ORDER
M. Jagannadha Rao, C.J.
1. This appeal is preferred by the appellant Canara Bank against the judgment and decree passed by the learned trial Judge on 12th January, 1994 in the Suit No. 3025/90. The limited point urged before us is with regard to the refusal of the learned trial Judge to award pendente lite interest from the date of the plaint till the date of the decree. The learned Judge no doubt granted interest at 16.5% from the date of the decree i.e. 12th January, 1994 till the date of payment. This refusal to grant the interest from October, 1990 till 12th January, 1994 is the subject matter of this appeal.
2. The judgment of the learned trial Judge shows that the decree was passed under Order 20, Rule 11 CPC and while refusing to grant interest pendente lite the learned Trial Judge stated that he was bearing in mind Section 34 CPC as well as Order 20, Rule 11 of the Code of Civil Procedure. He clearly held that the interests of the justice would be met if simple interest on the suit amount was awarded at the rate of 16.5% from the date of the decree and not from the date of institution of the suit. This is clear from the following passage in the judgment :
“In view of the statement of the defendant I am of the opinion that the suit is liable to be decreed. However, the rate of interest on the suit amount at the rate of 20% per annum appears to be very excess inasmuch as the defendants themselves have offered to suffer a decree and to pay the decretal amount in instalments. In my opinion and in view of Section 34 read with Order 20, Rule 11 of the Code of Civil Procedure, the ends of justice would be met if the rate of simple interest on the suit amount is awarded at the rate of 16.5% from today and not from the date of institution of the suit.”
3. We have mentioned the above facts only to highlight that this is not a case of failure or omission on the part of the learned Trial Judge to grant interest from the date of plaint till date of the decree. It is a clear case where the learned trial Judge has exercised discretion not to grant interest for the said period during the pendency of the suit. He relied on the fact that the defendant/respondent agreed to suffer a decree and also took into consideration that he was awarding interest at 16.5% from date of the decree. In the last paragraph the learned Single Judge no doubt stated that in case the defendants make the payment of the suit amount along with simple interest, at the rate of 7% effective from the date of the decree till realisation, in monthly instalments of Rs. 1,00,000/- each payable on or before 7th day of each month, the aforesaid decree will stand fully satisfied. However, if there be any three defaults in making the monthly instalments of Rs. 1,00,000/-, the plaintiff will be entitled to execute for the balance amount of the decree with interest at the rate of 16.5% effective from the date of the decree.
4. The above said judgment will, therefore, clearly reveal that the learned Single Judge applied his mind to the question as to whether the interest should be granted pendente lite or not? He was bearing in mind not only Order 20, Rule 11 of the Code of Civil Procedure but also Section 34.
5. The appellant Bank granted two bank-guarantees, one for Rs. 6,74,325 and the other for Rs. 29,69,357/- against the mortgage of the property standing in the name of Smt. Sneh Lata Sood, the respondent No. 3 and against the mortgage of the property standing in the name of M/s. Nakul Enterprises, respondent No.1. The plaint does not dispose that any promissory note was executed. The bank guarantees were invoked on 13th June, 1987 and as admitted before us, they were encashed by the defendants and Rs. 15,94,414/- was realised. The bank then gave notices for recovery of the amount from 1988 on various dates claiming different rates of interest in each notice. The suit was filed in October, 1990 claiming the amount of Rs. 36,08,019.30 and interest at the rate of 20% per annum from the date of the suit till the realisation of the mortgage property. The suit was pending for about 3 years and 3 months and thereafter the defendants agreed to suffer a decree under Order 20, Rule 11 CPC and it was in those circum- stance that the learned Single Judge granted interest from the date of the decree when the present decree was passed on 12th January, 1994.
6. An important event took place during trial of the suit. On 7th Janu- ary, 1994 one of the defendants was examined as a witness. He was not cross-examined on the question of interest prior to suit or pendente lite. The matter was later adjourned to the next date and the evidence for the defendant was closed. No witness whatsoever was examined for the appellant bank. The suit was not based on any negotiable instrument. The plaintiff did not examine any witness after the evidence of the defendant was closed.
7. Therefore, it must be taken that there is no evidence on the side of the plaintiff as to what is the contractual rate of interest for the period prior to the suit or for the period during the pendency of the suit.
