Judgment 1. This Second Appeal is focused by the Plaintiff, animadverting upon the Judgment and decree dated 26. 2007 passed by the learned III Additional Judge, City Civil Court, Chennai in A.S. No.609 of 2003. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking in the party array before the Trial Court. 2. The Plaintiff filed the Suit O.S.No.6188 of 2003 seeking redemption of mortgage and permanent injunction as against the defendants. The defendant entered appearance and filed the written statement resisting the Suit. 3. The Trial Court framed the relevant issues. During Trial, the Plaintiff examined himself as P.W.1 and Exs.A1 to A10 were marked. On behalf of the defendants, one S. Nagabhushanam was examined and Exs.B1 to B26 was marked. 4. Ultimately the Trial Court decreed the Suit, as against which, the First Appeal A.S.No.609 of 2006 was filed by the plaintiff for nothing but to be dismissed by the Lower Appellate Court confirming the judgment and decree of the Trial Court. Being disconcerted and aggrieved by the judgment and decree of both the Courts below, the plaintiff has filed this Second Appeal on various grounds and also setting out the alleged substantial questions of law. 5. After hearing the learned counsel on both the sides for sometime, the following substantial questions of law were framed: (i) Whether the decree passed by the Trial Court and as confirmed by the First Appellate Court is per se in accordance with Order 34, Rule 7 of the Code of Civil Procedure? (ii) Whether the simple interest of 30% awarded by the Trial Court is illegal and impermissible? and the learned counsel on both sides advanced arguments on the above. 6. A deep poring over and perusal of the relevant records including the judgments of both the Courts below and also consideration of the arguments as put forth on either side, would display and demonstrate that the plaintiff filed the Suit for redemption and permanent injunction on the ground that he borrowed a loan of Rs.3,00,000/- (Rupees three lakhs only) from the first defendant on 28. 1999 and in consideration of the same, the plaintiff executed a simple mortgage, mortgaging the property described in the schedule of the Plaint. Accordingly, the plaintiff also made part payment to the first defendant, who did not maintain proper accounts. 1999 and in consideration of the same, the plaintiff executed a simple mortgage, mortgaging the property described in the schedule of the Plaint. Accordingly, the plaintiff also made part payment to the first defendant, who did not maintain proper accounts. Ultimately, the plaintiff filed the Suit for redemption with the place that only a sum of Rs.1,17,380/- was yet to be paid; whereupon the first defendant entered appearance and contended that the calculation furnished by the plaintiff in the Plaint was not correct and accordingly, he furnished his own calculation. Ultimately, the Trial Court decreed the Suit as under: “TAMIL” As against which Appeal was filed by the Plaintiff for nothing but to be dismissed by the First Appellate Court; whereupon this Second Appeal has come before this Court. 7. The learned counsel for the plaintiff/second appellant would advance his argument to the effect that very decree passed by the Trial Court itself is erroneous as it is not an executable decree at all; the 30% interest awarded by the Trial Court and as confirmed by the First Appellant Court is against the well settled proposition of law and it should not be to that much extent and as such awarding of interest is usurious or in violation of the Usurious Loan Act and the Money Lenders Act. Accordingly, he prayed for interference by this Court. 8. Whereas the learned counsel for the first defendant/first respondent would advance his argument to the effect that the loan borrowed by the plaintiff from the defendant was for commercial purpose and in such a case, awarding of 30% simple interest per annum by no stretch of imagination may be labeled or termed as exorbitant or usurious or in violation of the provisions of the Usurious Loans Act or the Money Lenders Act. Accordingly, he prayed for the dismissal of the Second Appeal. 9. At this Juncture, I would like to observe that the very decree passed by the Lower Court as correctly highlighted and spotlighted by the learned counsel for the plaintiff is erroneous as it is not in accordance with Order 34, Rule 7 of the Code of Civil Procedure and Form 7 of Appendix D of the Code of Civil Procedure. As such, on that ground itself, the decree passed by the Trial Court and confirmed by the Lower Appellate Court has to be set aside. 10. As such, on that ground itself, the decree passed by the Trial Court and confirmed by the Lower Appellate Court has to be set aside. 10. Now the core question arises as what should be the quantum of interest. 11. The learned counsel for the first defendant has invited the attention of this Court to the relevant portion of the judgment of the Trial Court, viz., the evidence of PW1 during cross-examination and highlighted that the plaintiff himself categorically and candidly without munching words admitted that the loan borrowed was for a contract business purpose and in such a case, he cannot veer round and take a plea quite antithetical to what he committed himself during cross-examination by deposing that the loan was for his contract purpose. 12. I could see considerable force in the submission made by the learned counsel for the first defendant that the loan borrowed was for commercial purpose as contract work comes well within the definition of "business" and thereby II Explanation to Section 34 of the Code of Civil Procedure also is attracted. 13. Now the core question arises as to whether charging of 30% simple interest on such loan amount could ever be construed as usurious or in violation of Usurious Loan Act or the Money Lenders Act. 14. In such a case, the learned counsel for the plaintiff would argue that at the most 18% simple interest for such loan would be just and proper and not more than that. The learned counsel for the plaintiff also cited various decisions. However, the learned counsel for the first defendant would correctly point out that those decisions are relating to compound interest, but here, the Plaintiff is claiming only simple interest. 