JUDGMENT : C.V.KARTHIKEYAN, J. The 1st defendant in O.S. No.6124 of 2001 on the file of the First Assistant City Civil Court at Chennai and the 3rd respondent, who was subsequently impleaded in the First Appeal, are the appellants herein. Pending appeal, the 1st respondent /plaintiff in the suit died and his legal representatives had been brought on record as further respondents. 2. O.S. No. 6124 of 2001 had been filed by the 1st respondent-M.K.Kannan under Section 60 of the Transfer of Property Act, 1889 seeking a judgment and decree directing the 1st defendant to cancel the mortgage deeds dated 06.09.1996 and 02.06.1997 and consequently, to redeem the schedule mentioned properties and grant permanent injunction restraining the defendants from bringing the suit schedule property for sale by way of public auction and for costs of the suit. By judgment and decree dated 20.01.2007, the suit was dismissed with costs. This necessitated the plaintiff to file A.S. No. 436 of 2007. Pending the Appeal Suit, since the 1st defendant had assigned the rights under the mortgage to a third party, the said third party was impleaded as 3 rd respondent in the Appeal Suit. The Appeal Suit came up for consideration before the IV Additional City Civil Court at Chennai and by judgment and decree dated 22.12.2009, the Appeal Suit was allowed with costs and the judgment and decree of the trial Court was set aside and the suit was decreed with costs. 3. Questioning that particular judgment, the 1 defendant and the newly impleaded the 3 rd respondent in the First Appeal have filed the present Second Appeal. The Second Appeal had been admitted on the following substantial questions of law:- “1. Whether the lower appellate Court is correct in law in casting the onus on the defendant /appellant to prove the discharge of the mortgage loan when it is for the plaintiff to prove discharge as per the provisions of Section 101 of the Indian EVIDENCE ACT ? 2. Whether the lower appellate Court is correct in law in drawing on adverse inference against the appellant for not producing their accounts especially when it is not the case of the plaintiff that the passbook and receipts filed by him as Ex.A3, A4, A16 & A17 do not reflect the correct statement? 3. 2. Whether the lower appellate Court is correct in law in drawing on adverse inference against the appellant for not producing their accounts especially when it is not the case of the plaintiff that the passbook and receipts filed by him as Ex.A3, A4, A16 & A17 do not reflect the correct statement? 3. Whether the lower appellate court is correct in law in coming to the conclusion that the appellant is not entitled to claim interest after the date of the filing of the redemption suit especially when the respondent has not complied with the provisions of Section 83 of the Transfer of Property Act? 4. To what relief?” 4. The arguments in the Second Appeal revolved primarily around the claim of the 1st respondent /plaintiff in the suit that he had discharged the mortgage and there was no substantial amount due and payable. As per the statements of accounts, t he balance amount payable would be Rs.85,981.50. However, though the suit was dismissed, it is a fact that the mortgage had been entered into by the 1 respondent with the 1st appellant, and that there are admittedly amounts due and payable by the 1st respondent to the 1 appellant. 5. In view of that particular statement made, arguments further revolved around whether interest should be recovered pendente lite taking into consideration the fact that the suit had been instituted in the year 2001 and whether interest would be governed by the agreement between the parties and whether the Court could entertain pendente lite interest. 6. In view of the nature of the arguments advanced and the Second Appeal having been admitted, it will only be appropriate that the substantial questions of law are modified and Courts takes upon its onus to answer the following substantial questions of law:- 1. Whether the lower appellate Court was correct in not recognizing that under Section 101 of the Indian EVIDENCE ACT , the plaintiff, who pleaded discharge of mortgage, should present the necessary amounts repaid towards such discharge and the burden remains with the plaintiff? 2. If the Court was to find that the plaintiff is due and liable to pay the amounts towards the mortgage, the interest which the Court could grant under Order 34 Rule 11 of the Code of Civil Procedure? O.S. No. 6124 of 2001:- 7. 2. If the Court was to find that the plaintiff is due and liable to pay the amounts towards the mortgage, the interest which the Court could grant under Order 34 Rule 11 of the Code of Civil Procedure? O.S. No. 6124 of 2001:- 7. The plaintiff, M.K.Kannan had contended that he was the th absolute owner of the property at Plot No.264, 17 East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai – 41, which had been described in the schedule and that he had borrowed loans from various third parties. He had approached the 1st defendant /Park Town Benefit Fund Ltd seeking loan. It had been contended that he had received a sum of Rs.4,75,000/- on 06.09.1996 by mortgaging his property with the 1 defendant. Under terms of the mortgage, the loan had to be repaid together with interest at the rate of 22.2% per annum in Equated Monthly Instalments (EMI) of Rs.8,787.50 per month commencing from September, 1996 and the period of loan was 80 months. It had been contended by the plaintiff that he had borrowed a further sum of Rs.4,00,000/- on 02.06.1997 by creating a second mortgage for the very same property. Under this mortgage, the interest was determined as 24% per annum. The plaintiff was under obligation to repay the EMI towards the principal and interest at the rate of 8,000/- per month commencing from 02.06.1997. The period of loan was 80 months. 8. It is the case of the plaintiff that owing to various circumstances, the 1st defendant had issued notices to bring the property mortgaged on sale. He claimed that by June 2003, he had repaid the entire amount together with interest. He further claimed that in accordance with the terms of the mortgage, he also had to remit a sum of Rs.4,750/- and Rs.4,000/- towards Recurring Deposit accounts and he had been making such payments towards Recurring Deposit accounts, and requested the 1st respondent for adjustment of the said payments towards default interest. The plaintiff claimed that if proper account is taken, it would be evident that he would be due and liable to pay a sum of Rs.85,981.50 alone towards the amount which he had borrowed on 06.09.1996 i.e., a sum of Rs.4,75,000/- and also towards the amount which he had borrowed on 02.06.1997 i.e., a sum of Rs.4,00,000/-. A decree in those lines were sought in the suit. 9. A decree in those lines were sought in the suit. 9. In the written statement filed by the 1st defendant, the statement of accounts as presented by the plaintiff was denied and disputed. According to the 1st defendant, towards the first mortgage, there was a balance of Rs.7,95,305.30 and towards the second mortgage, there was a balance of Rs.6,51,210.35 as on 01.11.2001. It had been stated that the plaintiff had paid a total sum of Rs.12,05,961/- towards the loan amount. It had been contended that therefore, it would be appropriate that accounts were drawn in a proper manner and that the plaintiff must be called upon to pay the amount due under the mortgage before a decree of redemption is passed. 