UNION BANK OF INDIA Vs. DALPAT GAURISHANKAR UPADYAY

JUDGEMENT

(1.) THIS case has been referred to the Full Bench at the instance of brother, Dhanka J. The controvery that arose for determination relates to interpretation of the expression "principal sum adjudged" as used in section 34 of the Code of Civil Procedure, 1908.

(2.) THE suit in relation to which this controversy arose was filed by the Union Bank of India for recovery of a sum of Rs. 5,55,259. 35 with further interest thereon at the rate of 16. 5 per cent. per annm with quarterly rests from the date of the suit till payment. The plaintiffs relied on various documents in support of its contention that the defendant had agreed to pay the amount of interest to it with quarterly rests. An ex parte decree against the defendant was prayed for with interest pendente lite and post-decretal. The controversy arose as to the amount on which pendente life or post-decretal interest can be granted. The amount of Rs. 5,55,259. 35 for which the suit had been filed was admittedly inclusive of interest due till the filing of the suit. Section 34 of the Civil Procedure Code empowers the court to award pendente lite and post-decretal interest at such rate as it may deem reasonable on the "principal sum adjudged". The question for determination was whether "the principal sum adjudged" would mean the original sum lent or the aggregate amount found due and payable on the date of the suit inclusive of the amount of interest added to the principal amount with or without periodical rests in accordance with the agreement between the parties. A similar expression has also been used in Order 34, rule 2 and order 34, rule 11. The learned single Judge trying the suit noticed that there was a clear conflict of opinion between the Division Bench judgments of this court in Kaluram v. Chimniram, AIR 1934 Bom 46, and two later unreported judgment in Jaganath Pigments and Chemicals v. Bank of Baroda [1989] 65 Comp Cas 393 (Bom) and Central Bank of India v. Haribhau Kakade (F. A. No. 999 of 1987, decided on March 16, 1988 ). The learned judge also noticed the conflict of opinion between the view expressed by this court in the later unreported judgments and the views of different High Courts. It is in this bank ground, more particularly in view of the fact that a similar question often arises for consideration in a number of cases especially in bank suits, that the learned single judge recommended reference of the following questions to a larger bench :

(3.) WE have heard at length Shri Tulzapurkar, learned counsel for the plaintiffs bank. In view of the importance of the controversy we also allowed the Indian Bank's Association to intervene and heard its learned counsel, Shri Kapadia. At our request, learned counsel, Shri R. A. Dada, argued the case on behalf of the defendant who was unrepresented before us. We have carefully considered the various submissions.