JUDGMENT : 1. Heard learned counsel for the appellant. No one appears for the respondent today. The matter was adjourned by way of last indulgence on the previous date taking note of the fact that the respondent had not appeared in the matter on the previous dates also. 2. The Appeal is directed against the judgment dated 25.06.1998 and decree dated 12.03.1999 passed in Title (Mortgage) Suit No. 07/34 of 1991-96 by the learned Sub Judge-V, Jamshedpur. 3. The appellant is the plaintiff, who had preferred the Title (Mortgage) Suit for recovery of Rs. 3,12,384.87/- together with interest @ 16.5 % per annum with quarterly rests for the pendency of the suit and for future period till realization. It had further prayed for a preliminary decree for equitable mortgage to enforce the security mortgaged to the plaintiff-Bank. Cost of litigation was also prayed for. 4. The brief case of the plaintiff-bank as set up before the learned Trial Court is as under :- Defendant nos. 1 to 3 were running a business of construction in the Swaranrekha Prject at Chandil. They had a current account in the plaintiff-bank since 10.10.1986. The defendants had a cash credit facility up to the limit of Rs. 1,25,000/-. The cash credit facility was approved on 24.09.1987 and thereafter on 16.09.1987 was extended to the limit of Rs. 3,00,000/-. To avail the facilities, defendants executed certain documents in favour of the plaintiff-bank i.e. demand promissory note, delivery letter, a letter of undertaking and agreement of hypothetication of goods and permission to mortgage by M/s Tata Iron & Steel Company Ltd. In addition to above, the defendant nos. 2 and 3 created an equitable mortgage of some landed property including their residential house at Sonari, detailed in the schedule to the plaint in favour of the plaintiff-bank. They also mortgaged a fix deposit of Rs. 1,00,000/- in favour of the plaintiff-bank. Defendant no. 4 was the proforma defendant, who gave permission to mortgage the landed property of the defendant. The defendants continue to enjoy cash credit facility all along for their business, but did not repay the loan regularly to the plaintiff-bank. Despite clear notice, they failed and neglected to repay the loan. Legal notice was sent on 27.10.1990 making it clear that if they failed to repay the dues, legal consequences would be resorted. The defendants continue to enjoy cash credit facility all along for their business, but did not repay the loan regularly to the plaintiff-bank. Despite clear notice, they failed and neglected to repay the loan. Legal notice was sent on 27.10.1990 making it clear that if they failed to repay the dues, legal consequences would be resorted. Since the defendants did not repay the amount, plaintiff-bank preferred the instant suit for the relief prayed for. 5. The defendants appeared and set up their case through a written statement. According to the defendants, defendant nos. 2 and 3 are the partner of defendant no. 1. The cash credit facility up to the limit of Rs. 3,00,000/- was also admitted. They raised an objection that the fixed deposit of Rs. 1,00,000/- was for three years, which has been adjusted by the plaintiff-bank without informing them. They denied the execution of any paper for continuing guarantee. They also questioned the maintenance of the cash credit account. The defendants also admitted that necessary documents have been executed for creation of equitable mortgage against the loan. According to them, BHPC, with whom they were under contract for certain construction work, had withheld their bills and the matter was pending in arbitration. That is why their businesses had suffered. It was alleged that plaintiff-bank has neither released the fixed deposit nor granted any further cash credit facility. According to the defendants, they always wanted to pay the loan regularly, but could not repay the same. They have responded to the legal notices and raised objection upon computation of the interest. The defendants expressed their intention to pay the loan in easy installment not in lump sum. They also prayed for sympathetic consideration for levy of simple interest instead of compound interest. 6. Defendant, Mahesh Jha had filed a written statement separately, but except for certain minor differences, he contended that the plaintiff bank had filed the present suit against M/s Sujeet Company & Ltd. instead of Sujeet & Company. The suit is not against the right person. 7. The following issues were framed by the learned Trial Court:- (i) Is the suit maintainable in its present form ? (ii) Is the suit barred by law of limitation, waiver, estoppel and acquiescence ? (iii) Whether there is any cause of action to the plaintiff bank to bring the present suit ? (iv) Whether the defendant nos. 7. The following issues were framed by the learned Trial Court:- (i) Is the suit maintainable in its present form ? (ii) Is the suit barred by law of limitation, waiver, estoppel and acquiescence ? (iii) Whether there is any cause of action to the plaintiff bank to bring the present suit ? (iv) Whether the defendant nos. 1 to 3 had been granted Cash Credit Facility to the limit of Rs. 3,00,000/- from the plaintiff bank ? (v) Whether the plaintiff bank is entitled for a decree of Rs. 3,12, 384.87 Paise ? (vi) Whether the plaintiff is entitled for a decree of interest pendente lite and future till realisation at the rate of 16.5 % per annum with quarterly rests ? (vii) Whether the plaintiff bank is entitled for a mortgage decree to enforce the security mortgaged ? (viii) Is the plaintiff entitled for any relief or reliefs as prayed for ? 