10. The learned I Assistant Judge, City Civil Court, Chennai on examination of the pleadings had framed the following issues for trial:- 1. Whether the suit is maintainable? 2. Whether the claim of the plaintiff that the mortgage had been discharged is true and correct? 3. Whether the mortgage deed had been cancelled? 4. Whether the plaintiff is entitled for the relief of permanent injunction as sought for? 5. To what other reliefs the plaintiff is entitled to? 11. During the course of trial, the plaintiff examined himself as PW1 and the 1 st defendant had been examined as DW1. The plaintiff marked Exs.A1 to A19. Two mortgage deeds dated 06.09.1996 and 02.06.1997 were marked as Exs. A1 and A2. The documents relating to the repayment of the mortgage amount were marked as Exs.A3 and A4 by producing the passbooks. The statements regarding the Recurring Deposits were marked as Exs. A5 and A6. The receipts for payments made by the plaintiff towards the two mortgages were marked as Exs.A10 series and A12 series. The defendants marked Exs. B1 to B6. The statement of accounts were marked as Exs. B3 to B6. 12. On appreciation of the averments made in the pleadings and all the evidence adduced both orally and documentary, the I Assistant Judge, City Civil Court, Chennai had dismissed the suit with costs. During the course of the discussion, it had been observed that if there had been default in the payments of the Equated Monthly Instalments, the 1st defendant would have every right to bring the property on auction sale. During the course of the discussion, it had been observed that if there had been default in the payments of the Equated Monthly Instalments, the 1st defendant would have every right to bring the property on auction sale. With respect to the amounts, which had been claimed to have been paid, and the further claim that the 1st defendant had charged exorbitant interest in violation of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 and in violation of the Usurious of Loan Interest Act, the Trial Court had examined the claim of the 1st defendant that as on 01.11.2001, the total amount payable by the plaintiff was Rs.14,46,515.65 and further observed that this had also been substantiated by the accounts produced by the 1st defendant. With respect to the amount said to have been paid by the plaintiff, it had been stated that though the plaintiff claimed to have paid Rs.1,30,000/- to the defendant, the plaintiff had not produced any receipts for the same. The plaintiff had produced one receipt dated 22.09.1995 for a sum of Rs.22,000/- which had been marked as Ex.B12. It had been further observed that on 03.09.2000 a sum of Rs.30,000/- had been paid under Ex.B3, but the claim of the plaintiff that the amount so paid had not been adjusted towards the principal or the interest is not correct. It had been finally held that the plaintiff had not tendered credible evidence to show the amounts paid under the two mortgages and owing to failure of producing the proper accounts, the suit had been dismissed with costs. A.S. No. 436 of 2007:- 13. The plaintiff then filed the aforesaid Appeal Suit which came up for consideration before the VI Additional City Civil Court, Chennai. During the pendency of the Appeal Suit, the mortgage had been assigned to a third party, who had been subsequently impleaded as the 3rd respondent before the learned First Appellate Court. The VI Additional Judge, City Civil Court had framed the following one point for consideration under Order XLI Rule 31 of the Code of Civil Procedure, 1908:- “1. whether the appeal has to be allowed or not?” 14. The VI Additional Judge, City Civil Court had framed the following one point for consideration under Order XLI Rule 31 of the Code of Civil Procedure, 1908:- “1. whether the appeal has to be allowed or not?” 14. I have to point out that it has been consistently held that framing of point for determination by the First Appellant Court is a sacrosanct paramount duty and the said point must be framed not only based on the pleadings, but also on the evidence adduced by the parties. The issues are framed based on the pleadings, the statements made and denied. While framing points for determination under Order XLI Rule 31 of the Code of Civil Procedure, the learned First Appellate Court has the benefit of both oral and documentary evidence and therefore, the points for consideration will necessarily have to be framed after ascertaining whether the pleadings had been substantiated by evidence or whether evidence has been adduced without necessary pleadings. All these factors should be taken into consideration before framing points for determination under Order XLI Rule 31 of the Code of Civil Procedure. Framing just one point, viz., whether the Appeal should be allowed or not would not enable the learned First Appellate Court to focus on the actual issues at lis between the parties. The learned First Appellate Court is also a fact finding Court and has the power to admit additional evidence, which could have a crucial impact on the decision taken by that Court. Be that as it may, the learned First Appellate Court had examined Exs. B5 and B6, which were the statement of accounts of Recurring Deposit and relating to the two mortgages the loan ledger were marked as Exs. A1 and A2. 15. The First Appellate Court had combined both the mortgages and crystallized them to a sum of Rs.8,75,000/-. Even though both the mortgages were governed under two separate contracts on separate mortgage deeds on two separate dates, even though the parties are the same and the property mortgaged is the same, each separate agreement will have to be examined on the basis of the first date on which the Equal Monthly Instalments will have to be paid and the clauses governing the said individual mortgage deeds. The learned First Appellate Court had also taken as the gospel truth the claim of the plaintiff that though the claim of the first mortgage was for a sum of Rs.4,75,000/- and the secondmortgage was for a sum of Rs.4,00,000/-, the 1st defendant paid only a sum of Rs.4,27,500/- and Rs. 3,30,000/- alone respectively under the two mortgages. If that had been the case, the plaintiff should never have signed the mortgage deed. Having entered into an agreement and having signed the agreement no oral evidence could be adduced raising issues about the amount paid under the mortgage deed. Section 92 of the EVIDENCE ACT will prevail. Even oral evidence could be admitted only in respect of fraud or undue influence and not on a plain reading of the mortgage deed. 16. The learned First Appellate Court had also examined the notices issued to produce documents under Exs.A18 and 19 and the replies given that documents were not in the possession of the defendants. It must be kept in mind that it is a suit for redemption and not a suit on mortgage by the mortgagee. When the mortgagor has come to Court, it is for the mortgagor to prove his case and he cannot place reliance on the mortgagee to assist and help him in that particular regard. The burden always remains on the plaintiff. In the instant case as the mortgagor has to prove the amount discharged under the mortgage. As, defendant, the mortgagee will only have to establish the fact that the mortgage was entered and the contractual terms under the mortgage and the amounts received under the mortgage. 