- (1.) On the application of the State Bank of India, the appellants, these two second appeals were dismissed as withdrawn by order dated 25-5-2001. Applications have been filed by the appellant bank in both the appeals to recall the aforesaid order dismissing the appeals as withdrawn and these applications are being disposed of by the present order.
(2.) The facts giving rise to the present applications may be briefly stated. The State Bank of India hereafter referred to as the 'Bank' had filed a suit No. 25 of 1977 against the firm M/s. Jamuna Prasad Munni Lal, a proprietorship concern of which Jamuna Prasad Jaiswal was the sole proprietor. The suit was decreed for re-covery of Rs. 3,82,827.70 P with interest @ 18% per annum from the date of the suit till the date of payment. The defendant filed appeal, which was registered as Civil Appeal 8 of 1999 in the Court of District Judge, Deoria.
(3.) During the pendency of the aforesaid litigation Jamuna Prasad Jaiswal died leaving behind three sons who according to the bank's case were partners of a new firm Jamuna Prasad Jaiswal and Sons. According to the bank's case these partners sold certain assets of the proprietorship concerned M/s. Jamuna Prasad Munni Lal Jaiswal hypothecated to the bank and as such the amount of Rs. one lac payable to the new firm by the purchasers under a bank draft which represented the sale proceeds of the hypothecated assets was withheld by the State Bank of India, Deoria. The new firm Jamuna Prasad Jaiswal and Sons then filed original suit No. 49 of 1980 for recovery of Rs. one lac principal and Rs. 45,000.00 interest against the bank alleging that the payment was wrongfully withheld. The trial Court decreed the suit for recovery of the principal sum of Rs. one lac but dismissed the claim for interest. The bank challenged the decree of recovery of Rs. one lac against it by appeal registered as appeal No. 42 of 1998. The new firm the first respondent in this appeal filed appeal No. 56 of 1998 against the refusal of interest. By judgment and decree dated 5-2-1999 the lower appellate Court dismissed the bank's appeal but allowed the appeal of the new firm and decreed the suit for recovery of Rs. 1,43,500.00 for the principal and interest. The operative portion of the judgment provides that simple interest @ 12% per annum with pendentelite and future interest would be payable and the bank was directed to make the payment within one month, failing which, the new firm the plaintiff would thereafter be entitled to compound interest at the rate charged by the bank on its loans. The aforesaid two second appeals have been preferred by the Bank against the decree of the lower appellate Court.;