Lic Of India vs Ganga Parshad
2009 Latest Caselaw 2736 Del

                                                   UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                            RFA No.307/1997


                                Date of Decision: July 21, 2009


       LIC OF INDIA                 ..... Appellant
                         Through Mr. Mahender Singh, Advocate with
                         Mr. Ankur Goel, Advocate

                   Versus


       GANGA PARSHAD             ..... Respondent
                   Through Ms. Anusuya Salwan, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

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

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