17. The learned First Appellate Court had however shifted the burden even without establishment of the foundational on to mortgagee to prove that the mortgagor had discharged the mortgage. This is an unheard principle. The learned First Appellate Court had also took upon itself the discretion relating to interest and had stated that on the principal of equity and as discretionary is vested with the Court, had allowed the Appeal with costs, which would indicate nothing, since if a decree is to be passed by the learned First Appellate Court, then the learned First Appellate Court was under obligation to declare the amount due on the two mortgages and call upon the mortgagors to pay the amount as declared by the Court. Unfortunately, that particular exercise had not been undertaken by the learned First Appellate Court. 18. Challenging this judgment, the first defendant and assignee under the mortgage have filed the present Second Appeal. 19. The Second Appeal had been admitted, but the substantial question of law had been re-framed as follows:- 1. Whether the lower appellate Court was correct in not recognizing that under Section 101 of the Indian EVIDENCE ACT , the plaintiff, who pleaded discharge of mortgage, should present the necessary amounts repaid towards such discharge and the burden remains with the plaintiff? 2. If the Court was to find that the plaintiff is due and liable to pay the amounts towards the mortgage, the interest which the Court could grant under Order 34 Rule 11 of the Code of Civil Procedure? 20. Heard arguments advanced by Mr.P.Valliappan, learned Senior Counsel for the appellants and Mrs.A.L.Ganthimathi, learned Senior Counsel for the respondents. 21. It must also be pointed out that the plaintiff / 1 respondent had died pending the Second Appeal and his legal representatives had been brought on record as further respondents. 22. Mr.P.Valliappan, learned Senior Counsel took the Court through the facts of the case and expressed grievance over the reasonings of the learned First Appellate Court. He stated that till this date, though the suit had been pending from the year 2001, a preliminary decree had not been framed by either of the two Courts. The learned First Appellate Court which had allowed the First Appeal and decreed the suit had also failed to indicate the amount which is due and payable under the two mortgages. 23. It is to be noted that even according to the 1 respondent in the plaint, a sum of Rs.85,981.56 was due and payable under the two mortgages. This amount itself varies from the amount as stated in the plaint, wherein, it had been stated if proper accounts are taken, a sum of Rs.1,00,000/- is due and payable. The learned Senior Counsel pointed out that a responsibility had been cast on the First Appellate Court to determine the actual amount due and payable and on receipt of such report, the Court should direct the payment of the said amount by the mortgagor in order to seek redemption of the mortgage. The learned Senior Counsel pointed out that a responsibility had been cast on the First Appellate Court to determine the actual amount due and payable and on receipt of such report, the Court should direct the payment of the said amount by the mortgagor in order to seek redemption of the mortgage. The learned Senior Counsel further argued that Order XXXIV Rules 7 and 11 of the Code of Civil Procedure deal with suits relating to mortgages of immovable property and Order XXXIV Rule 7 places an obligation to the plaintiff to furnish the accounts which could be verified and proved during the course of trial and not to state any imaginary amount as thought fit by the plaintiff. Any amount stated in the accounts as submitted in the plaint have not only to be verified but also proved by the plaintiff to the satisfaction of the Court. 24. The learned Senior Counsel argued that Order XXXIV Rule 11 of Code of Civil Procedure relating to the payment of interest, provides that if there is no contractual interest agreed by the parties, then the Court should exercise its discretion and more particularly, with respect to the interest to be awarded on the costs of the suit and other expenses incurred in the litigations. In the instant case, the learned Senior Counsel stated that there is no dispute about the rate of interest, since it had been provided in the mortgage deed itself. 25. The Court had thus, no other option, but to revert back to the contractual rate of interest and exercise its discretion only with respect to the costs and other expenses incurred during the course of the litigation and not the amount payable under the mortgage deed. 26. The learned Senior Counsel argued that if the statements are to be reconciled, then a commissioner should be appointed more particularly, a chartered account to enter into an analysis of the amountspayable by the 1 respondent /plaintiff under the two mortgage deeds. 27. The learned Senior Counsel placed reliance of the judgment of a learned Single Judge of this Court reported in 2024 (6) CTC 59 in Praveen Chordia and Ors. -vs- Asaithambi and Ors. 27. The learned Senior Counsel placed reliance of the judgment of a learned Single Judge of this Court reported in 2024 (6) CTC 59 in Praveen Chordia and Ors. -vs- Asaithambi and Ors. and urged that this Court must examine the fact that the 1 st respondent had enjoyed the property from the date on which the loans had been obtained and the mortgages had been entered into and there has been appreciable increase in the value of properties, which fact has to be taken by the Court as having been enjoyed by the plaintiff and therefore, stated that interest pendente lite should also be governed under the agreement and not otherwise. The learned Senior Counsel pointed out that in the judgment referred supra ( 2024 (6) CTC 59 ), the learned Judge of this Court had examined the gross inflation rate and the object of calculating and arriving at a reasonable interest and also had examined the real interest with the SBI interest rate which is granted to commercial advances and also the fact that under Order XXXIV Rule 11 of the Code of Civil Procedure, the Court had been vested with power to award reasonable interest and therefore, had in that particular case, granted interest at 24% per annum from the date of the mortgage till the date of filing of the suit and thereafter, during the pendency of the suit and till the date of decree at 18% per annum and from the date of decree at 12% simple interest. 