*HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE NOUSHAD ALI +WRIT PETITION No.22752 of 2003 (per NA, J.) %FRIDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN # Andhra Bank, Saifabad Branch, Hyderabad. ….. PETITIONER Vs. Valluripalli Nagarjun, S/o. Sri V.R. Rao, Chairman, Intelli Street Edition, New Jersey – 00037, C/o. Smt. V. Hemalata, Plot No.40, Road No.5, Jubilee Hills, Hyderabad – 500 033., and another. ….RESPONDENTS !Counsel for the Petitioner : Mr. Alluri Krishnam Raju ^Counsel for the Respondents : Mr.S.Chakrapani <Gist: >Head Note : ?CITATIONS: (1) AIR 1990 CALCUTTA 146 (2) (2003) 6 SCC 675 (3) (2002) 1 SCC 367 (4) (1992) 1 SCC 508 HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.22752 of 2003 BETWEEN: Andhra Bank, Saifabad Branch, Hyderabad. ….. PETITIONER And 1. Valluripalli Nagarjun, S/o. Sri V.R. Rao, Chairman, Intelli Street Edition, New Jersey – 00037, C/o. Smt. V. Hemalata, Plot No.40, Road No.5, Jubilee Hills, Hyderabad – 500 033., and another. ….. RESPONDENTS Counsel for the petitioner: Mr. Alluri Krishnam Raju Counsel for the first respondent: Sri S. Chakrapani The Court made the following order: ORDER: (per Hon’ble Sri Justice Noushad Ali) The petitioner-Bank filed this writ petition against the order dated 12.09.2003 passed in R.A.No.36 of 2003 made by the Debt Recovery Appellate Tribunal, (DRAT) Chennai, insofar as the order granting interest pendente lite in lump sum instead of at the rate agreed to by the respondents. The respondents herein were sanctioned a term loan of Rs.600 lakhs, secured by an equitable mortgage by deposit of title deeds of the property consisting of 5th and 6th floors of the premises called “My Home Sarover Plaza” situated at Saifabad, Hyderabad, through the General Power of Attorney (GPA) holder Smt. V.Hemalata (mother of the first respondent). The respondents availed the said loan with an undertaking to repay with interest at Prime Lending Rate (PLR) of the petitioner-Bank + 2%, with quarterly rests in 72 monthly installments commencing from February, 2000. It was also agreed that the rate of interest might be revised by the Bank from time to time as per the directions of the Reserve Bank of India. An agreement dated 28.12.1999 was accordingly entered into, inter alia, with a stipulation in clause-5 of the said agreement that the petitioner- Bank would have a right to recall the entire loan amount outstanding in the account by a written notice, notwithstanding the loan was repayable in monthly installments. The respondents defaulted on the repayment schedule from June 2000 and also a portion of interest payable for March 2002 and the loan was liable to be recalled as provided in clause-5 of the agreement. The efforts made by the petitioner-Bank to impress upon the respondents to pay the overdue installments and regularize the account in order to avoid classification of the account as a non-performing asset by 30.03.2002, did not yield results. The respondents were advised through a legal notice dated 23.02.2002, telegram and fax as well, to repay the overdue amount of Rs.1,08,29,080/- on or before 30.03.2002, duly cautioning that on the failure to regularize, the loan amount would be recalled and proceedings would be initiated for the recovery of the entire outstanding amount. The respondents received the said notice. The first respondent through his GPA made a representation dated 23.03.2002 requesting to divide the loan amount in two equal parts in the names of the respondents separately. As the respondents failed to regularize the account, another legal notice dated 29.05.2002 was issued. The second respondent responded to the said notice and sought time till 15.06.2002. The first respondent, despite receipt of notice, did not respond. As all the efforts failed, the petitioner-Bank filed O.A.No.272 of 2002 before the Debt Recovery Tribunal (DRT), Hyderabad on 20.06.2002 for recovery of Rs.5,94,47,566.64 ps., together with interest pendente lite and future interest @ 16% p.a. with quarterly rests and for costs. The first respondent set up a plea before the DRT, Hyderabad that he availed loan for Rs.3 crores only. He denied that the loan was jointly sanctioned along with the second respondent and pleaded that his property was given in security only for Rs.3 crores and therefore his liability would not extend beyond Rs.3 crores. He further pleaded that he made a proposal for One Time Settlement (OTS). The second respondent filed separate written statement and put the petitioner to strict proof of various averments made in the O.A. relating to execution of documents and creation of mortgage. Pending the O.A., the first respondent filed I.A.No.491 of 2002 in I.A.No.1395 of 2002 before the DRT, Hyderabad, seeking permission to transfer his portion of mortgage property with due disclosure of the Bank’s interest in the said property. On the dismissal of the said I.A., he preferred an appeal in M.A.No.98 of 2003 before the DRAT, Chennai. In the said appeal the first respondent agreed to deposit the entire amount Rs.5,94,00,000/- and sought for liberty to keep open the question as to interest pendente lite and post decree interest. The DRAT, Chennai accepted the proposal and directed the first respondent to deposit the said amount after the DRT, Hyderabad decided the interest within a period of two weeks. The DRAT, Chennai, recorded the undertaking that no appeal would be preferred on the said claim amount, with due liberty to challenge the rate of interest, if aggrieved. Thereafter, the DRT, Hyderabad, conducted enquiry by examining the official of the petitioner-Bank as AW.1 and marked Exs.A.1 to A.25. No