T. Ganganna vs Zareena Begum

A.S. Bopanna, J.—The appellant herein is the plaintiff in OS. No. 336/2000. The plaintiff was before the trial Court seeking for a judgment and decree of recovery of money. The trial Court has decreed the suit for a sum of Rs. 27,034/- with interest at 18% p.a. from the date of the suit till its realisation. The defendant was before the lower appellate Court in RA. No. 43/2005. The lower appellate Court though had affirmed the judgment insofar as decreeing the suit for the amount claimed had reduced the interest from the date of the suit till realisation from 18% to 6% p.a. and in all other respects the judgment and decree had been affirmed. The plaintiff is therefore before this Court in this second appeal contending that the lower appellate Court was not justified in reducing the interest from the date of the suit, more particularly, in view of the statutory prevision contained in Section 80 of the Negotiable Instruments Act.

Head the learned Counsel for the appellant and perused the appeal papers.

Since in the instant case presently the question is only with regard to the reduced interest and the judgment and decree insofar as the amount is not in question, the consideration is limited to that aspect of the matter. In this regard, it is noticed that the trial Court while decreeing the suit had nodoubt considered the fact that a sum of Rs. 20,000/- had been advanced by the plaintiff to the defendant and the cheque issued towards discharge of the said amount had been dishonoured and therefore the plaintiff was entitled to receive the said amount. While considering the aspect of interest, the trial Court nodoubt has taken note of the fact that there is no agreement relating to the rate of interest between the parties and as such, the interest as contemplated u/s 80 of the Negotiable Instruments Act is to be awarded. In this regard, reliance was placed on a decision of this Court in the case of P. Mohan v. Basavaraju ILR 2003 KAR 930 by the trial Court to come to the conclusion that the interest at 18% is to be awarded. The defendant had questioned the judgment and decree dated 19.2.2005 in its entirety before the lower appellate Court. The lower appellate Court though had affirmed the judgment and decree towards repayment of amount, while considering the nature of interest to be granted had come to the conclusion that from the date of the suit the interest is to be awarded at 6% p.a. by noticing the provision contained under v of the Civil Procedure Code. In this regard, the lower appellate Court has also noticed the fact that the amount infact had been advanced towards family necessities and therefore not being a commercial transaction it was still open for the Court to exercise the power available u/s 34 of the Civil Procedure Code.

The learned Counsel for the appellant strenuously contends that the amount advanced in the instant case is for a commercial transaction, more particularly, in view of the defence that had been put forth by the defendant claiming that the said amount was advanced towards the lorry business and therefore, considering that it is a commercial transaction the lower appellate Court ought to have sustained the judgment passed by the trial Court. In this regard, it is noticed that the plaintiff would have to sustain the case based on the pleadings put forth by the plaintiff himself. In the instant case the averments in the plaint itself would indicate that the plaintiff had approached the trial Court with a pleading that the defendant and her husband had approached the plaintiff for financial assistance of Rs. 20,000/- for family necessity and promised to repay the same in three months. It is further contended by him that the defendant had orally agreed to pay interest at 2% per month and the said rate was indicated in the suit. However, the trial Court had noticed that interest at 24% p.a. cannot be granted. In a circumstance of this nature where the plaintiff himself had pleaded that the amount was advanced towards family necessity, insofar as that aspect of the matter the finding of the lower appellate Court is justified. Further, even though the trial Court had relied on the judgment which has been noticed supra, a perusal of the said judgment would indicate that even though this Court had upheld the judgment passed by the Court below in that case and had dismissed the appeal, even in the said case the trial Court had granted the interest at 18% p.a. till the date of the suit and thereafter at 6%. Further with regard to the grant of interest as contemplated u/s 34 the Hon''ble Supreme Court has also stated the nature of interest to be granted under the said provision being of three stages relating to the interest to be awarded for the periods prior to filing of the suit, the interest to be awarded pendente lite and subsequently till realisation.

Keeping all these aspects in view and considering the fact that the lower appellate Court has not disturbed the rate of interest till the date of the suit but has modified the same only from the date of the suit till realisation, I see no error in the judgment passed by the lower appellate Court so as to call for interference. Accordingly, the appeal being devoid of merits is disposed of. No order as to costs.