B. Shivananda Vs. Andhra Bank Ltd. [1994] INSC 188 (18 March 1994)

Ramaswamy, K. Ramaswamy, K. Venkatachala N. (J)

CITATION: 1994 SCC (4) 368 1994 SCALE (2)738

ACT:

HEAD NOTE:

ORDER

1. Leave granted.

1 (1992) 4 SCC 662: 1993 SCC (Cri) 13 + From the Judgment and Order dated 7-2-1992 of the Andhra Pradesh High Court in C.R.P. Nos. 2827 of 1989 and 3423 of 1989 369 2. We have heard both counsel.

3. The respondent filed OS No. 74 of 1979 on the file of the Additional Subordinate Judge, Ananthpur, Andhra Pradesh on 11-6-1979 seeking a preliminary decree for sale of properties covered by two simple mortgages, dated 3-7-1976 and 13-12-1976 and a charge on the hypothecated moveables and immovables, moveables have been mentioned in Schedule 'B' and a personal decree against appellant and others was sought for the decretal amount with future interest and costs. The suit was decreed ex parte on 13-3-1986.

Thereafter, two applications were filed one by the respondent Bank claiming interest at the rate of 16 1/2% on the decretal amount and another by the appellant. The appellant contended that no interest can be granted since the judgment did not specify the liability relating to payment of future interest. The trial court allowed the application of the appellant and dismissed the application of the respondent-Bank. On revision filed by the Bank, the High Court, by its order dated 23-9-1989 allowed the revision of the Bank and dismissed the application of the appellant. Thus, this appeal by special leave.

4. We need not go, in depth, into the controversy, raised in the case but suffice to state that Bank sought a relief in the plaint for payment of an amount specified and interest on the principal amount of Rs 5,25,000. With interest accrued thereon till date of suit, the amount came to Rs 6,89,917.79 P. Section 152 CPC, clearly gives power to the court to amend clerical or arithmetical mistakes in the judgment and decree or order or any errors arising therein from any accidental slip or omission. The same may, at any time, be corrected by the court either of its own motion or on the application of any of the parties to the suit.

Therefore, it is not necessary that the aggrieved party should necessarily file an appeal or review for effecting correction of the judgment or decree or order. But in this case, as seen, that the claim for future interest at 16 1/2% was made in the suit itself which admittedly, is the contracted rate of interest. Therefore, the Bank is entitled to claim interest in terms of the contract at 16 1/2% from the date of lending till the date of filing of the suit. However, the court has discretion under Section 34 CPC to award interest. Admittedly, the loan was taken for construction of theatre. In other words, the loan was for a commercial transaction. In the facts and circumstances of this case, we consider it just and proper that the appellant should pay simple interest at the rate of 16 1/2% per annum on the principal amount claimed in this suit from the date of the decree till the date of realisation. This should be confined to this case only, on the peculiar facts of this case. It is stated in the appellant's written arguments that as on date, a sum of Rs 2,53,000 had already been paid and the appellant shall pay the balance amount along with future interest within six months from today. We permit him to make payment accordingly. In the event any default is committed by the appellant, the benefit of this Judgment will not be available to the appellant. The appeal is 370 accordingly allowed to the above extent but in the circumstances, without costs.

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