Patna High Court
Bank Of Bihar Ltd. vs Ramghulam Singh And Anr. on 11 January, 1932
Equivalent citations: 143IND. CAS.43, AIR 1933 PATNA 207
JUDGMENT Wort, J.
1. The learned Subordinate Judge in this case has refrained from expressing any view; with regard to interest pendente lite, and by reason of his silence under Section 34 of the code of Civil Procedure he must be deemed to have refused to allow such interest, In those circumstances the plaintiff Bank appeals against the decision of tine-learned, Subordinate Judge on this point.
2. The Bank's claim is for Rs. 5,000 on a promissory note lent, to the defendant at the rate of 9 per cent per annum with half yearly rests. The learned Subordinate Judge, as I have indicated has allowed the claim with interest Upon the date of the decree at 6 percent, per annum.
3. The learned Advocate for the respondents contends that the refusal of the learned Subordinate Judge to award interest does not form part of the decree and therefore it is not a decree within the meaning of Section 2 of the Civil Procedure Code, and consequently the plaintiff has no right of appeal to this court. A decree under Sub-section (2) of Section 2 of the Code means.
The formal expression of an adjudication, which so far as regards the court expressing it conclusively determines the fights of the parties with regard to all or any of the matters in controversy in the suit etc.
4. And it is contended that the claim which the plaintiff-appellant now makes to interest pendente lite is not a right within the meaning of Sub-sections (2) of Section 2, nor was it a matter in controversy in the suit. In one sense of the word, perhaps, it was not in controversy in that no evidence was given, although the plaintiff claimed such interest to his plaint. The argument that it was not a right within the meaning of Sub-section (2) was based on the construction placed by the learned Advocate on Section 31 of the Civil Procedure Code. Section 34 admittedly places a discretion in the hands of the trial Court to award such interest, and it is contended that, so long as it is a matter of discretion it cannot be said to-be a right of the plaintiff. In my judgment, that argument cannot be supported. A light in the sense used in Sub-section (2) of Section 2 of the Code is not synonymous with a right in the sense of a relief which the plaintiff is entitled to in any event. In my judgment the fact that the court is given a discretion in the matter, makes it nonetheless a right of the plaintiff that is to say aright which he may claim. Whether he succeeds in that claim or not, is another matter. Undoubtedly in this case the plaintiff claimed interest pendente lite as I have already stated. That was refused. The plaintiff is dissatisfied with the decision of the learned Subordinate Judge in that regard, and in my judgment, that gives him a right to appeal to this Court on that question.
5. The question in this case is whether in the circumstances interest should be given. It is difficult to find any reason why interest should not be given by the learned Subordinate Judge and I very much doubt that if the matter had been present in the mind of the learned Subordinate Judge when he was delivering his judgment he would not have given interest pendente lite. As I have said It is difficult to see why the plaintiff Bank should be deprived of interest which was its due under the contract merely by reason of the fact that It brought the suit to enforce its rights under the promissory note. In my judgment the Bank is entitled to such interest and the discretion which the Code gives the court could have been exercised in favour of the Bank.
6. In the case of Sophia Orde v. Alexander Skinner 7 I.A. 196 : at p. 211 : 3 A. 91 : 7 C.L.R. 295 : 4 Ind. Jur. 476 : 3 Shome. L.R. 272 : 3 Suther 788 : 1 Sar. 178 (P.C.) their Lordships of the Judicial committee of the Privy Council stated:
that the rate of interest, however, to be allowed on the principal, debt up to the date of the decree, ought to be that if any, which has been fixed by contract, express or implied between the parties etc.
7. In this case, in my judgment, the proper rate of interest should have been allowed up to the date of the decree; it should be the contractual rate, namely, 9 percent.
8. With these observations would allow the appeal with costs.
James, J.
9. I agree.