8. Plaintiff examined four witnesses while one witness was examined on behalf of the defendants. Plaintiff also produced various documents, which were marked as Exhibits such as : Ext. 1 – is the legal notice, Exts. 2 & Ext. 2/a – are postal registration receipts, Exts. 3 & 3/a are postal A/D, Ext. 4–is plaint, Ext. 4/a–is Signature of Branch Manager on plaint, Ext. 5–is loan application, Ext. 6–is Demand Promissory Note, Ext. 7–is Demand Promissory Delivery Notice, Ext. 8–is Form-A, Ext. 9–is P.D.R.B, Ext. 6/a–is another Demand Promissory Note, Ext. 7/a–is Demand Promissory Delivery, Ext. 9–is P.D.R., Ext. 10- is Form-'K', Ext. 10/a–is Form- K Special, Ext. 11- is Form-L, Ext. 11/a-is another Form-L, Ext. 12-is Bank notice, Ext. 13 is statement of Accounts and Ext. 14- is arrangement letter. 9. Issue nos. (iv), (v), (vi), (vii) and (viii) were considered together and answered in the following manner :- “10. From the pleadings of the parties, and the evidence documentary and oral, it appears that the defendants nos. 1 to 3 had been granted a Cash Credit Facility to the limit of Rs. 3,00,000/- from the plaintiff bank. It also appears that the defendant did not repay the loan regularly and hence a dues of Rs. 3,12,384.87/- came on the date of the filing of the suit. The case of giving and taking of loan is established. The claim of Rs. 3,12,384.87 paise is also affirmed.” 10. 3,00,000/- from the plaintiff bank. It also appears that the defendant did not repay the loan regularly and hence a dues of Rs. 3,12,384.87/- came on the date of the filing of the suit. The case of giving and taking of loan is established. The claim of Rs. 3,12,384.87 paise is also affirmed.” 10. According to the learned Trial Court, the defendants failed to repay the loan regularly in respect of cash credit facilities extended to them up to Rs. 3, 00, 000/- which has resulted in the outstanding dues of Rs. 3,12,384.87 Paise. The giving and taking of loan was established and the claim was also affirmed. The Learned Trial Court thereafter proceeded to consider the request of the defendants for leniency in the matter of interest as well as in repayment of loan through easy installment. After discussing the stand of the defendants in relation to their contractual business with M/s. BHPC and that certain outstanding bills raised against the BHPC Ltd. which were subject matter of arbitration, it came to a finding that the rate of interest should be reduced and facility of easy installment to repay the loan should be extended to the defendants in the interest of justice. Since plaintiff bank is not an individual rather a nationalized bank, therefore, the learned Trial Court ordered the plaintiff-bank to recover the outstanding dues of Rs. 3,12,384.87 Paise together with simple interest at the rate of 6% per annum for pendente lite and future period till realization. A mortgage preliminary decree was also passed in favour of the bank giving a right to put the property in auction in case of non payment of the decreetal amount. Defendants were directed to repay the loan on easy installment of Rs. 2,000/- per month from August, 1998. They were further directed not to make default consecutively three times in such payments of installment. 11. Learned counsel for the appellant has straightway questioned the direction issued in the concluding part of the impugned judgment by the learned Trial Court. Learned counsel Mr. Rajesh Kumar appearing for the appellant-bank submit that when the factum of loan was established and the claim of Rs. 11. Learned counsel for the appellant has straightway questioned the direction issued in the concluding part of the impugned judgment by the learned Trial Court. Learned counsel Mr. Rajesh Kumar appearing for the appellant-bank submit that when the factum of loan was established and the claim of Rs. 3, 12, 384.87 Paise was also affirmed, the learned Trial Court had no occasion to modify the terms of the contract by reducing the rate of interest to 6 % from 16.5 % with quarterly rests and convert it into simple interest instead of compound interest. There was no occasion for the learned Trial Court to fix installment of Rs. 2,000/- in the matter of the repayment contrary to the terms and conditions agreed between the parties. According to them, Agreement for cash credit Exhibit- 10, i.e in Form-K which lays down the agreement for cash credit and the rate of interest to be charged. 12. I have considered the material on record and also gone through the impugned Judgment. The relevant condition in the Cash Credit Agreement is quoted hereunder:- “2nd- That interest at the rate of interest of 16.5 % per annum shall be calculated on the daily balance payable by the Borrower to the Bank and charged in account on the last working day of each month in accordance with the practice of the Bank.” 13. The relevant condition in the Cash Credit Agreement is quoted hereunder:- “2nd- That interest at the rate of interest of 16.5 % per annum shall be calculated on the daily balance payable by the Borrower to the Bank and charged in account on the last working day of each month in accordance with the practice of the Bank.” 13. Clause 6 of the agreement which also relates to the rights and the liabilities of the Bank and the borrower are quoted here-in-under:- “That the Bank its Agent and Nominees shall be entitle at all times without notice to the Borrower but at the Borrower's risk and expense and if so required as Attorney for and in the name of the