Judgment · High Court

Judgment

This appeal is filed challenging the judgment and decree, dated 03.08.2005, passed by the learned Additional Senior Civil Judge, Nandyal, (Fast Track Court), whereunder the suit-O.S.No.83 of 1998 filed by the respondent herein had been decreed directing the appellant herein to pay Rs.4,73,430/- with interest at 24% per annum on Rs.3 lakhs from the date of filing of the suit i.e., from 01.12.1998 till the time granted for redemption and thereafter, at 6% per annum till the date of realization.

The main submission of Sri C.V.Rajeev Reddy, learned counsel for the appellant, is that the said suit was posted for arguments on 03.08.2005 and the lower Court pronounced the judgment on the same day without giving an opportunity to the appellant. His next submission is that the appellant is an agriculturist and in support of his claim the appellant filed Ex.B-1-True Copy of No.3 Adangal extract and also examined D.Ws,.2 and 3 whose evidence categorically shows that the appellant is an agriculturist, but the lower Court failed to properly appreciate the evidence. Sri S.Nageswara Reddy, learned counsel for respondent, submits that as on the date of execution of mortgage deed, the appellant was working as Head Master and that the appellant himself admitted in the cross- examination that he retired in the month of December, 1996, and in view of the same, the appellant is not entitled to any benefit under Section 13 of the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938 (for short ‘the Act’). It is also his submission that this Court may scale down the rate of interest since under Section 34 of the Code of Civil Procedure in respect of nationalized Banks and taking analogy the same benefit can be extended to the appellant. In reply, learned counsel for the appellant submits that the lower Court had failed to appreciate the evidence of D.Ws.2 and 3 and that of D.W-1, who categorically deposed that the main source of income of the appellant is agriculture. The only point that arises for consideration is whether the rate of interest awarded by the lower Court can be scaled down in the facts and circumstances of the case? No doubt, the lower Court has not discussed the evidence of D.Ws.2 and 3 and also the evidence of D.W-1. But, I am of the view that it is not desirable to remand the for de nova matter consideration. lower Court at this stage that he lower Court reveals It is not in dispute that, now, the appellant had retired from service and his age is shown as 67 years in the cause title of the appeal. The evidence of the appellant who is examined as D.W-1 before possession of Ac.1.94 cents of land in Survey No.216/1 and Ac.2-66 cents of land in Survey No.217 of Moolasagaram Village, H/o Nandyal, and in support of his contention he filed Ex.B-1-True copy of No.3 Adangal extract. His evidence further reveals that he filed O.S.No.131 of 2003 on the file of the learned Principal Junior Civil Judge’s Court, Nandyal, against his brothers for partition of the joint family properties and the same is pending; that all the landed properties had been bequeathed by his father to his mother, and that his mother did not execute any document in his favour giving share in the said landed properties. It is true that the appellant examined D.Ws.2 and 3, who have categorically deposed that the main source of income of the appellant is their cross- agriculture. Nothing has been elicited examination to disbelieve the same. However, a reading of the evidence of D.W-1 makes it clear that the appellant retired from service in December 1996, which means that as on the date of execution of mortgage deed he was in service. It also reveals that besides agricultural properties, he is also having a house with three portions and previously, he used to get rent from the said portions. Therefore, it cannot be said that the main source of income of the appellant is agriculture and if the evidence on record is critically examined, it becomes clear that the appellant is not entitled to the benefit under Section 13-A of the Act. However, having regard to the age of the appellant and the fact that he has retired from service in December, 1996, and presently, his main source of income appears to be agriculture, I consider it just and reasonable to reduce the rate of interest from 24% per annum to 12% per annum. Accordingly, the impugned judgment and decree of the lower Court is amended and a preliminary decree is passed, directing the appellant to pay Rs.4,73,430/- with interest at the rate of 12% per annum on Rs.3 lakhs from the date of the plaint till the time granted for redemption and thereafter at 6% per annum interest as awarded by lower Court. If the appellant fails to pay the entire decretal amount within a period of three months from today, then the rate of interest shall be calculated at 14% per annum on Rs.3 lakhs from the date of the plaint till the time granted for redemption. Accordingly, the Appeal Suit is disposed of. There shall be no order as to costs. _________________________ JUSTICE B.CHANDRA KUMAR 25th June 2012 Note: Issue CC in one week. B/o DR