8. The learned counsel for the respondent raised a contention that the plaintiff had initially encashed Rs. 15,94,414/- lacs in August, 1987 from the defendants and later the defendants agreed to suffer a decree as passed by the Trial Judge from 1st October, 1994. The plaintiff’s bank was satisfied and did not even adduce any evidence nor did it raise any contention before the learned Single Judge that interest on the contractual rate should be granted for the period during which the suit was pending. It is also pointed out by the respondents that today the position is that the full decretal amount has been paid. Counsel for the respondent says that the plaintiff’s bank waited till it received the entire decretal amount as decreed and did not raise any objection that the receipt of the decretal amount was without prejudice to their right to press for pendente lite interest in the appeal. Of course the appeal was filed in time but now the position is that the decretal amount as directed in the decree dated 12th January, 1994 has been fully paid. This is also a factor which we are bearing in mind to say that this is not a fit case for interference in appeal.
9. A point was raised by the respondent-defendant during the arguments before us that the “interest column” in the guarantee-form was left blank. But later the learned counsel for the appellant bank produced another set of photo copies of the guarantee form showing that the interest column was not blank but showed a rate of 8% . The learned counsel for the appellant therefore contended that we should not go by the statement of the respondent’s counsel that the interest column in the guarantee form was left bank. He stated that we should proceed to decide the appeal on the basis that the interest column in the guarantee from was not blank but contained an agreement for payment of the interest. We may state that we will go by the photo copies produced by the bank’s counsel but even so, we are not inclined to interfere with the discretion exercised by the learned single Judge for the reasons given below.
10. The point for determination in the appeal as already stated is whether the learned Trial Judge was wrong in exercising discretion not to grant interest pendente lite to the appellant?
11. As already stated and as is clear from the extract of the judgment of the learned trial Judge, he did not merely omit to grant interest from the date of institution of the suit till realisation of the amount, he consciously refused to grant pendente lite interest. He referred to the fact that the defendant was suffering a decree under Order 20, Rule 11 CPC and to an interest at the rate of 16.5K% per annum from the date of the decree till the date of the payment. The learned Single Judge also referred to Section 34 while also adverting to Order 20, Rule 11 CPC. Therefore it is clear that the learned Single Judge exercised his discretion to the facts of the case relying upon various relevant facts.
12. As to the question whether the discretion was exercised by the trial Judge properly or not, it is well-settled that normally the Appellate Court does not interfere with the exercise of the discretion in the matter of award of pendente lite interest unless no discretion was exercised or was exercised perversely. As pointed out by the Supreme Court in State of Madhya Pradesh Vs. Natha bhai Desai bhai the question where interest should be granted on the principal amount from the date of the suit is within the discretion of the Court. The same view was expresses by the Supreme Court in Indian Insurance and Banking Corporation Ltd. Vs. Mani Paravathu and in Amar Chand Butail Vs. Union of India . Therefore it is obvious that the discretion in regard to award of pendente lite interest cannot be lightly interfered with. One has also to bear in mind the fact that the plaintiff did not adduce any evi- dence at all much less with regard to interest and nobody came into the witness box even. The offer made by the defendant under Order 20, Rule 11 was accepted by the plaintiff and now the entire money was received after decree. We are of the view that in such a situation the discretion exer- cised by the trial court should not be interfered in this appeal. Obviously the plaintiff was more interested in receiving the full amount as decreed and that is why, it did not examine any witness and took care to collect the entire amount as decreed.
13. A point was urged before us by the appellant that Order 20, Rule 11 CPC does not apply to mortgage suits. It is true that several High Courts have taken such a view. But this point has not been taken in the trial court or in the grounds of appeal. The appellant bank did not raise any objection that Order 20, Rule 11 was not applicable and mortgage decree must be passed under Order 34 CPC. On the other hand the bank wanted to take advantage of the fact that the defendant agreed to suffer a decree under Order 20, Rule 11 CPC and wanted to pay the amount in instalments. in fact as on today, the entire decretal amount as per the decree has been received by the bank. At this stage we cannot, therefore, permit the bank to raise a question that the decree passed under Order 20, Rule 11 in bad. In fact, if such a contention is now to be accepted it would have to result in the setting aside of the decree as passed under Order 20, Rule 11 by the learned Single Judge and it may even lead to the refund of the amount by the bank to the respondent. We, therefore, decline to permit this point to be raised for the first time in the appeal at the time of the arguments.
14. Even otherwise we may here notice that the Gujarat High Court has taken a view that Order 20, Rule 11 would apply instead of Section 34 of the Code of Civil Procedure vide a . It is true that there are rulings which would show that in the case of a mortgage decree the provisions of Order 34 have to be applied and not Section 34 CPC Soli Pestonji Vs. D. Gangadhar Khemka . But we have already stated that the respondent has agreed to suffer a decree and the appellant accepted the offer of the defendant under Order 20, Rule 11 CPC before the Trial Judge and now it cannot say that Order 20, Rule 11 is not applicable to mortgage suits.
15. We may also point out that Order 20, Rule 11 contains a non-obstante clause.
16. For all the aforesaid reasons, this appeal is dismissed.