28. The learned Senior Counsel also placed reliance on the judgment of the Hon'ble Supreme Court reported in 2024 (9) SCC 476 in D.Khosla and Company -vs- Union of India, wherein the Supreme Court examined an issue under the Arbitration Act, 1940 more particularly, under Section 39 and whether interest on interest and compound interest post award could be granted. The inter play between the Arbitration Act, 1940 and permissibility of grant of interest on interest and Section 34 of the Code of Civil Procedure had been examined by the Hon'ble Supreme Court of India and it had been held that though ordinarily the Court cannot grant interest or penal interest in particular cases, the Court could grant interest on interest. 29. 29. The learned Senior Counsel further placed reliance on the judgment of the Hon'ble Supreme Court reported in 1994 Supp (1) Supreme Court Cases 644 in Renusagar Power Co.Ltd. -vs- General Electric Co. wherein the Hon'ble Supreme Court while examining the issue of a foreign award under the Arbitration Act and enforcement of such award and consequent grant or otherwise of interest pendente lite and also future interest, had held that in an international commercial argument, interest could be granted during the period when the arbitration proceedings were pending, for the period from the date of award till the date of institution of the proceedings for enforcement, for the period from the date of institution of the proceedings in a Court till passing of a decree and for the period subsequent to the decree till the payment. It had been further held that the interest with respect to the period prior to the date of reference could be governed by the law of contract and the interest for the period during which the arbitration proceedings were pending and from the date of award till the date of institution of a proceedings in a Court for enforcement would be governed by law governing the arbitral proceedings. With respect to the award of interest for the period from the date of institution of the proceedings in the Court till passing of decree and subsequent to the decree till the payment, it had been held that the interest would be governed by law of the forum where the award is sought to be enforced. 30. Mrs.A.L.Ganthimathi, learned Senior Counsel however disputed the said contentions. The learned Senior Counsel argued that the plaintiff's calculation of the amount payable in the plaint and in the absence of any evidence to the contrary adduced by the defendants in the suit /appellants, it would only be appropriate that the calculation as projected should be taken as correct unless it is challenged and disputed. It had been contended by the learned Senior Counsel that even according to the appellants in the written statement, the total amount paid by the 1 st respondent/plaintiff was a sum of Rs.12,05,961/- for a total loan of Rs.7,87,500/-. The learned Senior Counsel stated that the learned First Appellate Court had examined all the issues concerned and had come to a just and equitable decision with respect to the amount due. The learned Senior Counsel stated that the learned First Appellate Court had examined all the issues concerned and had come to a just and equitable decision with respect to the amount due. In the statement as projected by the appellants in their written statement, the appellants had stated that towards the first mortgage, a sum of Rs.7,95,305.30 was due as on 01.11.2001 and with respect to the second mortgage, Rs.6,51,210.35 was due as on 01.11.2001. The learned Senior Counsel stated that the respondents are always ready and willing to pay these two amounts to the appellants, and that the Court should exercise its discretion about the grant of interest and the rate on which the interest could be granted. 31. The learned Senior Counsel further pointed out that the First Appellate Court had delivered its judgment on 22.12.2009 and the Second Appeal is pending at the instance of the appellants / defendants for no fault of the plaintiff. Initially, stay was granted for a specific period of time and not extended thereafter. Thereafter, the respondents herein had also filed execution petition that had been kept in abeyance. It had been contended by the learned Senior Counsel that the pendency of the Second Appeal was not owing to the fault of the respondents and as a matter of fact contended that the Appeal had not been admitted on the date on which it had been originally taken up for at the first instance, 23.02.2012 and rather had been admitted only on 19.06.2024. It had been pointed out that no arguments had been advanced towards the admission of the Second Appeal for the period from 23.02.2012 till 19.06.2024. It had been contended by the learned Senior Counsel that the respondents could not be mulcted with interest on the contractual rate and that the Court should exercise its discretion. 32. The learned Senior Counsel had placed reliance on the judgment of the Hon’ble Supreme Court reported in 1998 (2) SCC 317 in N.M.Veerappa Vs. Canara Bank, with specific reference to Order XXXIV Rule 11 and interest in a mortgage suit. It had been stated that the non obstante clause in Section 21-A of the Banking Regulation Act would not over ride Order XXXIV Rule 11 of Code of Civil Procedure. Canara Bank, with specific reference to Order XXXIV Rule 11 and interest in a mortgage suit. It had been stated that the non obstante clause in Section 21-A of the Banking Regulation Act would not over ride Order XXXIV Rule 11 of Code of Civil Procedure. In that case, the High Court had held that the plaintiff therein was entitled for interest on the contractual rate till the date of decree and also thereafter and more particularly, from the date of the judgment of the suit till the date of realization. It had been held by the Hon’ble Supreme Court that Section 34 of the Code of Civil Procedure would not apply rather the payment of interest would be governed under Order XXXIV Rule 11 of the Code of Civil Procedure and accordingly, had stated that the discretionary power under Order 34 Rule 11 is an independent power and the Court could grant interest at such rate which is deemed reasonable. In view of those arguments presented, the learned Senior Counsel stated that the Court should exercise its discretion in the issue of grant of interest and grant appropriate interest and not the contractual interest. 