July 21, 2009 LIC OF INDIA ..... Through Mr. Mahender Singh, Advocate with Mr. Ankur Goel, Advocate v. GANGA PARSHAD .....

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) Sometime in October 1990, respondent had taken a loan of Rs.1,80,000/- from the appellant for constructing a house on a plot of land. The respondent who was to repay the loan in installments failed to abide by the schedule of repayment resulting in filing of a suit against him by the appellant under Order XXXIV of the Code of Civil Procedure (hereinafter called the `Code’) for a sum of Rs.3,64,156/including interest @ 18% compounded half-yearly. The learned Additional District Judge vide his judgment dated July 09, 1997 passed a decree for a total sum of Rs. 3,64,156/- as claimed in the suit but declined to grant interest @ 15% over and 2009:DHC:2822 above, 2½% as penal interest from the date of filing of the suit till realization. Feeling aggrieved by non-grant of interest at the aforesaid rate and for the aforesaid period, the appellant has preferred the present appeal. A perusal of the impugned judgment shows that the respondent admitted the execution of the loan documents and also his liability to pay. The only defence that he raised for non-payment was that he had met with an accident as a result of which his leg got fractured and he became handicapped. Hence, he pleaded for relaxation in the matter of interest. The learned Additional District Judge in the impugned judgment has observed that the respondent was always ready and willing to settle the matter with the appellant but the appellant insisted on charging penal interest @ 2/½% over and above the agreed rate of interest and it was for this reason that the matter could not get settled. In appeal before this Court, the respondent has again pleaded that he could not repay the loan amount because he had met with an accident. As per the counsel, the respondent has already paid the suit amount and the penal interest chargeable up to the date of filing of the suit and that the only relief that he sought before the Additional District Judge and is now seeking before this Court is for waiver of agreed interest and penal interest for the period the suit had remained pending in the court till realization of the decretal amount. It is submitted by learned counsel that the appellant has been granting concession to other persons in the matter of interest and in this regard, he has relied upon a letter dated November 27, 1996 wherein there is a reference to the case of one Shri R.N.Rai, Advocate who was given relief in the levy of interest. In view of the said letter, it is submitted that the respondent who had genuine reason for not making the payment in time also deserved relaxation in the levy of interest and the same has been rightly granted by the learned Additional District Judge. As against the above submissions, it is submitted by learned counsel for the appellant that in view of the terms of loan having been agreed upon by the respondent he was liable to pay the agreed rate of interest and the penal interest not only till the filing of the suit but also during the pendency of the suit till realization of the decretal amount. Therefore, it is further submitted that the learned Additional District Judge ought to have granted the agreed rate of interest for the aforesaid period as well. It is also submitted that as the suit was filed under Order XXXIV of the Code, the trial Court was required to pass a preliminary decree under Order XXXIV rule II of the code, ordering that an account be taken of what was due to the plaintiff as on the date of such decree towards the principal and interest on the mortgage, the cost of the suit, if any awarded and other costs charges and expenses properly incurred by him up to that date in respect of the mortgage-security, together with interest thereon. Learned counsel, therefore, has prayed for passing appropriate order in terms of Order XXXIV of the Code. As already noticed hereinabove, the respondent never contested before the trial Court his liability to pay the suit amount or the agreed rate of interest and the penal interest. He merely sought indulgence of the appellant prior to the filing of the suit and that of the Court consequent to the filing of the suit for waiver of agreed and penal interest during the pendency of the suit till realization. It is true that the suit was filed under order XXXIV of the Code but as the respondent had admitted having executed the loan documents and his liability to pay there was really no issue before the trial Court to adjudicate upon so as to have passed a decree in terms of order XXXIV of the Code. The trial Judge has already passed a decree for the amount claimed upto the filing of the suit. The only issue that remains is with regard to the interest payable during the pendency of the suit till realization. In my view the trial Judge rightly held that in so far as the payment of interest pendentelite the suit is concerned that is the discretion of the court. Having regard to the fact that the respondent had fractured his leg and also in view of the fact that the appellant had been granting concession in the matter of interest in other cases, I feel that the trial Court rightly exercised its discretion in favour of the respondent. In the facts and circumstances of the case, I find no infirmity in the order of learned Additional District Judge. The appeal is therefore dismissed. Learned counsel for the respondent has handed over to the counsel for the appellant a cheque No.309917 dated July 21, 2009 for a sum of Rs. 17,857/- towards the balance amount due as per the judgment of the learned Additional District Judge. Counsel for the appellant has accepted the cheque, subject to the calculation and without prejudice to the rights of the appellant. It is clarified that in case after calculation the appellant finds that the amount as given by the respondent is not in accordance with the judgment of the learned Additional District Judge, the appellant shall intimate to the respondent the amount due as per its calculation and in case there is some deficiency the appellant shall make good the same within four weeks of the intimation. The appeal stands disposed of.

REKHA SHARMA, J. JULY 21, 2009 PC/GN