COIMBATORE SRI VENKATACHALAPATHI NIDHI, LTD Vs. GKNANJAPPA GOUNDAN

JUDGEMENT

(1.) The plaintiff is the appellant. The suit out of which this appeal arises was instituted by him for the recovery of Rs. 5,000 with interest on 5 Hundis, Exs. A to A-4. A decree has been given in his favour for the principal amount. The learned Judge having refused to award him interest on the principal amount, in this appeal the plaintiff claims that he is entitled to interest.

(2.) The suit was instituted under Order 37 of the Civil Procedure Code under the special rules relating to summary procedure on negotiable instruments. Under Rule 2(2)(a) of this order the plaintiff is entitled to get interest on the amount claimed in accordance with the provisions of Section 79 or Section 80, as the case may be, of the Negotiable Instruments Act of 1881 up to the date of the institution of the suit, or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit. Since there is no agreement to pay any interest in the documents, Section 79 is obviously inapplicable and so under Order 37, Rule 2(2)(a) the plaintiff will be entitled to get only the statutory rate of interest, 6 per cent., under Section 80. Bui the learned Judge refuses to apply Section 80 because he says that the operation of this section is excluded by Order 37, Rule 2. We have read the section carefully. We are not able to see how the operation of Section 80 of the Negotiable Instruments Act is excluded by Order 37, Rule 2, Civil Procedure Code. On the other hand, it seems to us that Order 37, Rule 2 makes Section 79 or Section 80 as the case may be specifically applicable to a case filed under Order 37. We cannot therefore accept the opinion of the learned Judge that the plaintiff is not entitled to the statutory interest mentioned in Section 80.

(3.) It is argued on behalf of the appellant that he is entitled to 33 1/3 per cent, which he has claimed in the plaint. He contends that Order 37, Civil Procedure Code, supports him having regard to the language of Rule 2, namely, "the allegations in the plaint shall be deemed to be admitted". We are not able to accept this contention. No authority in support of the plea has been cited. On the other hand it appears to us that that interpretation cannot be accepted, because in rule (a) of. Clause (2) special provision for interest is made to the effect that Section 79 or Section 80 of the Negotiable Instruments Act will apply as the case may be. Therefore, the admissions of the allegations in the plaint relied upon by the appellant under Clause (2) cannot refer to the award of interest which is specifically provided for in Clause (a). We would, therefore, allow the appeal and award interest at the rate of 6 per cent, from the date of the Hundis to the date of the decree and subsequent interest also at the same rate thereafter.