evidence was adduced by the respondents. In the O.A, the petitioner-Bank insisted payment of interest as agreed i.e., @ 16% p.a. with quarterly rests from the date of application till the date of realization, but the first respondent pleaded for waiver of interest in toto. The DRT, Hyderabad, accepted the contention of the first respondent and accordingly passed the order dated 27.08.2003 declining to grant interest pendente lite but granted post decree interest @ 6% p.a. Aggrieved by the said award, declining interest pendente lite , the petitioner-Bank preferred an appeal in R.A.No.36 of 2003 before the DRAT, Chennai. The DRAT, Chennai, allowed the said appeal by order dated 12.09.2003 to a limited extent awarding a lump sum interest of Rs.10,00,000/-. Aggrieved thereby the petitioner-Bank has filed this Writ Petition. Heard Sri Alluri Krishnam Raju, learned counsel for the petitioner and Sri C. Kodanda Ram, learned Senior Counsel instructed by Sri S. Chakrapani, on behalf of the respondent No.1. The learned counsel for the petitioner-Bank would contend that the DRT, Hyderabad and DRAT, Chennai as well were not judicious in their approach to the matter of grant of interest pendente lite. The respondents availed the loan for commercial purpose and defaulted on the repayment schedule. The respondents were not responsive despite several appraisals and the petitioner-Bank was compelled to seek legal remedies. He would contend that neither the total waiver of interest as directed by the DRT, Hyderabad nor the meager interest of Rs.10,00,000/- as awarded by the DRAT, Chennai, deserve acceptance and the interest as agreed is liable to be awarded. The learned Senior Counsel Sri Kondanda Ram, in reply, would contend that grant of interest pendente lite is a matter within the discretion of the Tribunal. He would contend that respondent Nos.1 and 2 approached the Bank for a loan of Rs.3 crore, each, through their GPA Smt. V. Hemalatha, but the loan was sanctioned jointly to both the respondents against the collateral security/equitable mortgage of immovable property of separate and distinct portions consisting of 5th and 6th floors of the schedule property. As the loan was disbursed to the respondents separately, the Bank should not insist on realization of the entire dues from the first respondent alone. The first respondent was ready to settle his portion of loan account with interest and proposed for a One Time Settlement subject to waiving compounding interest, penal interest and liquidity damages within a period of one year. The petitioner-Bank did not consider the said offer. The first respondent ultimately undertook to pay the entire loan amount without reference to the second respondent as he was concerned about his reputation in the market being the Founder, Chairman, President and Chief Executive Officer of Intelligroup. Though the obligation of the first respondent is only to the extent of 50% of the dues; and despite being legally protected, the first respondent chose not to contest the case and accordingly undertook before the DRAT, Chennai, in M.A.No.98 of 2003 to pay the entire amount without reference to the liability of the second respondent. He would contend that despite total waiver of interest by the DRT, Hyderabad, the respondents accepted the impugned order of the DRAT, Chennai, only to avoid further litigation. Reliance was placed by the learned counsel on United Bank of India v. Rashyan Udyog and others[1], Surya Dev Rai v. Ram Chander Rai and others[2] and Central Bank of India v. Ravindra and others[3]. Whether the respondents sought a joint loan or individually to the extent of Rs.3 crore each, is not relevant to the present dispute in the writ petition. The first respondent did not contest the said issue, despite the petitioner-Bank adduced its evidence and instead agreed to discharge the entire liability. It is therefore not open to the first respondent to canvass here that his liability was limited to 50% of the loan only. In the circumstances, the said plea is misconceived in these proceedings particularly in view of the undertaking given before the DRAT, Chennai, in M.A.No.98 of 2003, by the first respondent undertaking to discharge the loan himself which he had in fact discharged. The undisputed facts that emerge are that, a term loan of Rs.600 lakhs was sanctioned, secured in the equitable mortgage of the immovable property of the respondents. The respondents availed the said loan jointly and agreed to repay with interest at PLR of the Bank + 2% with quarterly rests in 72 monthly installments commencing from February, 2000. The respondents, however, defaulted on monthly schedule within a short period from June 2000 itself. The Bank was constrained to seek its legal remedy by approaching the DRT, Hyderabad, and later the DRAT, Chennai, for recovery. The first respondent repaid the amount after the final order was passed by the DRT, Hyderabad, on 27.08.2003. The O.A. was filed on 20.06.2002 and disposed of on 27.08.2003. Therefore, the disputed period during which the interest was sought is from 20.06.2002 to 27.08.2003. In the circumstances, the only point that arises for consideration is – whether the petitioner-Bank is entitled for interest pendente lite as per the agreement @ PLR + 2% with quarterly rests or whether the lump sum interest granted by the DRAT, Chennai, is just and proper? Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (the Act) provides that where a Bank or Financial Institution has to recover any debt from any person, it may make an application to the Debts Recovery Tribunal, which is vested with the powers enumerated in the said provision. Sub-section (20) of Section 19 of the Act provides that the Tribunal may, after giving the applicant and defendant an opportunity of being heard, pass such interim or final order, including the order for payment of interest from the date on or before on which payment of the amount is found due, up to the date of realization or actual payment, on the application as it thinks fit, to meet the ends of justice. By virtue of the said provision, the Tribunal is vested with the power to order payment of interest not only for the pre-decree and post-decree periods but also for the period of the pendency of the application. The power so exercisable is indisputably discretionary. However, such power is exercisable in an appropriate manner to meet the ends of justice depending on the facts and circumstances of each case. Sri C. Kodanda Ram, the learned Senior Counsel laid stress on the language in sub-section (20) of Section 19 of the Act and would contend that it is perfectly within the jurisdiction of the Tribunal to order payment of interest or at certain rate of interest or totally deny the grant of interest. Reliance has been placed on the judgment of the Apex Court in Central Bank of India v. Ravindra and ors. (supra) and in United Bank of India v. Rashyan Udyog and ors. (supra), I n Central Bank of India case, (supra) the Apex Court while considering the provisions of Section 34 CPC on the interpretation and the meaning to be assigned to the phrases “Principal sum adjudged” and “such principal sum” occurring in the said Section, held in paragraph No.41 as under: “41. A few points are clear from a bare reading of the provision. While decreeing a suit if the decree be for payment of money, the Court would adjudge the principal sum on the date of the suit. The Court may also be called upon to adjudge interest due and payable by the defendant to the plaintiff for the pre-suit period which interest would, on the findings arrived at and noted by us hereinabove, obviously be other than such interest as has already stood capitalised and having shed its character as interest, has acquired the colour of the principal and having stood amalgamated in the principal sum would be adjudged so. The principal sum adjudged would be the sum actually loaned plus the amount of interest on periodical rests which according to the contract between the parties or the established banking practice has stood capitalised. Interest pendente lite and future interest (i.e. interest post-decree not exceeding 6 per cent per annum) shall be awarded on such principal sum i.e. the principal sum adjudged on the date of the suit. It is well settled that the use of the word 'may' in Section 34 confers a discretion on the Court to award or not to award interest or to award interest at such rate as it deems fit. Such interest, so far as future interest is concerned may commence from the date of the decree and may be made to stop running either with payment or with.” There cannot be any controversy on the said principle laid down by the Apex Court in the aforesaid judgment as regards the discretionary power of the Court to grant interest pendente lite. The Apex Court also observed in paragraph Nos.37 and 38 as under: “37. Black's Law Dictionary (7th Edition) defines 'interest' inter alia as the compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use; especially, the amount owned to a lender in return for the use of the borrowed money. According to Stroud's Judicial Dictionary of Words and Phrases (5th edition) interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of his money. In Secretary, Irrigation Department, Government of Orissa v. G. C. Roy, (1992) 1 SCC 508, the Constitution Bench opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages.......... this is the principles of Section 34, Civil Procedure Code. In Dr. Shamlal Narula v. C.I.T., Punjab, (1964) 7 SCR 668, this Court held that interest is paid for the deprivation of the use of the money. The essence of interest in the opinion of Lord Wright, in Riches v. Westminster Bank, Ltd., (1947) 1 All ER 469, 472, is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation; the money due to creditor was not paid, or, in other words, was withheld from him by the debtor after the time when payment should have been made, in breach of his legal rights, and interest was a compensation whether the compensation was liquidated under an agreement or statute. A Division Bench of the High Court of Punjab speaking through Tek Chand, J. in C.I.T. Punjab v. Dr. Sham Lal Narula, AIR 1963 Punjab 411 thus articulated the concept of interest (AIR p.44, para 8) “the words "interest" and "compensation" are sometimes used interchangeably and on other occasions they have distinct connotation. "Interest" in general terms in the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, "interest" is understood to mean the amount which one has contracted to pay for use of borrowed money. . . . . . . . . . . . . . . . . . .In whatever category "interest" in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable." It is the appeal against this decision of Punjab High Court which was dismissed by Supreme Court in D. Shamlal Narula's case. 38. However 'penal interest' has to be distinguished from 'interest'. Penal interest is an extraordinary liability incurred by a debtor on account of his being a wrong-doer by having committed the wrong of not making the payment when it should have been made, in favour of the person wronged and it is neither related with nor limited to the damages suffered. Thus, while liability to pay interest is founded on the doctrine of