the sanctioning and disbursement of the two loan facilities was not disputed. However, the defence that was set up was that the alleged renewal of the loan facility in the year 1982 was obtained by the plaintiff-bank from the defendant after the unit of the defendant was declared as sick and was taken up under a nursing programme. Therefore, the defence was that the rate of interest which was claimed by the bank, namely 15%, was not binding on the respondent-defendant. In para 5 of the written statement, the respondent has in fact sought to contend that the bank was not entitled to charge any interest from the year 1975 after his unit was declared as a sick undertaking and once the unit was taken under the nursing programme by the plaintiff-bank. In para 6 of the written statement, there is an averment to the effect that the respondent does not dispute the claim of the bank in the total amount of Rs. 1,22,889.58 which was due and payable as on 22-11-1975. In the circumstances, therefore, the defence was that no interest could have been charged by the appellant since the bank had placed the unit under the nursing programme from the year 1975. This, in sum and substance, is also the defence which has been urged in paragraph 7 in the form of a further plea. 4. Evidence was adduced before the trial Court on behalf of the appellant of its Branch Manager, Shri Gopal Yenaswami. The respondent stepped into the witness box in support of his defence and gave evidence. In the course of the evidence of the bank's witness, relevant documentary material was placed on the record. A reference will have to be made during the course of this judgment to the oral and documentary evidence at a subsequent stage. At this stage, it would suffice to state that with the assistance of the learned Counsel I have perused the pleadings, the oral and documentary material and that the record and proceedings have been examined. By the impugned judgment dated 7th October, 1985 the learned trial Judge has accepted the plea of the respondent that an amount of Rs. 1,22,889.58 was due and payable as on 22-11-1975. By the impugned judgment dated 7th October, 1985 the learned trial Judge has accepted the plea of the respondent that an amount of Rs. 1,22,889.58 was due and payable as on 22-11-1975. The learned trial Judge held that the bank would be entitled to charge interest thereon only at the rate of 4% per annum which, until June 1983, would work out to Rs. 35,468. The total amount recoverable by the bank was worked out at Rs. 1,58,357/-. The learned trial Judge held that an amount of Rs. 40,000/- has been recovered by the bank and hence the balance which is due and recoverable by the bank has been worked out to Rs. 1,18,357/-. Interest has been awarded at the rate of 7% per annum on the aforesaid amount from the date of suit until realization. The learned trial Judge has held that the bank had not filed a complete extract of its ledger account. More importantly, the trial Court was of the view that once the unit of the respondent was taken under the nursing programme, all the documents which were executed by the respondent in regard to the payment of interest must have been superceded and that there would be a novatio or fresh agreement between the parties. Consequently, the learned trial Judge was of the view that the appellant would not be entitled to charge interest at the commercial rate. The evidence of the respondent that he had been assured that he would be charged interest at the rate of 4% per annum has been accepted despite the absence of any material or any documentary evidence to that effect. The learned trial Judge was of the view that the doctrine of promissory estoppel was applicable and consequently it must be held that the bank could not charge interest more than 4% per annum on the outstanding dues. 5. In considering the main points of dispute between the parties, it must be, at the outset, noted that there is no dispute at all as regards the sanctioning or the disbursement of the loan facilities to the respondent by the appellant-bank. There is absolutely no dispute about the fact that in the year 1970 on open loan facility in the amount of Rs. 40,000/- and a term loan facility in the amount of Rs. 75,000/- was extended by the appellant to the respondent. There is absolutely no dispute about the fact that in the year 1970 on open loan facility in the amount of Rs. 40,000/- and a term loan facility in the amount of Rs. 75,000/- was extended by the appellant to the respondent. The documents which were executed from time to time by the respondent in consideration of the grant of these loan facilities have been detailed in paragraph 5 of the plaint in which there is an express reference to the fact that under the demand promissory note and hypothecation agreement which were executed by the respondent, interest was payable at the rate of 15% per annum. While dealing with the contents of paragraph 5 of the plaint, the only point of dispute that has been raised on behalf of the respondent is that his unit had been taken under the nursing programme of the appellant-bank and that consequently the rate of interest as charged was not binding upon him. In fact, the learned trial Judge has observed in paragraph 10 of the judgment that the only dispute is as regards the rate of interest between the parties. Moreover, as noted earlier, the defence which was set up by the respondent in paragraphs 5 and 7 of the written statement, was that no interest at all could have been charged by the appellant-bank after the year 1975 on the ground that the unit of the respondent was taken under the nursing programme by the bank in that year. In fact, that is the basis on which the respondent in paragraph 6 contends that he does not dispute the outstandings as on 22-11-1975 in the amount of Rs. 1,22,889.58. The learned trial Judge has obviously not accepted the case of the respondent to the effect that no interest whatsoever was payable after 22-11-1975 because the trial Court proceeded to award interest at the rate of 4% per annum in the total amount of Rs. 35,468/- as on June 1983. Therefore, the essential point to be considered would be the correctness of the basis on which the learned trial Judge concludes that the bank was entitled to charge only 4% interest and the finding which has been arrived at by the learned trial Judge that the earlier agreements in regard to the rate of interest of 15% would stand superceded. 