33. During the course of hearing, this Court had directed both the sides to present their respective statement of amounts as due and payable. The appellants had produced their statement of accounts, wherein with respect to the first mortgage, it had been contended that a sum of Rs.1,07,33,470.83 is due and payable with interest on the principal, with default interest, with interest on tax and the Recurring Deposit default. With respect to the second mortgage, it had been contended that a sum of Rs.1,06,40,081.30 is due and payable again with interest on the principal with default interest with interest on tax and the default in the Recurring Deposit. 34. On the side of the respondents, the statement of accounts had also been furnished, which projected that with respect of the first mortgage, the due as on October 2001 till the date of filing of the suit towards the principal and interest was Rs.9,02,025/- and with respect to the second mortgage for the same period, the amount due was Rs.6,73,200. The respondents had also deducted the amount paid as claimed by the appellants herein and therefore, stated that the total amount due and payable was Rs.1,87,445/- as on October 2001. The respondents had also deducted the amount paid as claimed by the appellants herein and therefore, stated that the total amount due and payable was Rs.1,87,445/- as on October 2001. Simple interest had been calculated at 24% per annum and it had been stated that the total amount due was Rs.12,67,128/-. Again the amounts which have been paid had been adjusted and again interest had been calculated at 24% per annum from October 2001 till August 2025 to a sum of Rs.24,96,224/-. 35. As is evident, there cannot be any reconciliation on the face of the two statement presented before this Court. 36. I have carefully considered the arguments advanced and perused the materials placed. Both the substantial questions of law revolve around the mortgage which had been entered into by therespondents with the 1 appellant and the amounts which had been paid/not paid and the rate of interest which has to be applied and the period for which the interest could be calculated. I would therefore take both the substantial questions of law together. 37. For the sake of convenience, the parties would be referred to as the plaintiff and the defendants. The plaintiff is the respondents in the Second Appeal and the defendants are the appellants in the Second Appeal. 38. The plaintiff had instituted the suit under Section 60 of the Transfer of Property Act seeking to redeem two separate mortgages entered into by him with the 1 st defendant. The first mortgage was entered into on 06.09.1996 for a sum of Rs.4,75,000/- and the second mortgage on 02.06.1997 for a sum of Rs.4,00,000/-. The first mortgage carried interest at 22.2% per annum and the amount was repayable under 80 Equal Monthly Instalments of Rs.8,787.50. Additionally, the plaintiff would also have to make a payment of Rs.4,750/- towards the Recurring Deposit. This was for a period of 80 months. The second mortgage commenced from 02.06.1997 and the rate of interest was 24% per annum. The Equal Monthly Instalment was Rs.8,000/- per month and the commitment towards Recurring Deposit was Rs.4,000/- per month and the period of repayment was 80 months. There is no dispute over these clauses in the mortgage deeds. It is the contention of the plaintiff that the interest under the first mortgage was Rs. 22.2% per annum and the interest under the second mortgage was 24% per annum. 39. There is no dispute over these clauses in the mortgage deeds. It is the contention of the plaintiff that the interest under the first mortgage was Rs. 22.2% per annum and the interest under the second mortgage was 24% per annum. 39. In a suit for redemption of mortgage which is governed not just under Section 60 of the Transfer of Property Act, but for all practical purposes when a suit is instituted under Order XXXIV of the Code of Civil Procedure, the payment of interest is governed under Order XXXIV Rule 11 of CPC. The said Order XXXIV Rule 11 of the Code of Civil Procedure is as follows:- “ 11. Payment of interest.— In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:— (a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage— (i) on the principal amount found or declared due on the mortgage,—at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable, 3* * * * *and (iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage-money,—at the rate agreed between the parties or, failing such rate, 4 [at such rate not exceeding six per cent. per annum as the Court deems reasonable]; and 5[(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable.]” 40. It is an admitted fact that the plaintiff were due and payable amounts on the date of filing of the suit to the defendants. They had created a mortgage over their property and the same property was offered as security for both mortgages. It is an admitted fact that the plaintiff were due and payable amounts on the date of filing of the suit to the defendants. They had created a mortgage over their property and the same property was offered as security for both mortgages. In the plaint, it had been alternatively stated that a sum of Rs.1,00,000/- was due towards both the mortgages and also that a sum of Rs.85,981.50 was due and payable by the plaintiffIn the statement presented before this Court by the plaintiff/1 respondent with respect of the first mortgage as on October 2001, which presumably must be from the date on which the suit was instituted the amount due was shown to be Rs.9,02,025/- and the amount due on the second mortgage as on October 2001 was shown to be Rs.6,73.200/-. Thus, there is variation in the amounts due and payable as calculated and projected in the plaint and as calculated and projected before this Court. The plaintiff had claimed that the amounts had also been paid and in this connection, the defendants in their written statement had stated that the plaintiff had paid a sum of Rs.12,05,961/- towards a sum of Rs.7,87,500/-. Even otherwise, the fact which remains is that the plaintiff is due and liable amounts under the mortgages. Unless they pay the amount, there cannot be a direction or decree passed for redemption of the mortgage. 41. The first substantial question of law revolves around the burden to prove the amounts actually paid and the amount due and the rate of interest which should be adopted. In a suit for redemption of mortgage, the plaintiff has come to the Court seeking a direction to the defendants to accept the amount which the plaintiff projects as due and payable and seeking to redeem the mortgage and to release the property from mortgage. It is not a suit on mortgage by a mortgagee, rather a suit by the mortgagor against the mortgagee. When the mortgagor approaches the Court seeking redemption of the mortgage, foundational facts must be firm and categorical and stated and projected with records and credible, admissible evidence. The burden always on the plaintiff. It is not a suit on mortgage by a mortgagee, rather a suit by the mortgagor against the mortgagee. When the mortgagor approaches the Court seeking redemption of the mortgage, foundational facts must be firm and categorical and stated and projected with records and credible, admissible evidence. The burden always on the plaintiff. When they claim that a certain amount is due and payable on the mortgage and come forward to discharge the mortgage on payment of such amount, to ensure that the amount which is stated in the plaint is correct there must be sufficient evidence for the Court to pass a decree. 