compensation, penal interest is a penalty founded on the doctrine of penal action. Penal interest can be charged only once for one period of default and therefore cannot be permitted to be capitalised.” After referring to Mulla on the Code of Civil Procedure (1995 Edition) and also the judgment in Irrigation Department, Government of Orissa v. G.C. Roy[4] wherein it was held that the interest pendente lite is not a matter of substantive law, the Court observed that “interest from the date of suit to the date of decree is in the discretion of the Court. Interest from the date of the decree to the date of payment or any other earlier date appointed by the Court is again in the discretion of the Court – to award or not to award as also the rate at which to award. In the ultimate analysis, the Apex Court in paragraph No.55, Clause-8 observed as under: “Award of interest pendente lite and post-decree is discretionary with the Court as it is essentially governed by Section 34 of the CPC dehors the contract between the parties. In a given case if the Court finds that in the principal sum adjudged on the date of the suit the component of interest is disproportionate with the component of the principal sum actually advanced the Court may exercise its discretion in awarding interest pendente lite and post-decree interest at a lower rate or may even decline awarding such interest. The discretion shall be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner.” (emphasis is ours). In United Bank of India case a learned Judge of the Calcutta High Court observed in paragraph No.5 as under: “Pendent lite as well as post-decree interests are in the nature of compensation or damages which the Court may award to the plaintiff for being kept out of the money due to him. Whether one looks to the general provisions of Section 34 of the Code of Civil Procedure, or to those of Rule 11 of Order 34 specially applicable to mortgage-suits, the relevant provisions are patently governed and controlled by the expression “may” and therefore it can be concluded from these provisions that award of such interest is not obligatory, but only discretionary and the Court may or may not award such interest. “ From a conjoint reading of the observations as noted above, and the provisions of Section 19(20) of the Act, it is manifest that the Tribunal is vested with the power to grant interest pendente lite , but such power should be exercised fairly, judiciously and for reasons and not in any arbitrary or fanciful manner. In the instant case, the DRT, Hyderabad, declined to grant interest on the assumption that the petitioner-Bank would be making a profit of Rs.2,13,88,360/- within a span of 34 months, working out to a return of compounding interest @ 10.56% p.a., on the premise that the principal amount and interest payable by the respondents would be Rs.8,12,31,489.60 ps., of which Rs.2,22,19,458/- had already been paid at various points of time before filing of O.A. and that the first respondent was willing to pay Rs.5,94,47,566.64 ps., and on the further premise that the first respondent was always willing to pay his dues even before filing of the O.A and also before the Tribunal. The said reasons assigned by the Tribunal for waiving the interest are misplaced. As noted above, the first respondent refused to acknowledge his liability as joint along with respondent No.2 but kept pleading that he was liable only to half of the loan amount. Banks being financial institutions thrive on regular monetary transactions. It hardly needs any emphasis that the financial institutions would generally programme their business on the basis of the advances and receipts from the borrowers. They can ill-afford to face financial crunch for any given period. The defaulter is always under an obligation to discharge his liability either voluntarily or through process of law and such discharge of liability is hardly a solace or gratis to the financial institutions. The reason assigned by the DRT, Hyderabad in waiving the interest pendente lite does not, therefore, commend acceptance by this Court. The appellate tribunal also appears not to have been satisfied with the reasons assigned and passed the order in the following terms. “In view of the peculiar circumstances of the case, that the 1st respondent has paid the entire O.A. claim amount in one lump sum immediately after the order was passed by the PO, by following the principles laid down in the recent decisions of the Apex Court by exercising discretionary power, I hereby direct the 1st respondent to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) for the interest pendente lite and on payment of this pendente lite interest amount of Rs.10 lakhs the PO, DRT, Hyderabad is directed to release all the title deeds immediately, to the 1st respondent. The bank is directed to record full satisfaction in the O.A.” Apparently, the DRAT, Chennai, did not agree with the reasons assigned by the DRT, Hyderabad in waiving the interest. While so holding, the Appellate Tribunal, Chennai, too failed to assign any reasons for granting the said lump sum interest only nor it assigned any reasons for rejecting the claim of the Bank to pay the interest at the agreed rate. In Central Bank of India’s case (supra) the Apex Court has specifically observed that the discretion should be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner. The Appellate Tribunal is a quasi judicial authority established under Section 8 of the Act for the purposes of discharging its functions under the Act. The Appellate Tribunal has the same powers as are vested in a civil Court under the Code of the Civil Procedure in