15. The learned counsel for the plaintiff cited the decision of the Honble Apex Court C.K. Sasankan v. The Dhanalakshmi Bank Ltd., 2009 (2) CTC 381. The facts involved in this case and the cited case are one and the same. Certain excerpts from the decision would run thus: "3. The Appellant is the son of late C.V. Kunjikuttan, who was carrying on business as a Civil Contractor, said C.V. Kunjikuttan carried on business of contracts in his individual capacity. He died on 8th September, 1989 and on his demise, the business was taken over by his legal heirs. Certain excerpts from the decision would run thus: "3. The Appellant is the son of late C.V. Kunjikuttan, who was carrying on business as a Civil Contractor, said C.V. Kunjikuttan carried on business of contracts in his individual capacity. He died on 8th September, 1989 and on his demise, the business was taken over by his legal heirs. While C.V. Kunjikuttan was alive he had availed of certain facilities from Dhanalakshmi Bank Ltd., Cherthala Branch, Alappuzha District - respondent herein (for short the "Bank"). The respondent is a scheduled Bank and has its principal place of business at Thrissur in Kerala and Branches in various other place. C.V. Kunjikuttan approached the respondent Bank in 1973 for sanction of an over draft financial facility. The Bank sanctioned him an overdraft facility of Rs.3 lakh. The overdraft facility allowed to C.V. Kunjikuttan was secured by security of immovable property, which was collateral security. On 30.10.1980, the Bank granted an enhanced overdraft facility of Rs.9 lakh which was secured by late C.V. Kunjikuttan and his children including the appellant herein. 7. In order to appreciate the aforesaid contention, we are required to consider the scope and ambit of Section 34 of the Code which get attracted in the instant case. The provisions of Section 34 of the Code are reproduced here in below: “34. Interest.— (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, the rate at which moneys are lent or advanced by nationalized 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 purposes 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." 8. The quantum and rate of interest which the appellant in the present case is entitled to would be in accordance with the provisions of Section 34 of the Code. According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that although the amount of interest from the date of filing of the Suit till the date of the decree and thereafter till realization is in the discretion of the Court as is confirmed by the use of the word "may" but such discretion has to be exercised by the Court properly, reasonably and on sound legal principles and not arbitrarily and while doing so the Court is also to consider the parameter, scope and ambit of Section 34 of Code. 9. The aforesaid scope and ambit of Section 34 of the Code has been the subject of discussion in many cases of this Court. We are inclined to refer to the decision in Clariant International Ltd. v. Securities & Exchange Board of India, 2004 (8) SCC 524 , where it was held by this Court that the interest can be awarded in terms of an agreement or statutory provisions and it can also be awarded by reason of usage or trade having the force of law or on equitable considerations but the same cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefore, for which a written demand is mandatory. It was further held that in absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercised of such equitable equitable jurisdiction. It was also held that in ascertaining the rate of interest the Courts of law can take judicial notice of both inflation as also fall in Bank rate of interest. The Bank rate of interest both for commercial purposes and other purposes has been the subject-matter of statutory provisions as also the judge-made laws. In the said case reference was made to the decisions in Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 (3) CTC 170 (SC): 2001 (2) SCC 9 ; H.S. Ahammed Hussain v. Irfan Ahammed, 2002 (6) SCC 52 ; and United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 (6) SCC 281 , and it was observed that even in cases of victims of motor vehicle accidents, the Courts have upon taking note of the fall in the rate of interest held 9% interest to be reasonable. Direction to pay such rate of interest is also found to be reasonable and fair as the plaintiff was deprived to utilize and roll its money in commercial transaction and kept out of it due to wrongful withholding of the same by the defendant. 10. Considering the facts and circumstances of the present case, we find that the rate of interest as awarded for pendent elite and future interest is exorbitant and thus we direct that pendente lite and future interest at the rate of 9% shall be paid which is found to be just, proper and reasonable." A deep reading of the said judgment would highlight and spotlight that the fact involved in that judgment is to the effect that interest at 25% per annum with quarterly rests was awarded, which clearly exemplifies that awarding 30% simple interest up to the filling of the Suit by no stretch of imagination could be treated as usurious and I could see considerable force in the submission made by the learned counsel for the first defendant. 16. On the other hand, the learned counsel for the plaintiffs contention that 18% simple interest would be most appropriate would not find support from the cited decision of the Honble Apex Court. 16. On the other hand, the learned counsel for the plaintiffs contention that 18% simple interest would be most appropriate would not find support from the cited decision of the Honble Apex Court. Put simply, the plaintiff cannot choose only the favourable portions of the precedent in favour of the plaintiff and leave the remaining unfavourable portion of the same precedent, which is in favour of the defendant. 17. Accordingly, if viewed, awarding of 30% simple interest up to the date of filing of the Suit and 9% simple interest from the date of filing of the Suit till recovery would be reasonable. Accordingly, the accounts shall be taken as per Order 34, Rule 7 of the Code of Civil Procedure. 18. In such a view of the matter, the judgments and decrees of both the Courts below are set aside and the matter is remitted back to the Trial Court with the above said findings, for proceeding as per Order 34, Rule 7 of the Code of Civil Procedure and the parties shall appear before the Trial Court on 6. 2009 and accordingly, (i) the substantial question of law No.1 is decided to the effect that the decree passed by the Trial Court and as confirmed by the First Appellate Court is illegal and not in accordance with law. (ii) the substantial question of law No.2 is decided to the effect that the rate of interest awarded by the Trial Court as confirmed by the First Appellate Court is modified to the following effect: "30% simple interest up to the date of filing of the Suit and 9% simple interest from the date of filing of the Suit till recovery." 19. This Second Appeal is disposed of accordingly, No costs. Consequently, the connected Miscellaneous Petition is closed.