Andhra HC (Pre-Telangana)
Indian Bank vs Mocro Electronics And Anr. on 24 June, 2004
Equivalent citations: AIR2005AP328, 2005(4)ALT612
JUDGMENT P.S. Narayana, J.
1. Indian Bank, Main Branch, Hyderabad, hereinafter referred to as 'Bank' in short, as plaintiff filed O.S. No. 335/98 on the file of II Member, Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad against the respondents/defendants for recovery of Rs. 6,82,360/- with future interest @ 23% per annum from the date of suit till the date of realization with costs. It is not in controversy that Rs. 50,000/- was paid prior to the filing of the suit by way of cheque which was honoured and subsequent to the filing of the suit an amount of Rs. 5,10,100/- had been paid. The trial Court dismissed the suit directing each party to bear their own costs on 21-8-2001 and aggrieved by the same, the Bank had preferred the present C.C.C.A. Submissions of Sri Siva Kumar:-
2. Sri Siva Kumar, the learned Counsel representing the appellant/plaintiff/Bank had taken this Court through the pleadings of the respective parties and also explained the conduct of the parties. The learned Counsel also commented that the trial Court had committed a serious error in holding that the appellant/plaintiff is not entitled to any interest since there was negligence on their part in wrongly crediting the amounts to the account of the respondents/defendants. The learned Counsel also had pointed out that none had been examined on behalf of the respondents/ defendants and this would definitely go to show that the respondents/defendants had withdrawn the amounts not by any bona fide mistake but the same is a deliberate action and in the light of the non-examination of any one on behalf of the respondents/defendants an adverse inference may have to be drawn under Section 114 of the Indian Evidence Act, 1872. While making elaborate submissions, the learned Counsel had drawn the attention of this Court to Section 72 of the Indian Contract Act 1872 and also placed reliance on certain decisions to substantiate his stand that both in law and also on the ground of equity the appellant/Bank is entitled to recover interest as prayed for and further the learned Counsel contended that even though the power of awarding costs would be discretionary, such discretion may have to be exercised in a judicious manner and on facts when the liability to repay the amount is clear and categorical, awarding no costs definitely is not proper exercise of discretion and hence the Appeal may have to be allowed with costs as prayed for.
Submissions of Sri Srinivas Chowdhry:
3. Sri Srinivas Chowdhry, the learned Counsel representing the respondents/ defendants would contend that absolutely there was no mistake on the part of the respondents/defendants in operating their account and withdrawing the amounts and for the negligence, if any on the part of the Bank, the respondents/defendants cannot be penalized. The learned Counsel also would maintain that inasmuch as the amount already had been paid the trial Court is well justified in recording the same and dismissing the suit. The learned Counsel also made a serious attempt to show that neither under the provisions of the Interest Act nor under the provisions of the Code of Civil Procedure the Bank can claim any interest since none of the ingredients of these provisions are satisfied. The learned Counsel also placed reliance on certain decisions to substantiate his stand in this regard. The Counsel also would maintain that the finding that the negligence was on the part of the Bank is a finding of fact arrived at by the trial court on appreciation of evidence which normally need not be disturbed by the appellate Court and in the light of the conduct of the parties commencing from the beginning, the trial Court is well justified in not awarding any costs inasmuch as the suit itself was dismissed in view of the fact that the total amount withdrawn by the respondents/ defendants had been repaid to the Bank.
Pleadings of the parties:
4. The appellant/plaintiff/Bank pleaded in the plaint as hereunder:
The plaintiff is a body corporate constituted under Act 5/70, the Banking Companies Act (Acquisition and Transfer of Undertakings) which had been carrying on business in Banking with its principal office at Chennai and having other branches all over India. One of such branches is at Surabhi Arcade, Bank Street, Koti, Hyderabad. The 1st defendant is a proprietory firm and 2nd defendant is the Proprietor of 1 st defendant's firm. The 1st defendant is having a current account bearing No. 2017 which is being operated by the 2nd defendant.
