Case: K. Manickchand &amp; Ors Vs. Elias Saleh Mohamed Salt &amp; Ors

original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.5. In this connection, learned Counsel for the respondents urged that the arrears of interest envisaged by Section 17 of the Act should be held to include interest due up to the date of the decree by the High Court because that is the effective decree granting interest to the mortgagees; but this argument overlooks the principle of law that the decree of an appellate Court takes effect from the date of the decree of the original Court. In this case, therefore, even though the High Court passed the appellate decree at a later date, that decree has to be deemed to have come into effect from 27th March, 1952 which was the date of the decree of the trial Court, so that no question can arise of holding that the arrears of interest under Section 17 of the Act must be computed up to the date on which the High Court passed the decree.6. The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of the Code of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, the Code of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]3. So far as the first point raised by learned Counsel is concerned, it appears to us that it is totally misconceived, because the language of Section 17 of the Act plainly justifies the view taken by the High Court. Section 17 in prescribing the maximum amount of arrears of interest to be allowed, refers to "the principal of the original loan" and not "the principal of the loan". If the latter expression had been used, it could have been argued in the present case that the sums of Rs. 20,000/- and Rs. 24,000/-, which purported to be the principal amounts of the two loans evidenced by the two mortgage-deeds in suit, were the principal amounts of the loans to be taken into account in working out the maximum amount of interest permissible under Section 17 of the Act.The expression "the principal of the original loan" makes it clear that, in determining the maximum amount of arrears of interest allowable, the Court must go behind the transaction of the loan and find out what was the actual cash originally advanced as principal and ignore all interest that may have been added subsequently to that original advanced in order to make up the consideration for the loans in suit.In the present case, therefore the High Court was justified in looking at the transaction prior to the two mortgage-deeds to find out what were the actual cash amounts originally advanced which, together with interest and after adjustment of accounts formed the principal amounts for the two mortgage-deeds. It was admitted by Counsel for both parties before us that the figures accepted by the High Court as the principal amounts of the two loans are correct, if the original cash advances are treated as the principal amounts of the original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of theCode of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, theCode of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods.