DHANNALAL Vs. RAMKISHAN

JUDGEMENT

(1.) THE Respondent in this case was the Plaintiff in an action against the appellants to recover Rs. 60,611 -4 -0. The suit was tried by the learned District Judge of Indore and judgment was given for the Respondent for an amount of Rs. 63,227 -8 -0 besides interest on the principal amount of Rs. 50,500 and costs. The Plaintiff's claim related to the amounts which he had advanced to the Defendants from time to time in 1951 and which the Defendants had agreed to repay with interest at the rate of eighteen per cent per annum. The Defendants have now come up in appeal before us. The Plaintiff has also filed a cross -objection.

(2.) IN the appeal filed by the Defendants, Mr. Waghmare, learned Counsel appearing for the Defendants, raised two points: first, that the Plaintiff was not entitled to interest on the sum lent by him at the rate of eighteen per cent per annum; and, secondly, that the lower Court should have granted to the appellants the facility of paying the decretal amount by instalments. In the memorandum of appeal, the appellants first rested their objection as to the rate of interest on the ground that there was no contract between the parties that interest at the rate of eighteen per cent per annum would be paid. But after the suit was decided by the learned District Judged and the appeal was filed, the Madhya Bharat Interest Act, 1956 came into force on 1st August 1956. The appellants have now presented an application for leave to take the ground that under Section 3 of the Madhya Bharat Interest Act, 1956, the Plaintiff is not entitled to get interest on the principal sum of Rs. 50,500 adjudged by the lower Court at a rate exceeding nine per cent per annum. In view of the provisions of S. 3 of the Act, the leave sought by the appellants cannot be refused and learned Counsel for the Respondent also did trot, and indeed could not, object to the appellants being allowed to base their claim for the reduction of interest on S. 3 of the Act. That section, so far as it is material here, reads as follows: -

(3.) IN our judgment, the appellants' pica for instalments must be rejected. Neither on their conduct in the case nor on their financial position can this indulgence be allowed to them. The manner in which the appellants contested the Plaintiff's claim has been elaborately commented upon by the learned District judge while giving his finding as to the rate of interest agreed to between the parties and rejecting the prayer of the appellants for instatments. With that comment we agree. But besides the appellants' conduct, the most important consideration in the determination of the question whether the appellants should or should not be given the convenience of paying the (amount by instalments, is their ability to pay. The appellants say that they are not in a position to pay the amount in a lump -sum. But the appellants' own opinion about their financial position is not sufficient. The question has to be decided on the facts relating to the means and circumstances of the appellants that are, on record. Now from the appellants' own statement it is plain that today their liabilities do not exceed rupees four lakhs; that the value of their immovable property is about rupees ten lakhs; and that they also have jewellery and other immovable property of considerable value. Such being their financial position, it cannot by any stretch of imagination be argued that the appellants are not in a position to pay the amount decree against them. It most be noted that with the rate of interest scaled down and taking into account the amount deposited by the appellants in the execution proceedings of the decree under appeal, the balance which they will have to pay now is not very large. The prayer of the appellants for the grant of instalments must, therefore, be rejected.