5. One M/s. Rekha Corporation is also having a current account with the plaintiff-Bank bearing A/c. No. 3017. On 11-1-1997 vide Telegraphic Transfer No. 408, Indian Bank of Rajahmundry Branch transferred Rs. 5,60,000/- to the credit of the said M/s. Rekha Corporation who is having an account with the plaintiff-Bank with current A/c. No. 3017. However due to oversight and by mistake the amount of Rs. 60,000/- was credited due to confusion to the account of the 1st defendant bearing current A/c. No. 2017. Having fully known the fact that a wrong entry was made in the account of the 1st defendant, the 2nd defendant without informing the plaintiff-Bank had utilized the entire amount of Rs. 5,60,000/- which does not legally belong to the defendants. The 2nd defendant had withdrawn the amount on different dates viz., 16-1-1997, 21-1-1997, 24-1-1997, 27-1-1997,30-1-1997,4-3-1997,10-3-1997, 17-3-1997, 18-3-1997, 19-3-1997, 25-3-1997,27-3-1997,29-3-1997,3-4-1997, 9-4-1997,15-4-1997,19-4-1997,22-4-1997, 23-4-1997 and 6-5-1997.
6. On 25-7-1997, M/s. Rekha Corporation had informed the plaintiff that an amount of Rs. 5,60,000/- which was transferred from Indian Bank, Rajahmundry was not credited to its account. Only then the plaintiff came to know about the said fact. When the plaintiff verified the transactions it came to light that an amount of Rs. 5,60,000/- which ought to have been credited to the account of M/s. Rekha Corporation was wrongly credited to the account of the 1 st defendant due to oversight. The amount which was wrongly credited to the account of the 1st defendant was unauthorisedly, illegally withdrawn by the 2nd defendant which is nothing but playing fraud on the plaintiff-Bank and this is nothing but unjust enrichment.
7. It is submitted that the plaintiff-Bank contacted the 2nd defendant and requested the 2nd defendant to pay back the amount which was wrongly credited to the account of the 1st defendant. The 2nd defendant admitted that the amount was wrongly credited in the 1st defendant's account and promised to refund the entire amount to the plaintiff. On 4-8-1997 towards part payment the 2nd defendant had paid Rs. 50,000/-. Subsequently in spite of repeated requests, the 2nd defendant had failed to pay the entire amount to the plaintiff-Bank. As the 2nd defendant has been avoiding to keep up the promises and was avoiding the plaintiff with malafide intention, the plaintiff-Bank filed a criminal complaint against the 2nd defendant herein for cheating and misappropriation of funds vide Crl.P. No. 241/97, dt. 1-10-1997 and the same is pending in the Criminal court. Having appropriated the money, the defendants failed to pay the amount due to the plaintiff-Bank.
8. It is submitted that the defendants 1 and 2 are guilty of committing fraud as they have illegally withdrawn the excess amount of Rs. 5,60,000/- which was wrongly credited to its account. Defendants 1 and 2 acted with dishonest intention and had illegally utilized the money knowing fully well that it does not belong to the defendants 1 and 2 but belongs to M/s. Rekha Corporation. The plaintiff-Bank without getting the amount reimbursed from the defendants 1 and 2 was forced to pay the entire amount to M/s. Rekha Corporation in order to avoid inconvenience. The action of the defendants in illegally withdrawing Rs. 5,60,000/- which was erroneously remitted in the account which does not belong to the defendants is playing fraud on the Bank and thereby caused financial loss to the plaintiff-Bank and is nothing but unjust enrichment.
9. Respondents/defendants pleaded in the written statement as hereunder:
In para-5 it was pleaded that it is true that the 1st defendant is a proprietary concern and the 2nd defendant is the proprietor of the 1st defendant. It is also true that the 1st defendant is holding account No. 2017 which is operated by the 2nd defendant. The defendants are unaware of any such account by name M/s. Rekha Corporation having current account No. 3017. the defendants are also unaware about any such transaction in respect of account No. 3017. The plaintiff admitted their fault in transferring the account to the credit of the 1 st defendant instead of account No. 3017. The said wrong entry was committed by the plaintiff-Bank. The defendants are unaware of any such excess amount lying in their account bearing No. 2017 and the 1st defendant was having good amount of business and was also having money transactions every day and they are totally unaware regarding any such wrong entry in their current account. The defendants submit that such a wrong credit had been effected due to the negligence of the plaintiff-Bank and the same was got operated by the 2nd defendant without any knowledge and the said act cannot be treated as illegal. The plaintiff-Bank categorically mentioned different dates at para 4 of the plaint of the withdrawals made by the 2nd defendant. Mentioning of various dates at this para categorically goes to show that the 2nd defendant had no criminal intention or any other intention to dupe the Bank. It was further pleaded that if really the 2nd defendant was having any criminal intention in his mind the entire amount lying to the credit of the 1 st defendant would have been withdrawn at one stroke but not on different dates as mentioned in the plaint. The defendants are unaware regarding any such information by name Rekha Corporation which is telegraphically transferred to their account from Indian Bank, Rajahmundry. It was further pleaded that immediately when the Bank officials approached and informed regarding the wrong entry and demanded to reimburse the said amount, the defendants were not having sufficient amount to meet the demand of the plaintiff-Bank and hence requested the plaintiff-Bank to grant some more time for reimbursing the amount. While requesting time, the defendants had also paid an amount of Rs. 50,000/- (Rupees fifty thousand only) towards part-payment out of the total amount of Rs. 5,60,000/-, but the plaintiff-Bank without having satisfied by the amount paid by the defendants started causing all sorts of inconvenience to the defendants. It was further pleaded that the 1st defendant is having current account with the plaintiff-Bank since many years and the plaintiff Bank without giving any respect to its customer unnecessarily caused all sorts of trouble to the defendants. This itself shows that highhanded attitude by the plaintiff-Bank towards their customers.