42. Unfortunately in the instant case, the plaintiff had not produced such evidence as is required. The documents had been filed, but they do not confirm the amount actually paid. The plaintiff also placed reliance on the defendants to produce certain documents on the amounts actually paid. The very plaint is based on the fact that though the first mortgage was for a sum of Rs. 4,75,000/- the plaintiff was paid only a sum of Rs.4,27,500/-. With respect to the second mortgage, it had been contended that though the mortgage was for a sum of Rs.4,00,000/-, the plaintiff was paid only a sum of Rs.3,60,000/-. If the plaintiff is to seek that the Court should accept these two statements, then the plaintiff must produce credible evidence for receiving a lesser amount than what had been stated in the mortgage deed. A mere statement in that regard is not sufficient and would not withstand the scrutiny of the Court. The documents speak for themselves. In both the documents, the mortgage amounts had been given and in both the documents, the plaintiff had voluntarily signed the documents and had offered the title deeds as security to the mortgagee. Therefore, that particular statement in the plaint that a lesser amount had been received under the mortgages cannot be accepted by this Court. It is thus seen that the foundation of the calculation of the plaintiff itself does not withstand scrutiny of the Court. 43. The plaintiff necessarily has to start with the amount which he had received under two mortgages, viz., a sum of Rs.4,75,000/- and Rs.4,00,000/- respectively. The contractual rate of interest under the first mortgage at 22.2% per annum and under the second mortgage is 24% per annum. 43. The plaintiff necessarily has to start with the amount which he had received under two mortgages, viz., a sum of Rs.4,75,000/- and Rs.4,00,000/- respectively. The contractual rate of interest under the first mortgage at 22.2% per annum and under the second mortgage is 24% per annum. The interest accrued is the interest agreed by the parties consciously with adequate knowledge of its implication. It is not for this Court to thrust a deviation in the contract on the parties and claim that the Court can exercise such discretion. Any discretion can be exercised only judiciously and not merely because such power is vested with the Court. When the contracting parties had agreed the manner under which the amount borrowed had to be repaid and had further agreed the rate of interest and when the amount borrowed had not been paid, they will have to fall or fail under the agreement and not take recourse to the Court to modify the terms. Any modification would be to the advantage to one party and at the same time, to the disadvantage of the other. When there is no consensus between the parties as in this case and there is extreme divergence even about the calculation of the amount due, it would not be appropriate on the part of this Court to exercise its discretion. 44. The only provision which clearly applies is Order XXXIV Rule 11 of Code of Civil Procedure for payment of interest in a decree for foreclosure for redemption. This appeal is also a case for redemption of mortgage. Order XXXIV Rule 11 of Code of Civil Procedure clearly states that the first step is to adjudicate the amount due and on adjudication of the amount due on the mortgage to, also adjudicate the costs, charges, expenses which had actually been incurred by the mortgagee in respect of the mortgage. With respect to the interest, it would be at the rate agreed between the parties or if there is no such rate of interest as agreed at 6% per annum. The discretion to adopt the rate of interest at 6% per annum could be exercised only when there is no agreed rate of interest between the parties. With respect to the interest, it would be at the rate agreed between the parties or if there is no such rate of interest as agreed at 6% per annum. The discretion to adopt the rate of interest at 6% per annum could be exercised only when there is no agreed rate of interest between the parties. If there had been a particular rate of interest agreed between the parties, unless both side consent to modify or vary the same, it would only be inappropriate on the part of the Court to divide the optimum interest. If there is no agreement regarding rate of interest, the Court could follow what had been prescribed under Order XXXIV Rule 11 CPC and apply 6% simple interest per annum. 45. In the judgment referred by the learned Senior Counsel for the appellants ( 2024 (6) CTC 59 ) , the learned Single Judge of this Court had observed that a detailed examination has to be made for awarding a lower interest. There is one slight distinction viz., the mortgage in that particular case was for the purpose to purchase another property, whereas in the instant case, the mortgage was to repay loans which the plaintiff had borrowed for construction of building in the property. 46. In the judgment referred supra and cited by the learned Senior Counsel appearing for the respondents in 1998 (2) SCC 317 in N.M.Veerappa Vs. Canara Bank while examining the discretionary power of the Court, it had been held that it is an independent power. While examining the thrust of Section 21 (A) of the Banking Regulation Act 1949 viz-a-viz Order 34 Rule 11 of CPC it had been held as follows:- “23. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act 1 of 1984, w.e.f. 15-2-1984. It reads: “21-A. Rates of interest charged by banking companies not to be subjected to scrutiny by courts. We shall refer to the provision in Section 21-A of the Banking Regulation Act, 1949 as introduced by Act 1 of 1984, w.e.f. 15-2-1984. It reads: “21-A. Rates of interest charged by banking companies not to be subjected to scrutiny by courts. —Notwithstanding anything contained in the Usurious Loans Act, 1918 or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be reopened by any court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive.” (emphasis supplied) Firstly, it will be noticed that the effect of the “non obstante clause” in Section 21-A is to override the Central Act, namely, the Usurious Loans Act, 1918 and any other “law relating to indebtedness in force in any State”. Obviously it does not expressly intend to override the Code of Civil Procedure among the Central statutes. It is now well settled that the scope and width of the non obstante clause is to be decided on the basis of what is contained in the enacting part of the provision. (Aswini Kumar Ghose v. Arabinda Bose [(1952) 2 SCC 237 : AIR 1952 SC 369 : 1953 SCR 1 ].) Further, by no stretch of imagination can the Code of Civil Procedure, 1908 be described