JUDGMENT
R.L. Anand, J.
1. Central Bank of India, Pehowa (hereinafter referred to as ‘the Bank’) has filed the present R.S.A. and it has been directed against the judgment and decree dated 19.9.1995 passed by the Court of District Judge, Kurukshetra, who affirmed the judgment and decree dated 29.10.1994 passed by the. Court of Sub Judge Ist Class, Pehowa.
2. Brief facts of the case are that the Bank filed a money suit for a sum of Rs. 2,17,912/- against the defendants under Order 34, C.P.C., with a prayer that the suit amount along with future interest be realised by the sale of the mortgaged/hypothecated properties with the Bank.
3. The defendants were summoned. Shri B.R. Chawla, Advocate at Pehowa, was representing the defendants and on 29.10.1994 he made a statement before the trial Court to the effect:-
“Stated that the suit of the plaintiff be decreed. Simple interest be granted only on the principal amount.”
No statement of the counsel for the plaintiff-Bank was recorded. The trial Court on the statement of the learned counsel for the defendants passed the following order:-
“Parties have compromised. Statement of learned counsel for defendant has been recorded. In view of his statement, the suit of plaintiff-Bank for recovery of Rs. 2,17,912/- is decreed with costs and future interest at the rate of 17.5% per annum on principal amount of Rs. 72,000/- from the date of filing of this suit till actual realisation of decretal amount. The defendants are directed to make the payment of decretal amount within six months, failing which the plaintiff-Bank shall be entitled to recover the decretal amount by filing execution as per law. Decree sheet be prepared accordingly. File be consigned to record room.
Sd/-
Sub Judge Ist Class,
Pehowa.
Announced: 29.10.94.
4. The Bank was not satisfied with the judgment and decree passed by the trial Court, perhaps for two reasons – firstly, the trial Court was not justified in granting interest on the principal advanced amount of Rs. 72,000/- and secondly, the trial Court did not order that the decretal amount be realised by the sale of mortgaged/hypothecated property.
5. The Bank filed the first appeal in the Court of District Judge, Kurukshetra, who vide the judgment and decree dated 19.9.1995 dismissed the appeal of the Bank mainly on the ground that the judgment and decree of the trial Court was passed on consent and by virtue of the provisions of Section 96(3), C.P.C., the appeal was not maintainable. The Bank is again aggrieved by the judgment and decree of the first appellate Court and has come in the regular second appeal, which is being disposed of at the motion stage.
6. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case.
7. I am of the considered view that for the reasons set forth in the later portion of the judgments, i.e., the judgment of the trial Court as well as of the first appellant Court, the appeal cannot stand in the eyes of law. At the cost of repetition it may be stated that the suit of the Bank was for the realisation of the suit amount along with future interest by the sale of mortgaged/hypothecated properties. Whether any consent was given by the plaintiff or not before the trial Court, it has to be ascertained whether the trial Court recorded any statement of the plaintiffs counsel. It has been admitted at the bar by the counsel for the parties that on 29.10.1994 Shri B.R. Chawla, Advocate gave the statement to the effect that the suit of the plaintiff be decreed and simple interest on the principal amount be granted. The trial Court ought to have recorded the statement of the counsel for the plaintiff whether this offer given by the defendant was acceptable to him or not. In the absence of such statement, it cannot be said that the judgment and decree dated 29.10.1994 was passed on consent. Otherwise also, the judgment and decree of the trial Court was not in conformity with the prayer made by the plaintiff in the plaint because the suit was filed under Order 34 C.P.C., and the Bank had prayed for the realisation of the amount by way of sale of mortgaged/hypothecated properties. The statement dated 29.10.1994 made by Shri Chawla impliedly admits the claim of the plaintiff-Bank and for that reason he stated before the trial Court that the suit of the plaintiff be decreed. In these circumstances the trial Court could not give a money decree alone. By this time it has become a settled law that the Bank is entitled to realise the interest on the contractual rate and the amount of interest debited to the borrower also becomes the principal amount.
8. The decree of the first appellate Court also cannot be sustained in the eyes of law as it has not been rightly appreciated that the judgment and decree of the trial Court was not a consent decree. The counsel appearing on behalf of the Bank never agreed to the offer made by Shri Chawla on 29.10.1994. The first appellate Court ought to have also taken into consideration that the suit of the plaintiff was under Order 34 C.P.C., and it was not a simple money suit.
9. Before me the learned counsel appearing on behalf of the defendants-respondents submitted that he had no objection if the impugned judgments and decrees of the trial Court as well as the first appellate Court are set aside and a fresh trial be conducted by the trial Court. Learned Counsel for the defendants also submitted that in the eventuality of remand it may be held that the defendants would not be bound by the statement dated 29.10.1994.
10. Be that as it may, the decision which emerges put from the above is that it will be erroneous to say that the judgment and decree of the trial Court dated 29.10.1994 was passed on consent and, therefore, the judgment of the first appellate Court is also liable to be quashed when it dismissed the appeal of the Bank on the ground that it was not maintainable by virtue of the provisions of Section 96(3) of the Code of Civil Procedure.
11. Resultantly, the present appeal is allowed. The impugned judgments and decrees of the trial Court as well as of the first appellate Court are hereby set aside and the case is remanded to the trial Court, i.e. the Court of Sub Judge Ist Class, Pehowa/Civil Judge (Junior Division), Pehowa, to try the suit a fresh from the stage when it was left over on 29.10.1994 according to the provisions of law. It may also be observed that the statement given by the defendant on 29.10.1994 through his counsel Shri Chawla, would not be binding upon him and he would have the right to contest the suit of the plaintiff-Bank on merits. The parties through their counsel are directed to appear before the Sub Judge Ist Class/Civil Judge (Junior Division), Pehowa on 30.8.1996. There shall be no order as to costs in this appeal.
12. Before I part with this judgment, I would like to give clear directions to the Subordinate Courts of Punjab and Haryana as well as of Chandigarh U.T., that while recording the statements of the counsel for the parties, due care must be taken in the eventuality of some offer given by some party and if that offer has been accepted by the opposite party, the statements of both the parties should be recorded on the record and such statements should be signed by the parties and their counsel, so that no ambiguity may be left over for the future. I direct the Registry to issue the necessary instructions to all the Judicial Officers of the Courts below after obtaining orders of the Hon’ble Chief Justice.