10. It was further pleaded in the written statement by the defendants that it is not true to suggest that the defendants had made any attempt as mentioned in paras (6), (7) and (8) of the plaint. The defendants never promised to refund the entire amount at one stroke. It was also denied that at any point of time the defendants tried to avoid repayment to the plaintiff-Bank. It is an admitted fact that the plaintiff-Bank had also filed a criminal complaint against the 2nd defendant for the offences under Sections 403, 406 and 420 I.P.C, and made all damaging allegations against the 2nd defendant and 2nd defendant was made to be in police custody and thereby subjected to imprisonment for at least 15 days without any fault or offence committed by the 2nd defendant, but finally the 2nd defendant was enlarged on bail by the Hon'ble I Additional Metropolitan Sessions Judge, Nampally. It was also pleaded that the plaintiff-Bank had entirely damaged the reputation and business of the defendants by foisting a false complaint in Criminal complaint No. 241/97. A separate notice to the plaintiff-Bank was issued by the defendants for damages and it was pleaded that the defendants reserve separate right to file proper proceedings against the plaintiff-Bank for damages and loss before the competent Court of law.
11. The defendants denied any fault or guilt by withdrawing any amount in the account and pleaded that they had not committed any fraud against the plaintiff-Bank by withdrawing the amount lying in their account and the same was operated without the knowledge of the defendants and the plaintiff-Bank cannot attribute any such offence against the defendants which was admittedly caused by mistake of the plaintiff-Bank and the defendants are not at all responsible for any such illegal act or mistake committed by the plaintiff-Bank. The defendants also denied the allegation that they have played fraud on the Bank and had illegally withdrawn the amount for the reason the question of playing any fraud against the plaintiff-Bank does not arise at all because defendant never approached the plaintiff for any such amount or made any application to the plaintiff-Bank and the entire operation of the account went on without the knowledge of the defendants and that too with the mistake committed by the plaintiff-Bank.
12. It was further pleaded that the plaintiff-Bank does not have any cause of action and the cause of action mentioned in the plaint is nothing but a created one to invoke the jurisdiction and limitation of the present suit. The defendants also dispute the territorial jurisdiction of the Hon'ble Court. It was further pleaded that due to the damage caused to the reputation of the 1 st defendant's business by filing a false complaint by the plaintiff-Bank against the 2nd defendant the 1st defendant's business is running in loss as on today and the 1st defendant is not in a position to make any such payment to the plaintiff-Bank in lumpsum. It was also further pleaded that the question of paying any interest on the amount withdrawn by the defendants does not arise at all because there was no such written agreement between the plaintiff-Bank and the defendants for payment of any such interest and without any such contract between the parties the plaintiff is not entitled to ask for any interest on the amount withdrawn by the defendants by negligence of the plaintiff-Bank and even in the event the Hon'ble Court decrees the suit the defendants are not in a position to repay the said amount at one stretch and as such in the event of any such decree the defendants may be permitted to make the repayment to the plaintiff-Bank in terms of instalments @ Rs. 1000/-. It was further pleaded that the plaintiff is also not entitled for any costs made in the plaint as the present suit and so also the criminal complaint in C.C. No. 241/97 of P./S. Sultan Bazar is foisted by the plaintiff-Bank on their own negligence and mistake of the plaintiff-Bank and hence the present suit is not at all maintainable and hence liable to be dismissed with exemplary costs.