as a “law relating to indebtedness in force in any State”. As stated above, the provision in Section 21-A refers, so far as Central legislation is concerned, only to the Usurious Loans Act, 1918 and not to the Code of Civil Procedure, 1908 and it then refers to other laws relating to indebtedness in force in any State. Therefore, the provision of Section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC. 24. Therefore, the provision of Section 21-A of the Banking Regulation Act, 1984 cannot be held to have intended to override a Central legislation like the CPC or Order 34 Rule 11 CPC. 24. Secondly, as stated by the Federal Court in Jaigobind case [ AIR 1940 FC 20 : 44 CWN 21] and by this Court in Soli Pestonji Majoo case [ (1969) 1 SCC 220 : (1969) 3 SCR 33 ] the discretionary power conferred on the Civil Court under Order 34 Rule 11 to cut down the contract rate of interest for the period from the date of suit and even up to the date fixed for redemption by the Court is very much there, even if there was no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. This Court observed in Soli Pestonji Majoo case [ (1969) 1 SCC 220 : (1969) 3 SCR 33 ] as follows: (SCC pp. 224-25, para 6) “It is apparent that the new Rule 11 as inserted by the Amending Act 21 of 1929 provides that the Court ‘may’ order payment of interest to the mortgagee up to the date fixed for payment as the rate payable on the principal. 224-25, para 6) “It is apparent that the new Rule 11 as inserted by the Amending Act 21 of 1929 provides that the Court ‘may’ order payment of interest to the mortgagee up to the date fixed for payment as the rate payable on the principal. It was held by the Federal Court in Jaigobind Singh v. Lachmi Narain Ram [ AIR 1940 FC 20 : 44 CWN 21] that the language of the rule gives a certain amount of discretion to the court so far as interest pendente lite and subsequent interest is concerned and it was no longer absolutely obligatory on the courts to decree interest at the contractual rates up to the date of redemption in all circumstances even if there is no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.” (emphasis supplied) In other words, the discretionary power given to the Court under Order 34 Rule 11 is an independent power and the power is neither traceable to Section 74 of the Contract Act nor to any power in the Usurious Loans Act, 1918 nor to any State statutes permitting a court to scale down contractual rates of interest.” There again discretion could be exercised only to a limited extent and it had been very clearly stated that the discretionary power given to the Court under Order XXXIV Rule 11 of CPC is an independent power neither traceable to any provision of the Contract Act nor to the Usurious Loans Act or to any State Statute. 47. The learned Senior Counsel for the appellants /defendants had urged that this Court should also examine grant of interest on interest and in this connection, had placed reliance on the judgment of the Hon’ble Supreme Court of India in 2024 (9) SCC 476 in KK Bank -vs- Union of India with specific reference to paragraph No.24, which is as follows:- “24. In the light of the above legal provisions and the case law on the subject, it is evident that ordinarily courts are not supposed to grant interest on interest except where it has been specifically provided under the statute or where there is specific stipulation to that effect under the terms and conditions of the contract. In the light of the above legal provisions and the case law on the subject, it is evident that ordinarily courts are not supposed to grant interest on interest except where it has been specifically provided under the statute or where there is specific stipulation to that effect under the terms and conditions of the contract. There is no dispute as to the power of the courts to award interest on interest or compound interest in a given case subject to the power conferred under the statutes or under the terms and conditions of the contract but where no such power is conferred ordinarily, the courts do not award interest on interest.” Further reliance had been placed on the judgment of the Hon’ble Supreme Court reported in 1994 Supp (1) Supreme Court Cases 644 in Renusagar Power Co. Ltd. Vs. General Electric Co. That was an extreme case of enforcement of foreign award and for grant of interest in 5 separate stages. There had been discussion in para 134 and 135, which are as follows:- “VIII. Interest pendente lite and future interest 134. In an international commercial arbitration, like any domestic arbitration, the award of interest would fall under the following periods: (i) period prior to the date of reference to arbitration; (ii) period during which the arbitration proceedings were pending before the arbitrators; (iii) period from the date of award till the date of institution of proceedings in a court for enforcement of the award; (iv) period from the date of institution of proceedings in a court till the passing of the decree; and (v) period subsequent to the decree till payment. 135. The interest in respect of the period covered by item (i), namely, prior to the date of reference to arbitration would be governed by the proper law of the contract and the interest covered by items (ii) and (iii), i.e., during the pendency of the arbitral proceedings and subsequent to the award till the date of institution of the proceedings in the court for the enforcement of the award would be governed by the law governing the arbitral proceedings. These are matters which have to be dealt with by the arbitrators in the award and the award in relation to these matters cannot be questioned at the stage of enforcement of the award. These are matters which have to be dealt with by the arbitrators in the award and the award in relation to these matters cannot be questioned at the stage of enforcement of the award. At that stage the court is only required to deal with interest covered by items (iv) and (v). The award of interest in respect of these periods would be governed by lex fori, i.e., the law of the forum where the award is sought to be enforced. According to Alen Redfern and Martin Hunter “once an arbitral award is enforced in a particular country as a judgment of a court, the arbitral post-award interest rate may be overtaken by the rate applicable to civil judgments.” [See : Redfern & Hunter, Law and Practice of International Commercial Arbitration, 2nd Edn., p. 406.]” In a recent judgment of the Hon’ble Supreme Court reported in 2025 (4) SCC 19 in Tomorrowland Limited -vs- Housing and Urban Development Corporation , the issue of exercise of discretion in grant of pendente lite interest and post decree interest had been examined. It must however be pointed out that the issue was examined under Section 34 of the Code of Civil Procedure and it had been held that those who come to Court claiming equity must come with clean hands and that in a commercial dispute, award of interest pendente lite or post decree are granted as a matter of course. 