RAJENDRA KUMAR Vs. KESHARI CHAND

JUDGEMENT

(1.) BOTH these cases are connected with each other therefore, they are disposed of by this order.

(2.) S. B. Civil Regular First Appeal No. 69 of 1986 Rajendra Kumar vs. Keshari Chand has been filed against the judgment and decree passed by the learned District Judge, Pali dated 19. 3. 1986.

(3.) A bare reading of the provisions of Section 79 of the Act clearly shows that the interest shall be paid by the party on the basis of the rate specified in the promissory note or bill of exchange or the instrument on the principal sum from the date of the instrument till tender or realization of such amount. But a discretion has been given to the court also and it has been clearly mentioned that until such date after the institution of a suit to recover such amount as the Court directs. That means that after the institution of the suit it is the discretion with the court that it can award a lesser rate of interest then the contractual rate. As a matter of fact, Section 79 of the Act has to be divided into two parts. The first part says that the court can award interest at the contractutal rate of the interest. That means it is the duty of the court to award interest at the contractual rate. But a discretion has been conferred on the court that if the court wants to exercise the discretion then it can award lesser rate of interest from the date of institution of the suit till the recovery of the amount as the court directs. The expression "or until such date after the institution of a suit to recover such amount as the Court directs" empowers the court to award a lesser rate of interest from the date of institution of the suit. But prior to the institution of the suit there is no discretion with the court and the court is bound to award interest at the contractual rate of interest. But the moment the suit is instituted in the court then the discretion has been reserved with the court that if situation so warrants it can award a lesser rate of interest. So far as the first part is concerned i. e. before the filing or institution of the suit, the court has no discretion to award a lesser rate of interest, but subsequent to the filing of the suit the court acquires the jurisdiction if the situation so warrants it can award a lesser rate of interest. The discretion is with the court and it can exercise it. Therefore, in my opinion the discretion exercised by the learned District Judge of awarding pendente lite interest at the rate of 6% p. a. falls in the second part of Section 79 of the Act. However, the learned District Judge has not awarded any future interest i. e. interest till the date of realization. That appears to be an apparent omission.