Issues settled before the trial Court:
13. The following Issues were settled by the Court of first instance:
(1) Whether the plaintiff is entitled to suit amount?
(2) Whether the plaintiff is entitled to interest in the absence of an agreement to pay interest?
(3) Whether the defendant is entitled to pray the decree if passed in instalments?
(4) To what relief?
Evidence on record:
14. On behalf of the Bank one K. Satyanarayana was examined and Exs.A-1 to A-31 were marked and on behalf of the respondents/defendants, none had been examined.
Points which arise for consideration in this Appeal;
15. The Points which arise for consideration in the present Appeal are as hereunder:
(a) Whether the appellant/plaintiff/Bank is entitled to the rest of the claim inclusive of interest in the facts and circumstances of the case?
(b) Whether the appellant/plaintiff/Bank is entitled to costs?
(c) If so to what relief the parties are entitled to?
16. Point (a): The facts are not in dispute. Wrong crediting of an amount of Rs. 5,60,000/- and repayment thereof by respondents/defendants also is not in controversy. Inasmuch as it is only wrong crediting of amount there cannot be any express or implied contract for payment of interest. This relief was negatived by the trial Court on the ground that there was no evidence on the part of the Bank too whether Bank paid any interest on Rs. 5,60,000/- to M/s. Rekha Corporation. P.W.1, the Chief Manager of the Bank deposed that an amount of Rs. 5,60,000/- by a telegraphic transfer dated 11-1-1997 bearing No. 408 was sent by their Rajahmundry branch to the credit of M/s. Rekha Corporation which is maintaining an account with the appellant/plaintiff/Bank bearing No. 3017 but the said amount was wrongly credited to the account No. 2017 of the respondents/defendants instead of crediting the same to account No. 3017 by their staff. P.W.1 also deposed that the respondents/defendants had withdrawn the amount from the said account on various dates and on 25-8-1997 M/s. Rekha Corporation informed the Bank that an amount of Rs. 5,60,000/- was not credited to its account and on verification of the accounts it was found that the amount was wrongly credited to account No. 2017 and the Bank contacted the 2nd respondent/2nd defendant and asked him to repay the amount to the Bank which was acknowledged by him and he repaid an amount of Rs. 50,000/- on 4-8-1997 to the Bank by way of a cheque which was honoured. Subsequent thereto since he did not keep up his promise the Bank was constrained to make a Police complaint and the said case C.C. No. 650/98 on the file of Metropolitan Magistrate was registered which had ended in conviction. P.W.1 also deposed that they paid Rs. 5,60,000/- to M/s. Rekha Corporation with interest thereon. Inasmuch as all the original documents relating to the suit were seized by the Police, certified copies of the documents were marked. No doubt P.W.1 had deposed about the details relating to the persons who were responsible for making such wrong crediting of the amount. This question of wrong crediting of the amount and withdrawal thereof by respondents/defendants had been amply established by the evidence of P.W.1 and also Exs. A-1 to A-31 and the same is not in serious controversy too. Subsequent to the filing of the suit Rs. 5,10,000/- had been paid by respondents/defendants to the appellant/plaintiff/Bank. a finding had been recorded by the trial Court that inasmuch as the respondents/defendants only had operated their account and there was negligence on the part of the Bank staff in making the wrong crediting of the amount, the respondents/defendants cannot be found fault and in view of the fact that Rs. 50,000/- prior to the filing of the suit and Rs. 5,10,000/- subsequent to the filing of the suit had been paid to the Bank, no further relief need be granted to favour of the appellant/Bank.
17. It is no doubt true that in a case of this nature there cannot be any express agreement. There is no material on record relating to the specific demand made relating to interest. Much comment had been made about the different provisions of the Interest Act and the applicability thereof. Strong reliance also was placed on Lala Jwala Prasad v. Hoti Lal, AIR 1924 Allahabad 711; Krishna Bai v. Kesheorao, AIR 1925 Nagpur 245; Kuppusami Pillai v. Madras Electricity Comp. Limited, (1990) 23 Madras 41; Abdul Rahman v. Afzal Husain, AIR 1933 Oudh 259; State of Rajasthan v. Raghubir Singh, ; Dinanath v. Divanchand, AIR 1930 Bomb. 444 and Deputy Commissioner v. Ram Kumar, AIR 1941 Oudh 254.