Borrower to enter any place where the said goods may be and inspect value insure superintend disposal and/of take particulars of all or any part of the said goods and check any statement accounts reports and information and also on any default of the Borrower in payment of any money hereby secured or the performance of any obligation of the Borrower to the Bank or the occurrence of any circumstances in the opinion of the Bank endangering this security to take possession of recover receive appoint receivers of remove and/or sell by public auction or private contract dispatch for realisation or otherwise dispose of or deal with all or any part of the said goods and to enforce realise settle compromise and deal with any rights or claims relating thereto without being bound to exercise any of these powers or being liable for any loss in the exercise thereof and without prejudice to the Bank's rights and remedies of suit or otherwise and notwithstanding there may by any pending suit or other proceedings the Borrower undertaking to give immediate possession to the Bank on demand of the said goods and to transfer and deliver to the Bank all relative bills contracts securities and documents and agreeing to accept the Bank's accounts of sales and realisations as sufficient proof of amounts realised and relative expenses and to pay any shortfall or deficiency thereby shown provided that the Bank shall be entitled at all times to apply any other money or moneys in the hands standing to the credit of or belonging to the Borrower in or towards payment of any amount for the time being payable to the Bank on the said Cash Credit Account or otherwise as aforesaid and to recover any time form the Borrower by suit or otherwise the balance remaining payable to the Bank on the said Cash Credit Account or otherwise notwithstanding that all or any of the securities may not have been realised. Provided also that subjects to these powers of the Bank the Borrower may with the approval of the Bank sell the said goods from time to time in due course of business provided the margin of security required by the Bank is fully maintained and on the terms of payment or delivery to the Bank of the proceeds thereof or documents thereof immediately on receipt thereof.” 14. It is apparent there from that under the terms of the agreement interest at the rate of 16.5 % per annum was to be calculated on the daily balance payable by the borrower to the bank and charged in account on the last working day of each month in accordance with the practice of the bank. The claim of Rs. 3,12,384.87 Paise was affirmed by the learned Trial Court after finding the defendants responsible for delay in making the repayment of outstanding dues under the cash credit facilities over a period of time. In this regard, learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of State Bank of India Vs. Yasangi Venkateswara Rao reported in (1999) 2 SCC 375 . Para 8 containing the opinion of the Hon'ble Supreme Court on the issue of charging of interest as per the terms and conditions of contract entered into between the parties is quoted here in below:- “We also find it difficult to agree with the observation of the High Court that normally when a security is offered in the case of mortgage of property, charging of compound interest would be regarded as excessive. Entering into a mortgage is a matter of contract between the parties. If the parties agree that in respect of the amount advanced against a mortgage compound interest will be paid, we fail to understand as to how the court can possibly interfere and reduce the amount of interest agreed to be paid on the loan so taken. The mortgaging of a property is with a view of secure the loan and has no relation whatsoever with the quantum of interest to be charged.” 15. Evidently the parties had agreed to a particular rate of interest to be charged on cash credit facility as per terms of the agreement. The mortgaging of a property is with a view of secure the loan and has no relation whatsoever with the quantum of interest to be charged.” 15. Evidently the parties had agreed to a particular rate of interest to be charged on cash credit facility as per terms of the agreement. The learned Trial Court had no reason to interfere and reduce the amount of interest agreed between the parties on the loan so taken. The learned Trial Court also had no occasion to fix easy installments on its own after affirming the liability of the defendants to repay the outstanding loan. The impugned judgment and decree therefore suffers on those counts. 16. Having considered the entire relevant materials on record pleaded by the parties, the impugned judgment and decree deserve to be interfered with to the following extent. The plaintiff bank is entitled to recover the amount of Rs. 3,12,384.87 paise together with interest at the rate of 16.5 % per annum in terms of the agreement of the cash credit for the pendente lite and future period till its realization. The direction upon the defendants/respondent nos. 1 to 3 to repay the loan in installments of Rs. 2,000/- per month from August, 1998 is also set aside. However, any amount paid pursuant to the impugned judgment and decree by the respondents nos. 1 to 3 shall be adjusted by the appellant bank while realizing the outstanding dues in the manner indicated herein above. 17. The appeal stands allowed in the manner and to the extent indicated hereinabove with a cost of Rs. 5,000/-. The impugned judgment and decree stands modified to the aforesaid extent. Decree accordingly.