1 SA 217.2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 217 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.B.Ghatol Patil, Advocate for the appellant. Mr. S.R. Deshpande, Advocate for the respondent. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 15/12/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The present respondent had filed Suit for recovery against the present appellant. The trial Court decreed the Suit. The appellant preferred Appeal. The appellate Court dismissed the Appeal. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mr. Ghatol Patil, learned counsel for the appellant strenuously contended that in fact in the year 1994 as per the statement of accounts of the Bank, an amount of Rs. 1,20,549.80 was 2 SA 217.2010 outstanding and the present appellant had forwarded one time settlement proposal, pursuant to that paid Rs. 75,000/- towards full and final settlement. In spite of the same, thereafter in the year 1998, the present respondent Bank filed Suit for recovery of amount of Rs. 99,883/-. The learned counsel submits that in fact by selling his property, the appellant has paid the said amount. Even the witness of the respondent – bank has admitted that if the major amount is paid, the bank enters into one time settlement and the account is cleared of. But, in the present case, the respondent – Bank has acted in high handed manner. 4. Mr. S.R. Deshpande, learned counsel for the respondent – Bank submits that there was no agreement between the parties regarding one time settlement. The amount paid by the appellant was towards the outstanding dues and the same has been given credit in the account. Even this was not the case of the present appellant before the Courts below in the pleadings. The learned counsel further submitted that unless there is one time settlement between the parties, the appellant can not get any benefit regarding the exemption of the amount of loan. 5. With the assistance of the learned counsel, I have gone through the Judgment. 6. It is the fact that the present appellant has deposited amount of Rs. 75,000/- in the year 1994. 3 SA 217.2010 This shows that the appellant is not chronic defaulter. At the same time, for the appellant to get the benefit of one time settlement scheme, there has to be concluded contract between the bank and the appellant. In the present case, no such contract is in existence nor any details of the same are put-forth. In that light of the matter, the said arguments of MR. Ghatol Patil, learned counsel for the appellant can not be considered. 7. The findings are arrived at on the basis of the accounts maintained. In the present Second Appeal, the legality of the same can not be gone into. 8. It has been brought to my notice by Mr. Ghatol Patil , learned counsel that even future rate of interest awarded is exorbitant. Mr. S.R. Deshpande, learned counsel states that to award the contractual rate is the rule and there are no special circumstances to exercise the jurisdiction to award less rate of interest. 9. It has come on record that the appellant after selling his land has deposited the amount and shown his bonafide. The loan is agricultural loan and not the commercial loan. In such circumstances, discretion under Section 34 of the Code of Civil Procedure can be exercised for the bonafide litigant. I hereby modify clause (ii) of the impugned Judgment and decree and direct that the defendant shall jointly and severally pay the 4 SA 217.2010 decreetal amount of Rs. 99,883/- to the plaintiff along with future interest @ 6 % per annum from the date of filing of the Suit till realization. Except clause (ii) of the operative order of the impugned Judgment. Rest of the Judgment is confirmed. The present Second Appeal as such is partly allowed. [ S.V. GANGAPURWALA ] JUDGE knp/SA 217.2010