18. It is pertinent to note that none had entered into the witness box on behalf of the defendants to explain their bona fides in withdrawing the amounts. The sum involved is not a small sum and in the facts and circumstances it cannot be said that all these withdrawals were made only under a bona fide mistake not being in know of things. Hence in view of the same, the negligence on the part of the Bank staff in making wrong crediting of the amount cannot be taken advantage of by the respondents/defendants since the conduct the respondents/ defendants also appears to be equally blameworthy. It is no doubt true that the Bank staff could have been more careful and cautious but by mistake wrong crediting of the amount was made which was taken advantage of by the respondents/defendants who had the benefit of enjoying those amounts by different withdrawals on different dates. It is not also in controversy that the total amount due to the Bank by virtue of the wrong crediting already had been repaid by the respondents/ defendants.
19. Section 72 of the Indian Contract Act 1872 dealing with Liability of person to whom money is paid, or thing delivered by mistake or under coercion, specifies:
"A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."
The object of Section 72 of the Indian Contract Act 1872 is to prevent unjust enrichment and this principle is based on the doctrine of equitable restitution. In Grindlays Bank v. Centre for Development of Instructional Technology, where foreign remittance was credited by Bank in the account of defendant by mistake and foreign company on whose behalf payment could be said to have been made had not derived or availed any benefit against the payment, the defendant cannot be allowed to retain the benefit to enrich himself and the Bank is entitled to recover the said amount from the defendant and the disputed amount being credited in accordance with commercial activity, Bank would be entitled to interest at the rate of 12% from the date of institution till realization. In N.V. Joseph v. Union of India, the Division Bench of Kerala High Court held placing reliance on Jagadish Prosad v. Produce Exchange Corporation Limited, AIR 1946 Cal. 245 an Shiba Prasad Singh v. Srish Chandra, AIR 1946 Cal. 245 held as hereunder:
"Payment by mistake in Section 72 refers to a payment which was legally due and which could not have been enforced: the 'mistake' is thinking that the money paid was due when in fact it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake of law that contract must stand and is enforceable, and on the other hand that if one party acting under mistake or law pays to another party money which is not due by contract or otherwise, that money must be repaid."
The Division Bench while dealing with the aspect of rule of equity also observed:
"Ordinarily interest cannot be claimed merely because money has been detained as the result of the defendant's acts or misconduct. But if it is possible to invoke a rule of equity by establishing the existence of a State of circumstances which attracts the equitable jurisdiction, there can be no doubt that interest can be allowed. Thus where the defendant knew from the very moment he received the first remittance of salary after the termination of his post, that he was being paid by mistake, but he continued to receive the salary every month and when after 12 months, demand was made of him for repayment, he chose to remain quiet, the principles of equity were sufficiently attracted and the defendant must pay the interest claimed."
While making these observations the Division Bench of the Kerala High Court placed reliance on Trojan and Co. v. Nagappa Chettiar, . In The Sales Tax Officer v. Kanhaiya Lal, while dealing with the aspect of mistake in Section 72 of the Indian Contract Act, 1872 the Apex Court held:
"The term "mistake" used in Section 72 Contract Act, has been used without any qualification or limitation whatever and comprises within its scope a mistake of law as well as a mistake of fact. There is no warrant for ascribing any limited meaning to the word 'mistake' as has been used therein. There is no conflict between the provisions of Section 72 on the one hand and Sections 21 and 22 of the Contract Act on the other. The true principle is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must b repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same."
Reliance also was placed on Nagar Mahapalika, Kanpur v. Sri Ram Mahadeo Prasad, AIR 1990 SC 274 and O.N.G.C. v. Association of Natural Gas Consuming INDS, in this regard. In State of Bihar v. New India Sugar Mills Ltd., while dealing with the grant of interest on equitable grounds it was held that circumstances attracting equitable jurisdiction should be made. In West Bengal Financial Corporation v. Bertram Scott (I) Ltd., while dealing with grant of pendente lite interest under Section 34 of the Code of Civil Procedure, the Division Bench of Calcutta High Court held that the Court has no discretion as to whether pendente lite interest should be granted or not and the Court is bound to grant such interest and the Court has discretion only as to the rate of interest. In Kalyanpur Cold Storage v. Sohanlal Bajpal, the Division Bench of Allahabad High Court held:
"It is true that under Section 34 of the Code of Civil Procedure the Court has right to award interest upto 6% on the principal sum adjudged but at the same time it cannot be said that the Court should award interest at that rate in every case. Where the plaintiff has already charged a very heavy interest on the initial amount of loan (24% in the present case), if the Court has thought it proper to award only 3% interest in future, the same cannot be said to be unreasonable."
