MELLACHERUVU RAJESWAR RAO Vs. CHITLURI SATYAM

JUDGEMENT

(1.) THIS is the memorandum or review, seeking to review the decree and judgment of this 1st appellate Court dated 20 -12 -2012 made in A.S. No. 789 of 2002. The Additional District Judge's Court, Khammam, in O.S. No. 1 of 1998 by decree and judgment dated 21 -01 -2002 (in the suit for recovery of Rs. 6,12,900/ - based on equitable mortgage dated 16 -12 -1997 for the debt of Rs. 6,00,000/ - with interest) only granted simple money decree on the principal sum adjudged of Rs. 6,12,900/ - with interest @ 24% p.a. from the date of suit 22 -01 -1998 till date of realization and with costs in favour of two plaintiffs against the sole defendant. It is the plaintiffs -appellants having been aggrieved for not granting the equitable mortgage preliminary decree preferred the appeal attacking the trial Court's said money decree with main contention that the trial Court even impounded the document with deficit stamp duty and penalty by order dated 04 -08 -2000 with observation of no registration required(for the memorandum of deposit of title deed), erred in not granting the mortgage decree and hence to pass mortgage preliminary decree by modifying the trial Court's decree and judgment. In the appeal, during its pendency, 2nd plaintiff -2nd appellant died and his legal -heirs brought on record as appellants 3 to 5 and similarly, from sole defendant -respondent died, his legal -heirs brought on record as respondents 2 to 6 and the 7th respondent R. Venkateswara Rao was later impleaded in the appeal. This 1st appellate Court finally disposed of the appeal by its dismissal judgment dated 20 -12 -2012 while confirming the simple money decree granted by the trial Court, however reduced the rate of interest from 24% p.a. from date of suit till date of realization granted by the trial Court. The observation of this Court in the appeal dismissal judgment dated 20 -12 -2012 in reducing the rate of interest is that, 24% p.a. interest granted from date of suit till date of realization by the trial Court appears to be penal without giving any reasons and keeping in view the provisions under Section 34 C.P.C., interest is granted at 12% p.a. from date of suit till date of decree and thereafter, at 6% p.a. till date of realization.

(2.) SAID observation is now subject matter of the review with the contentions in the grounds of review that it is an error apparent on the face of record, that despite no cross -objections of the defendants -respondents from the factum of the cross -objections filed belatedly with petition in A.S.M.P. 3052 of 2012 to condone the delay of 3,800 days was not condoned, this appellate Court misapplied the provisions of Section 34 C.P.C. by ignoring the factum of the money transaction in question is a commercial transaction and the reason given to reduce the interest rate from 24% p.a. as appears to be penal is contrary to the pleadings and evidence on record and law and without assigning any reasons to say penal though the trial Court held that the plaintiffs are entitled to the amount with interest at 24% p.a. and hence to review the appeal judgment and pass such other just orders.

(3.) (D.B.) A.P. on the scope of review, no new principle is laid down bu.WHEREAS it is the contention of the defendants -respondents that there is no error apparent on the face of record and even the cross -objections not received by condoning the delay and the S.L.P. impugning the same ended in dismissal without admission, when it is brought to the notice of the appellate Court, for which entire matter is at large in reducing the rate of interest within the discretionary appellate power, there are no grounds to review and the remedy if at all is to file an appeal (2nd appeal from any question of law involved) and not to seek review as there is a distinction between error apparent on the face of record and any erroneous conclusion and as such, when the observation of the appellate Court is very clear with reason and application of law in its saying "the 24% p.a. interest granted from date of suit till date of realization by the trial Court appears to be penal without giving any reasons and keeping in view the provisions under Section 34 C.P.C. interest is granted to 12% p.a. from date of suit till date of decree and thereafter, at 6% p.a. till date of realization" and thereby sought for dismissal of the memorandum of review with costs.