1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T S.B.CIVIL FIRST APPEAL NO.9/1989 State Bank of India Vs. Mor Singh & Ors. S.B.Civil First Appeal under Section 96 of the Civil Procedure Code against the judgment and decree dated 26.11.1988 passed by Addl. District and Sessions Judge No.3, Kota in Civil Suit No.191/1988 to the extent of disallowing half costs of the suit to the plaintiff-appellant. **** DATE OF JUDGMENT: AUGUST 11, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr.Anil Sharma on behalf of Mr.S.K.Gupta. for the appellant None present for the respondent BY THE COURT: 1. This S.B. Civil Regular First Appeal under Section 96 C.P.C. has been filed against the judgment and decree dated 26.11.1988 passed by the learned Addl. District & Sessions Judge No.3, Kota in Civil Suit No.191/1988 titled State Bank of India vs. Mor Singh & Ors. to the extent disallowing the half cost of the suit of the plaintiff-appellant. 2 2. The brief facts giving rise to disposal of this appeal are that a civil suit for recovery of money amounting to Rs.1,83,453.35 was filed by the plaintiff-appellant (State Bank of India) against the defendants in the Court of District Judge, Kota. Subsequently after transfer, it came for trial before the Addl. District & Sessions Judge No.3, Kota. The defendant-respondent No.1 is borrower whereas the defendant respondent No.2 is the guarantor. It was inter alia stated that for purchase of truck for transport business, loan was sanctioned and since the defendant did not pay it's installment, which was of Rs.4000/- per month and total installments were 48. The first installment was due on 5th February, 1981. The defendant-respondent executed necessary documents and after making payment of some installments inspite of request made, they did not deposit the amount borrowed. In the above circumstances, a prayer was made to decree the suit for a sum of Rs.1,83,453.35 along with interest and cost of the suit. The defendant respondent filed written statement. It was admitted by the respondent that he received loan but the dispute was raised about the rate of interest. According to the defendant, it was 5½%. The learned trial court framed four issues including relief. Issue no.1 was to the effect that the Bank authorities taking advantage of his being illeterate got signatures of the defendant on the vacant forms. Issue 3 no.2 was to the effect that as to whether the rate of interest was 5½% per annum. Issue no.3 was in relation to special cost and Issue no.4 was in relation to relief. The learned trial court recorded evidence of plaintiff. On behalf of plaintiff-Bank Krishan Lal P.W.1 was examined and thereafter closed its evidence. No body was produced in evidence on behalf of respondent. The learned trial court after hearing final submissions of both sides found on the basis of statement of P.W.1 and on the basis of Ex.2, Ex.3, Ex.4 & Ex.5 that defendant received loan of Rs.1,92,000/- for the purchase of truck in the year 1980 and truck was hypotheticated and deed thereof Ex.2 was executed which was admitted by the defendant. In relation to rate of interest conditions were to the effect that minimum interest will be chargeable at the rate of 11.85% per annum. Ex.3 & Ex.4 are the balance confirmations, which were admitted by the defendant. Ex.5 is the statement of accounts. On the basis of evidence Issues no.1 & 2 were decided together in favour of the plaintiff-appellant Bank and against the defendant-respondent. Issue no.3 was decided against the defendant on the basis of findings recorded on issue no.1 & 2. Finally the court decreed the suit for a sum of Rs.1,83,453.35 along with interest from the date of filing of the suit till it is recovered at the rate of interest 12% per annum. The court in the facts and circumstances of the case 4 allowed half of the cost and also looking to the condition of the defendant in relation to the decretal amount ordered that the same be paid in monthly installments at the rate of 4500/- per month. It was also ordered that first installment was to be paid on 1st February, 1989 and in case the defendant fails to make payment of three consecutive monthly installments then the appellant Bank will be entitled to recover the entire amount in accordance with law. The judgment and decree was passed on 26.11.1988. The appellant being felt aggrieved has preferred this regular first appeal. 3. I have heard the learned counsel for the appellant and perused the material available on record. 4. No body has put in appearance on behalf of respondents despite service. 5. The contention of the learned counsel is that half of the cost was allowed, therefore, their grievance is to the extent of cost only. 6. I have considered the above submission. It appears that the suit filed in its totality has been decreed. 5 As regards special cost/cost is concerned that is the discretion of the court, but at the same time discretion should be exercised in a judicious manner. 7. In the instant case, in view of the facts and circumstances and taking into consideration the provisions of Section 35 C.P.C., I do not find that the court had not properly exercised its jurisdiction. A perusal of the rate of interest while awarding decree in itself is sufficient to show that the court has awarded adequate interest. Looking to the present time interest and the cost, which has been allowed in this case, it cannot be said that the court committed any illegality in disallowing half of the cost to the plaintiff Bank. There does not appear a legal point which may require consideration in this regular first appeal. The appeal being devoid of merit is liable to be dismissed. In the result, the appeal accordingly stands dismissed. (S.P.PATHAK) J. BKS/-