In Andhra Bank v. Manney Industries, the Division Bench of this Court held:
"The Courts, undoubtedly have got discretion, but the discretion has to be exercised basing on the facts and circumstances that have been brought out therein. The discretion has to be exercised judiciously and supported by reasons from granting interest at 6% p.a. from the date of filing of the suit or rate higher than 6% p.a. and below the contractual rate of interest. In this case, the unit has become sick immediately after its commencement and thereafter they could not pay the due amount and another person has taken over the unit and created an equitable mortgage and so under these circumstances and taking into consideration that they have not earned any yield or profit out of the transactions even from the inception of the unit itself and in view of the fact that the unit had become sick immediately after its commencement, the lower Court thought it fit and granted interest at 6% per annum from the date of suit till date of realization. Therefore, granting interest at 6% p.a. from the date of filing of the suit till the date of realization is perfectly justified."
20. In the light of the aforesaid discussion it is clear that the respondents/defendants had the benefit and advantage of deriving the benefit out of the withdrawals. It is no doubt true that there are different dates of withdrawals and the said details need not detain this Court any longer for the reason that in view of the fact that there was negligence on the part of the staff of the Bank in making wrong credit and equally so Oh the part of the respondents/defendants in withdrawing the amounts, in the facts and circumstances, it would be just and equitable, especially taking into consideration that the whole amount had been already repaid to the Bank, to award interest at the rate of 6% per annum from the date of institution of the suit till the date of repayment of an amount of Rs. 5,10,000/- in view of the fact that Rs. 50,000/- already had been paid even prior to the institution of the suit. Except granting this relief in the peculiar facts and circumstances no other relief can be granted in favour of the appellant/plaintiff/Bank.
21. Point (b): It is no doubt true that awarding of costs is within the discretion of the Court. The trial Court had recorded reasons and had taken into consideration the negligence on the part of the officials of the Bank in making wrong crediting of the amount and in view of the fact that the suit was liable to be dismissed, inasmuch as normally costs follow the event, costs had been negatived. In L.I.C. v. B. Chandravathamma, it was held that awarding of costs is a matter of discretion of the Court. In S. Rajalinga Battar v. S.A. Rahim Saheb, 1970 (1) ALT 320 it was held:
"It is settled law that in the exercise of discretion in the award of costs, it is open to the Court to take into account not merely the conduct of the parties in relation to the litigation, but the antecedent conduct as well, which is an appropriate or relevant factor in adjudging the liability as to costs.
In the matter of awarding of costs, the Courts have got a wide discretion, but this should be exercised in a judicial manner and hot arbitrarily and capriciously. The discretion of courts should be exercised on sound legal principles and not by chance nor by caprice nor in temper. It should not be the result of an unbalanced appraisal of the conduct of the parties. When the antecedent misconduct of a party is made the ground for a direction that a party held to be guilty of such conduct should pay the costs of an unsuccessful party, it is incumbent on courts that they should act with great circumspection. It is necessary that the view of the Court as to misconduct of the party charged with the liability as to costs, should be based upon incontrovertible facts or data or on inferences to which no exception can possibly be taken."
The trial Court no doubt negatived the relief mainly on the ground that the conduct of the staff of the Bank is blameworthy. Be that as it may, inasmuch as after recording certain reasons the discretion had been exercised in negativing the relief of costs by the Court of first instance, unless those reasons are totally unjustified, the appellate Court would be very slow in interfering with such a finding in relation to the awarding of costs or negativing the relief of costs. The said finding is hereby confirmed especially taking the fact into consideration that this Court also is awarding interest only at 6% per annum on the amount of Rs. 5,10,000/- from the date of institution of the suit till the date of repayment made by the respondents/defendants.
22. Point (c): In the light of the foregoing discussion, the appellant/plaintiff/Bank is entitled to recover interest at 6% per annum on Rs. 5,10,000/- from the date of institution of the suit till the date of repayment of the amount made by the respondents/defendants during the pendency of the suit. Except granting this relief, no other relief can be granted. Hence, the Appeal is partly allowed to the extent indicated above and this Court directs each party to bear their own costs.