THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.1110 OF 2001 ORAL JUDGMENT The defendant in O.S.No.510 of 1994 on the file of the Court of I Additional Senior Civil Judge, Visakhapatnam is the appellant herein. The suit was filed by the plaintiff for recovery of fee due to her for defending the defendant/Union of India in O.S.373 of 1983 and also interest thereon. The claim of the plaintiff is that she was the Government Pleader for the District Courts at Visakhapatnam and she was engaged by the defendant in O.S.No.373 of 1983 to defend the Union of India (UOI) and in that suit a decree was passed on 30-01-1988 and as per the decree she was entitled for a sum of Rs.94,361/- towards the pleader’s fee and she made several representations and finally a notice on 23-08-1993 was given under Section 80 CPC. Consequently, suit was filed for a sum of Rs.94,361/- being the advocate fee, Rs.700/- being legal expenses and Rs.74,544-60 paise towards interest @ 12% p.a. from 30-01-1988 till the date of filing of the suit and for subsequent interest. The defendant/appellant contended that the services of the plaintiff are engaged in the suit and other suits and for the notice issued by the plaintiff a reply was given stating that the amount will be paid but however the suit was filed without waiting. The plaintiff was paid a sum of Rs.3,40,545/- by virtue of cheques towards fee in O.S.Nos.372, 373 and 374 of 1983 and the suit is barred by time. Neither the Advocate Fee Rules nor the Contract stipulates payment of interest on the Advocate fee and therefore the defendant is not liable to pay the interest. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the plaintiff is entitled to recovery the suit amount as prayed for? 2. Whether the plaintiff is entitled to claim interest as there is no contract to that effect? 3. Whether the suit is barred by limitation? 4. To what relief? On behalf of the plaintiff PW.1 is examined and marked Exs.A-1 to A-13. On behalf of the defendant no oral or documentary evidence was adduced. After considering the evidence on record, the lower court after giving credit to the amounts already received, passed the decree for the interest and further interest thereon till the date of payment. Aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the plaintiff is entitled to the suit amount? 2. Whether the plaintiff is entitled for the interest claimed? 3. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- Sofar as the fact that the plaintiff was engaged as an Advocate on behalf of the appellant and she defended the suit O.S.No.373 of 1983 is not in dispute. It is also not in dispute that the plaintiff has received a cheque on 19-05-1995 for Rs.3,40,545/- and issued the Ex.A-13 reply and she claims to have adjusted a sum of Rs.91,600/- towards the present suit. Therefore, as can be seen from the evidence of PW.1, the plaintiff has received the amount and Ex.A-10 clearly goes to show the cheque was issued for a sum of Rs.95,061/- towards the suit O.S.No.373 of 1983. Therefore, by 25-05-1995 the fee as entitled by the plaintiff was received. But, however, the question is as to whether the plaintiff will be entitled to the interest on the fee due to her. Evidently, touching on this aspect, the learned Senior Civil Judge did not give any finding as to the right of the plaintiff to receive the interest. By applying the principles of equity and also taking in aid of Section 34 CPC the court decided the case. Section 34 CPC applies only after the decree is passed. When there is no contract to pay the interest the party will be entitled to interest only from the date when the claim for interest was made. Evidently, the Advocate Fee Rules do not support the claim for interest on the delayed payments. The suit notice was given only in 1993 and there was correspondence between the plaintiff and the defendant with regard to settlement of the fee. There is nothing on record to show that the defendant has intentionally withheld the payment of the fee to the plaintiff. The interest was claimed in the suit at 12% from 30-01-1988 till 30-07-1994. Even if the principles of Section 34 CPC are to be applied, subsequent interest in any decree for refund of money will be @ 6%. As can be seen from the judgment of the lower court by applying the principles of Order XXI, Rule 2 CPC, the payment was appropriated to the principal amount and found that still a sum of Rs.73,844/- is due and granted further interest over the said amount. This is also not proper. As can be seen from the record, there is nothing to show that the defendant has intentionally withheld the money and there was also no denial of the claim of the plaintiff at any point of time and for the first time it was mentioned in Ex.A-2 that the plaintiff may be claiming the interest but the demand was not made for payment of the interest at any point of time. Therefore, in view of the above circumstances, claiming of the interest @ 12% is not warranted and this court is also not inclined to grant any interest as there are no mala fides on the part of the defendant for the delay in payment of money due to the plaintiff. It was only in Ex.A-7 notice dated 23-08-1993 which is the suit notice, the claim was made for interest @ 12% from the date of decree in O.S.No.373 of 1983 till the date of the subject suit. In the above legal notice claim was made for interest from 1988 till the date of filing of the suit which was claimed in the suit and granted by the lower court. Therefore, the claim of the plaintiff and the decree granted by the lower court are erroneous. Therefore, even if the provisions of Interest Act are to be applied, it is only the date of demand that has to be taken into consideration and the plaintiff if at all is to be equitably given the interest, she will be entitled for interest from 23-08-1993 which is the date of legal notice. Therefore, for the above reason the decree of the lower court is modified and the plaintiff is granted interest @ 6% only from 23-08-1993 till the date of payment on 29-06-1995 i.e., when the principal amount was already paid. For the balance of the amount the plaintiff will not be entitled for any other reliefs. The question of granting subsequent interest does not arise as it will be granting interest over the interest when the amount was already received by the plaintiff. Therefore, the judgment of the lower court is liable to be modified and the suit of the plaintiff is to be decreed for a sum of Rs.95,061/- with interest at 6% from the date of legal notice i.e., 23-08-1993 till 25-05-1995 when the amounts were paid less the amount of Rs.95,061/- already received by the plaintiff after filing of the suit. The plaintiff will be entitled to the proportionate costs. The points are accordingly answered. In the result, the Appeal Suit is allowed in part. The judgment of the lower court is modified and the suit of the plaintiff is decreed for a sum of Rs.95,061/- with interest at 6% from the date of legal notice i.e., 23-08- 1993 till 25-05-1995 when the amounts were paid less the amount of Rs.95,061/- already received by the plaintiff after filing of the suit. The plaintiff will be entitled to the proportionate costs. _______________________ N.R.L.NAGESWARA RAO,J 10-06-2011 TSNR