State Bank of India v. Ganesh Vishvamber Punde & others
2004-04-02
S.T.KHARCHE
body2004
DigiLaw.ai
JUDGMENT - KHARCHE S.T., J.:-This appeal has been filed by the State Bank of India being aggrieved by the judgment and decree dated 19-9-1987 passed by the Civil Judge, Sr. Dn., in Special Civil Suit No. 36 of 1986, whereby the suit of the appellant/plaintiff was decreed for recovery of the amount of Rs. 64,317=34 including interest on admission of defendant No. 1/borrower and defendants Nos. 2 and 3 as guarantors and also directing payment of future interest at the rate of 9% per annum on the decretal amount from the date of the suit till realisation. 2. Brief facts are required to be stated as under : The plaintiff/State Bank of India instituted a suit for recovery of Rs. 64,317.37 inclusive of interest against the borrower and the guarantors on the contentions that the defendant No. 1 borrowed amount of Rs. 59,000/- which was disbursed to him on hypothecation of vehicle, i.e. Bajaj Matador Pick up van, on 23-1-1982. The defendant No. 1 had executed the requisite documents in favour of the bank and it was agreed that the rate of interest would be 12.50% with quarterly rests and also agreed to pay interest as per the rates prevailing therein as fixed by Reserve Bank of India from time to time. 3. The defendants did not contest the suit and filed pursis (Ex. 25) and withdrew all their contentions mentioned in the written statement and agreed to repay the decretal amount by way of instalments. The plaintiff/bank had no objection to grant instalments and, therefore, the trial Court granted decree for recovery of the loan amount with future interest at the rate of 9% per annum from the date of the suit till realisation. This judgment and decree granting future interest at the rate of 9 % instead of granting at the rate of 15% per annum is under challenge in this appeal. 4. Mr. Kukdey, learned Counsel, for the plaintiff/bank contended that the decree has been passed by the trial Court on admission by the defendants by filing pursis (Ex. 25) wherein the entire claim is admitted. He contended that there was no qualification mentioned in the pursis about the payment of future interest.
4. Mr. Kukdey, learned Counsel, for the plaintiff/bank contended that the decree has been passed by the trial Court on admission by the defendants by filing pursis (Ex. 25) wherein the entire claim is admitted. He contended that there was no qualification mentioned in the pursis about the payment of future interest. He contended that the defendant No. 1 borrowed the loan for the purchase of matador vehicle which was a commercial transaction and the defendants had executed the documents in favour of the plaintiff/bank mentioning therein that they agree to pay interest at the rate which would be fixed by the Reserve Bank of India from time to time and also at the rate of 12.50% with quarterly rest which was computed and the total outstanding dues were to the extent of Rs. 64,317.34 on the date of the suit. He contended that the trial Court has committed an error in not granting future interest inspite of specific admission by the defendants and, therefore, the impugned order passed by the trial Court cannot be sustained in law. 5. None appeared for the defendants, though served. 6. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the appellant. The trial Court observed in the judgment that defendant No. 1 is the borrower and defendants Nos. 2 and 3 are the guarantors and they admitted plaintiffs claim of Rs. 64,317.34 which was inclusive of interest vide pursis (Ex. 25) and therefore the bank was entitled to recover the said amount from the defendants. The trial Court further observed that defendant No. 1 is educated unemployed and had taken loan from the plaintiff/bank under Educated Unemployed Scheme through Vidarbha Development Corporation and since the said matador in question which was purchased for the business was not in running condition and taking into consideration the soaring up of the prices of commodities, the defendants were directed to pay the decretal amount by way of instalments. It is true that the trial Court did not mention anything about the entitlement of the plaintiff/bank for recovery of the future interest. This must be because nothing has been mentioned in the pursis (Ex. 25) as to what would be the rate of future interest. It is settled law that grant of future interest under section 34 of the Code of Civil Procedure is a discretionary relief.
This must be because nothing has been mentioned in the pursis (Ex. 25) as to what would be the rate of future interest. It is settled law that grant of future interest under section 34 of the Code of Civil Procedure is a discretionary relief. Section 34 reads thus : "(1) Where an 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.) (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 therefore shall not lie." The words "with further interest at such rate not exceeding six per cent per annum the Court deems reasonable on such principal sum" have been substituted by Act No. 66 of 1956 which came into force with effect from 1-1-1957.
The words provide 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 are added by Act 104 of 1976 which came into force with effect from 1-2-1977. Simple reading of the aforesaid provision of law would reveal that the Court has discretion to grant further interest at such rate not exceeding 6% 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 and the rate of interest may exceed 6% if it is a commercial transaction but the grant of interest was not to exceed the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. It is obvious that the discretion has to be exercised by the Court in a judicious manner while fixing the liability regarding payment of past or future interest. 7. In the present case, the pursis (Ex. 25) though admits the suit claim, it did not follow that the defendants also admitted the payment of future interest at the rate of 15% per annum. Simply because the plaintiff/bank has made prayer in the plaint that they are entitled to recover future interest at the rate of 15%, it did not follow that the pursis (Ex. 25) can be pressed into service to say that the defendants admitted the payment of future interest. In that view of the matter, when the trial Court has used its discretion in a judicious manner it would be obvious that there is no reason for this Court to take a different view than the one taken by the trial Court while awarding future interest at the rate of 9% per annum from the date of the suit till realisation. Therefore, it is obvious that there is no merit in this appeal which is liable to be dismissed. In the result, this appeal stands dismissed with no costs. Appeal dismissed. -----