6. 6. As noted earlier, there is no dispute about the fact that in the loan agreements that were executed by the respondent, interest at the rate of 15% per annum had been provided for. This was not disputed in the written statement. However, it must be noted that a faint attempt was made on behalf of the respondent at the hearing of the first appeal to contend that the demand promissory note dated 14-1-1982 (Exhibit 46) does not refer to any specific rate of interest since that part of the promissory note is blank. That submission of the learned Counsel will however not carry the defence any further because the promissory note dated 4-6-1982 (Exhibit 48) categorically refers to interest at the rate of 15% per annum together with monthly rests. Similarly, the deed of hypothecation (Exhibit 49) specifically provided in Clause (7) that compound interest at the rate of 15% per annum can be charged by the appellant-bank. 7. The entire case of the respondent was that his unit had been taken up in a nursing programme by the appellant-bank and that consequently no interest was liable to be charged in respect of the loan outstandings. The main document on the basis of which the aforesaid defence was taken up is a letter of the bank dated 15-2-1982 (Exhibit 63) by which the Branch Manager of the Akola Branch of the bank informed the respondent that the date of nursing of his sick unit was 22-5-1979. Though in the course of the examination-in-chief the Branch Manager had sought to state that the unit was not accepted for nursing, he has in paragraph 4 of the notes of cross-examination accepted that the unit was declared as a sick unit by the bank. His case was that the bank had agreed to take over the sick unit under the nursing programme provided that the formalities as stated by the bank were completed. The witness had stated that the bank had acted upon the nursing programme and that an amount of Rs. 72,000/- had been given to the unit for executing the printing orders which were placed by the bank. Therefore, what appears to have happened was that as a part of an effort to nurse the sick unit the bank from time to time placed printing orders upon the unit of the respondent. 72,000/- had been given to the unit for executing the printing orders which were placed by the bank. Therefore, what appears to have happened was that as a part of an effort to nurse the sick unit the bank from time to time placed printing orders upon the unit of the respondent. The witness for the bank, however, stated that the respondent had not completed all the necessary formalities of the bank and had not supplied the financial statements which was mandatory. In this connection, it would be necessary to note that several letters have been placed on record by the appellant-bank complaining of the conduct of the respondent in failing to supply the necessary financial data to the bank. For instance, in a latter dated 12-5-1982 the bank recorded that the respondent had despite several reminders failed to submit the balance-sheet and other papers which were required for extending the nursing programme to his unit. In his reply dated 15-5-1982 the respondent admitted his default in doing so. On 19-5-1982 (Exhibit 72) the bank complained of the fact that the respondent was avoiding to furnish the required papers. The Branch Manager, who deposed on behalf of the bank, categorically stated that the rate of interest would depend upon each individual case and it was not true that the interest would not exceed 4% per annum. Insofar as the respondent is concerned, his case in the course of the examination-in-chief was that at Bombay he was told that as the unit was accepted under the nursing programme, he was not required to pay interest more than 4% per annum. This was as vague a plea as it could have been. Neither the names of the officers who attended any such meeting or, for that matter, of any officer who gave the respondent such an assurance was adverted to. In the course of his cross-examination the respondent admitted that he had not taken any writting from the authority to the effect that interest would be charged at the rate of 4% per annum. In a case, such as the present, where moneys were extended under two loan facilities by a banking institution, it is most unlikely that there would be an oral understanding in regard to the charging of interest at the rate of 4% per annum. In a case, such as the present, where moneys were extended under two loan facilities by a banking institution, it is most unlikely that there would be an oral understanding in regard to the charging of interest at the rate of 4% per annum. There could particularly be no oral understanding in the light of the fact that the loan documents specifically record that interest would be charged at the rate of 15% per annum. The respondent has failed to establish his defence that no interest could be charged from 22-11-1975 or that interest was payable only at 4% per annum. 