48. The instant case on hand is one under redemption of mortgage and not quite strictly adjudication of a commercial dispute. As pointed out by the Hon’ble Supreme Court, the discretionary power vested under Order XXXIV Rule 11 of CPC it is neither traceable to any provision of the Contract Act nor to the Usurious Loans Act or to any State Statute. Para 48 and 49 of that judgment are as follows:- “48. It is trite law that under Section 34CPC, the award of interest is a discretionary exercise steeped in equitable considerations. The law in this regard has been succinctly discussed in the Constitution Bench judgment of this Court in Central Bank of India v. Ravindra [Central Bank of India v. Ravindra, (2002) 1 SCC 367 : (2001) 107 Comp Cas 416] , which states : (SCC p. 404, para 55) “55. The law in this regard has been succinctly discussed in the Constitution Bench judgment of this Court in Central Bank of India v. Ravindra [Central Bank of India v. Ravindra, (2002) 1 SCC 367 : (2001) 107 Comp Cas 416] , which states : (SCC p. 404, para 55) “55. … (8) Award of interest pendente lite or post- decree is discretionary with the Court as it is essentially governed by Section 34CPC dehors the contract between the parties. In a given case if the court finds that in the principal sum adjudged on the date of the suit, the component of interest is disproportionate with the component of the principal sum actually advanced, the court may exercise its discretion in awarding interest pendente lite and post-decree interest at a lower rate or may even decline to award such interest. The discretion shall be exercised fairly, judiciously and for not arbitrary or fanciful reasons.” (emphasis supplied) 49. There is no gainsaying that the power to award interest ought to be exercised judiciously, aligning with equitable considerations and also ensuring neither undue enrichment nor unfair deprivation. Courts are duty-bound to assess the facts and circumstances of each case, applying the principles of fairness and justice. This discretion must reflect a balanced approach, grounded in reason, and guided by the overarching objective of equity.” 49. The entire issue therefore comes down to applying the principle of reasonableness. The property which had been mortgaged had been mortgaged after its value had been estimated in the year 1996-1997 nearly about 3 decades ago. The appreciation in the value of the property must also be taken into consideration by the Court. The fact that the Second Appeal had been pending from the year 2009 till 2024 even without paying the admitted amount is also a factor that Court should take into consideration. The Second Appeal had been admitted and substantial questions of law had been framed only on 19.06.2024. But both the appellants and the respondents could have reached out to the Court to take up the matter even earlier. It is not that there are no avenues available for listing of the Second Appeal, if circumstances warrant. Both sides knew that the interest was running and onus was on them to ensure that the matter was listed. But both the appellants and the respondents could have reached out to the Court to take up the matter even earlier. It is not that there are no avenues available for listing of the Second Appeal, if circumstances warrant. Both sides knew that the interest was running and onus was on them to ensure that the matter was listed. Therefore, the fact that the Second Appeal was pending can never be pointed out as a factor to be considered to exercise discretion with respect to the rate of interest. Additionally, Form 7 Appendix – D of the Code of Civil Procedure gives a manner in which the decree should be drawn in a suit for redemption. It provides for a commissioner to be appointed for adjudicating the amount due and payable by the mortgagor when a decree for foreclosure is to be passed. 50. It is also to be noted that the defendants /appellants are interested only in receiving back the amount which they have advanced together with interest. Since it is admitted that amount is due and payable, it would only be appropriate that the substantial question of law, is answered that the preliminary decree necessarily has to follow in a suit for redemption and an account of what is due to the appellants towards the principal and the interest on the mortgage has to be computed on the amount payable on the principal as stated in the agreement between the parties. 51. The Court could appoint a Commissioner with remit to take accounts relating to (1) the amount due as on this date to the defendants by the plaintiff on the two mortgages, the mortgage dated 06.09.1996 for a sum of Rs.4,75,000/- where the interest is 22.2% per annum and the second mortgage dated 02.06.1997 for a sum of Rs.4,00,000/- with interest at the rate of 24% per annum; (2) an account of the sum of expenses incurred by the defendants towards costs, charges and other expenses and the costs of the suit. (3) The amount due on the mortgage and the interest on the same from the date of the two mortgages at 6% per annum; (4) The Commissioner may present the accounts to this Court and the same shall be confirmed subject to any modification as may be necessary after hearing objections by both the parties and once it is determined, the plaintiff must pay in the Court within the time determined the amount due and payable. (5) Since the issue involves calculation and interest and adjustments of amounts paid, I hold that it would be appropriate that any Commissioner appointed by this Court also takes the assistance of a Chartered Accountant, if required, who may examine the books of accounts of both the plaintiff and the defendants and determine (a) the amount due under two mortgages (b) the amount paid by the plaintiff under two mortgages and (c) the amount payable under two mortgages at the contractual rate of interest, and the costs and other expenses incurred on the mortgage by other defendants and also calculate the same with interest at the rate of 6% per annum for the same. 52. Both the plaintiff and the defendants are directed to submit their accounts to the Commissioner for taking the aforesaid exercise. The above exercise should be completed within four weeks from this date. 53. The Commissioner may examine the appointment of a Chartered Accountant from a panel maintained in the office of the Official Assignee where accounts are generally examined when presented owing to insolvency for verification. 54. The remuneration paid to the Commissioner and the fees charged by the Chartered Account shall be borne by the appellants and the respondents equally. 55. This Court appoints Ms.N.Shajathi, Advocate, Ms.2167/2015, having office at No.1, Ganga Street, Sindhu Nagar, Avadi, Chennai – 600 054 as Commissioner to do the aforesaid exercise. The initial remuneration is determined at Rs.30,000/- (Rupees Thirty Thousand only) to be borne equally by the appellants and respondents. 56. List again on 26.09.2025.