Beli Ram Sareen and Others vs Central Bank of India and Others

R.L. Anand, J.—This is a Regular Second Appeal and has been directed against the judgment and decree dated 3.2.1997 passed by the District Judge, Ambala, who held as follows:-

"It was a commercial transaction. Hence in the interest of justice, in view of the entire circumstances and the authority quoted above and the arguments of the learned counsel for the appellant. I am of the view that the appeal must succeed and hence the interest has to be calculated at the rate of 17 per cent per annum with quarterly rests on the principal amount claimed in the suit and not on the principal amount initially advanced, as there is nothing else referred to above by the counsel for the respondents to counter-act the only question referred to above in the appeal."

Some facts can be noticed in the following manner. The Central Bank of India (hereinafter called ''the Bank'') filed a money suit against the appellant and claimed a sum of Rs. 1,77,128.45 upto 15.7.1981 and further interest at the rate of 17 per cent per annum from the date of the filing the suit till the date of the realisation. Besides, a sum of Rs. 11,570/- on account of stamp for plaint, Rs. 2/- stamp for power of attorney, Rs. 2,230/- as pleader fee, Rs. 7.25 for process fee and Rs. 6/- on the miscellaneous, totalling Rs. 13,815.25 as costs was also claimed. In all a sum of Rs. 1,90,943.70 was claimed.

The suit was decreed by the trial Court which passed a preliminary decree in the following terms:-

"In the light of reasons recorded in the above issues, the suit of the plaintiff is decreed and it is declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated on account of principal and interest applied upto 15.7.1981 is Rs. 1,77,128,45 and further interest at the rate of 17 per cent per annum from the date of filing the suit, till the date of realisation and a sum of Rs. 11,570/- on account of stamp for plaint, Rs. 2/- stamp for power of attorney, Rs. 2230/- pleader''s fee, Rs. 7.25 for process fee and Rs. 6/- misc. thus, total sum of Rs. 13,815.25 for the costs of the suit awarded to the plaintiff making in all the sum of Rs. 1,90,943.70."

The Bank did not challenge this preliminary decree and applied under Order 34 Rule 5(3) C.P.C. for passing a final decree, which was passed in the following terms:-

"In the light of discussion forgoing, application filed by plaintiff/applicant bank is hereby allowed and final decree be prepared in accordance with the terms of preliminary decree. However, it is made clear that plaintiff-applicant bank will be entitled for pendente lite and future interest at the rate of 17 per cent per annum on the principal amount of loan."

The Bank was not satisfied with the wording of the final decree and it filed the appeal before the Court of District Judge, Ambala who accepted the appeal of the Bank and modified the final decree dated 5.6.1995.

Aggrieved by the judgment of the first appellate Court, dated 3.2.1997, the judgment-debtors have come in appeal.

I have heard Shri Vinay Mittal, Senior Advocate for the appellants and Shri R.K. Aggarwal, Advocate, on behalf of the respondent and with their assistance have gone through the record.

The short point for determination would be whether the impugned decree passed by the District Judge can be endorsed or not?

I have already reproduced above the operative portions of the preliminary decree, final decree and the order passed by the learned District Judge. A combined reading of the three would show that in the preliminary decree the trial Court granted a decree for a sum of Rs. 1,77,128.45 and further interest at the rate of 17 per cent per annum from the date of filing the suit till the date of realisation besides incidental charges and in all the Bank was awarded a sum of Rs. 1,90,943.70. In this preliminary decree, there was no mention by the trial Court that he wanted to give the interest to Bank by quarterly rest. Unfortunately, the Bank did not challenge this preliminary decree in appeal. Thereafter, the Bank filed an application under Order 34 Rule 5(3) C.P.C. and applied for the final decree. The final decree has not been drafted in consonance with the provisions of the preliminary decree. While granting final decree the Court was not justified in remarking that the decree-holder wilt get interest at the rate of 17 per cent on the principal amount. This would tantamount the variation of the preliminary decree which has not even been challenged by the judgment debtor. The Bank was not satisfied with the wording of the final decree dated 5.6.1985. The learned District Judge, in the opinion of this Court, gave another twist to the preliminary decree by holding that the Bank will be entitled to realise the interest at the rate of 17 per cent (with quarterly rest). Here, in the opinion of this Court, the learned District Judge has exceeded his jurisdiction and he has gone behind the wording of the preliminary decree.

The learned counsel appearing on behalf of the Bank submits that the preliminary decree has merged into a final decree and as per the agreement of loan the Bank was entitled to the interest at quarterly rest, therefore, the decree passed by the learned District Judge is sound. I am not convinced with the submission raised by the counsel for the respondent. If the trial Court at the first instance and at the time of the passing of the final decree had granted interest with quarterly rest to the Bank then there was some logic in the argument raised by the learned counsel for the respondent. The trial Court has not granted interest to be calculated on quarterly rest and moreover, the Bank has not given challenge to the preliminary decree. It is not open now for the Bank to say that it is entitled to interest on quarterly rest. Both the decrees i.e. preliminary and final decree, have to be interpreted harmoniously. If the final decree has gone beyond the scope of preliminary decree to that extent it is not binding on the parties.

In these circumstances, the judgment dated 3.2.1997, is hereby partly modified and for the sake of clarification, it is declared and ordered that the Bank shall be entitled to Rs. 1,90,943.70. Besides, it will also get interest at the rate of 17 per cent per annum on the amount of Rs. 1,77,128.45 starting from 16.7.1981 till the amount is entirely paid to the Bank. Copies Dasti to both the parties.