8. This would lead to a consideration of the reasons which have weighed with the learned trial Judge. Those reasons are principally contained in paragraph 11 of the impugned judgment. Each of the reasons which have weighed with the learned trial Judge would warrant the conclusion that the learned trial Judge has fallen in serious error in the present case. The learned trial Judge relied upon the circumstance that the unit had been placed under a nursing programme with effect from 22-5-1979. That however is not sufficient to establish the case of the respondent that interest would be charged only at the rate of 4% per annum. The learned trial Judge has held that if the respondent had not been able to pay the amount due, the bank could have filed the suit in the year 1979 itself and there was no necessity to wait until 1983. This part of the reasoning is, to say the least, completely fallacious. Similarly, the learned trial Judge has held that the promissory notes, which were executed in the year 1982, were when the unit was under the nursing programme. The learned trial Judge has held that the respondent was required to sign the promissory notes (as asked by the bank authorities). Here again, the evidence on the record is completely lacking in any particulars and even the barest of particulars are absent to establish any case that an exercise of coercion by the bank had led to the signing of the loan documents by the respondent. Here again, the evidence on the record is completely lacking in any particulars and even the barest of particulars are absent to establish any case that an exercise of coercion by the bank had led to the signing of the loan documents by the respondent. The learned trial Judge has held that since the unit was under a nursing programme, the business of the respondent was under the control of the bank and the agreement in regard to interest that was contained in the loan documents must have given way to a new agreement. The learned trial Judge has held that the earlier agreement must therefore have been cancelled by a novatio. In arriving at this conclusion, the learned trial Judge has placed reliance also on the doctrine of promissory estoppel. In my view, the learned trial Judge has made a material error in holding that there was a novatio or subsequent agreement in regard to the charging to interest either at 4% per annum or otherwise. The case of the respondent was that no interest was at all chargeable after 22-11-1975. Therefore, there was no question of the evidence of the respondent being accepted to the effect that interest would be chargeable only at the rate of 4% per annum. The learned trial Judge has failed to consider the admission of the respondent in the course of his cross-examination and there was no documentary evidence or material to show that the interest at the rate of 4% per annum had been agreed to. The reliance placed by the learned trial Judge on the doctrine of promissory estoppel is equally erroneous. There was neither any pleading nor proof to that effect. 9. The Branch Manager, who gave evidence on behalf of the appellant-bank, produced and proved the documents Exhibits 46, 47, 48 and 49 which were executed by the respondent in consideration for the loan transactions. Similarly, the Branch Manager produced at Exhibit 50 an extract of the Khata of the respondent in respect of both the accounts. The only cross-examination in regard to the accounts which were produced by the Branch Manager was that the accounts had not been filed from the beginning but were filed from 13-10-1981 for the first account and from 28-12-1981 for the second account. The only cross-examination in regard to the accounts which were produced by the Branch Manager was that the accounts had not been filed from the beginning but were filed from 13-10-1981 for the first account and from 28-12-1981 for the second account. There was absolutely no cross-examination in regard to the authenticity of the accounts nor was any suggestion made to the witness that the amounts which had been repaid had not been duly accounted for. It would also be material to note that in compliance with the Bankers Books Evidence Act, 1891 a certificate dated 8-10-1985 (Exhibit 83) was filed before the learned trial Judge. The certificate was signed by the Accountant and the Branch Manager of the appellant. The certifying authorities have stated that they had seen the copies of the extract of accounts of the respondent filed in the suit. The certification was to the effect that what had been filed was a true copy of the entry, that the entry was contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and such book is still in the custody of the bank. In my view, the certification was fully in compliance of the provisions of section 4 of the Bankers' Book Evidence Act, 1891. The learned trial Judge has noted that the certificate "does not bear the required certificate of the manager according to the Banking Act which is mandatory." This finding is inexplicable because the certificate does fulfil all the requirements under law. It is true that the certificate was placed on the record at a somewhat belated stage after the arguments were heard but no prejudice has been caused. There is no application for summoning the certifying authorities for cross-examination. In the circumstances, I am of the view that undue emphasis ought not to be placed on the technical aspect that the certificate was furnished at a belated stage. 10. Having regard to the facts and circumstances of the case, I am of the view that the judgment and order of the learned trial Judge is clearly unsustainable. The learned trial Judge has erroneously proceeded to accept the contention of the respondent that an amount of Rs. 1,22,889.58 that was due and payable as on 22-11-1975 is only recoverable. 10. Having regard to the facts and circumstances of the case, I am of the view that the judgment and order of the learned trial Judge is clearly unsustainable. The learned trial Judge has erroneously proceeded to accept the contention of the respondent that an amount of Rs. 1,22,889.58 that was due and payable as on 22-11-1975 is only recoverable. Similarly, the finding that the appellant would be entitled to charge interest only at the rate of 4% per annum thereon from November 1975 is completely baseless and erroneous. In my view, the learned trial Judge has fallen in a serious error in rejecting the claim of the appellant-bank. The appellant is entitled to succeed. In my view, therefore, the order of the learned trial Judge dated 7th October, 1985 shall have to be quashed and set aside. The appellant will be entitled to a decree in the total amount of Rs. 3,30,991.48. The appellant will be entitled to further interest at the rate of 15% per annum from the date of the institution of the suit until the date of decree and to interest at the rate of 12% from the date of decree until payment or realization. The first appeal shall stand allowed in the aforesaid terms. Appeal allowed. -----