MADAN, J. - (1.) HEARD learned counsel for the parties, with the consent of the parties, the matter is being finally disposed of at the admission stage itself.
(2.) THE case of the plaintiff respondent is that respondent filed a suit under Order 37 Rule 1 CPC on 2. 6. 2000 for realisation of the amount stating that defendant being known to plaintiff's husband therefore, approached the plaintiff on 17. 1. 98 and asked for loan for his business and pursuant thereto plaintiff gave a sum of Rs. 51,840/- to the defendant. It is also stated in the plaint that the said amount was to be returned within one month alongwith interest @ 24% per annum. An agreement to this effect was also executed by defendant on stamp paper of Rs. 10/ -. It is further pleaded that defendant also handed over a post dated cheque for Rs. 51,840/- and promised that he would make the payment of the aforesaid loan amount with interest @ 24% but he filed to repay the said amount therefore, on 13. 5. 2000 plaintiff served a notice through her counsel for the said amount but that notice was returned with the remarks that defendant is not available. Since defendant had not paid the principal amount therefore, plaintiff has prayed for a decree of principal sum of Rs. 51,840/- alongwith interest @ 24% p. a. i. e. Rs. 29,554/- totalling to Rs. 81,394/ -. The defendant appellant had also filed a written statement denying the averments made in the plaint and submitted that defendant has only taken a sum of Rs. 48,000/- as a loan for domestic and business purpose from the husband of plaintiff and plaintiff's husband has assured that the said amount will be financed at the interest of 8% p. a. but since the defendant was in dire need of money therefore, they compelled defendant to write incorrect figure of Rs. 51,840/- instead of actual payment of Rs. 48,000/- in the said agreement therefore, the said agreement is executed under undue influence hence it is vitiated contract. In fact, plaintiff charged interest @ 96% per month which is against the public policy. It was further pleaded in the written statement that there was no such condition in the agreement to pay the interest @ 24% p. a. and apart from all above when defendant raised protest then on Diwali 1998 Sitaramji told the defendant that if defendant is ready to execute pronote for Rs. 48,000/- then he would return the post dated said cheque as well as the said agreement. In furtherance thereof defendant executed pronote for Rs. 48,000/- but Sitaramji did not return the said cheque as well as the said agreement hence, it is clear that Sitaram just wanted to harass the defendant. It is also mentioned that with the spirit of Lok Adalat defendant is ready to repay the actual loan amount of Rs. 48,000/- in 20 installments if interest is charged @ 6% per annum. Further, the defendant has also taken a defence that the plaintiff is a money lender and she is not having any licence under the Money Lending Act therefore, present suit for recovery on the basis of alleged agreement is not maintainable and accordingly prayed for dismissal of suit. The learned trial Court on the basis of the pleadings of the parties framed as many as eight issues and thereafter plaintiff in order to substantiate his case examined P. W. 1 Shanti Devi on 24. 3. 2001, P. W. 2 Kistoor Chand on 22. 5. 2001, P. W. 3 Sitaram on 9. 1. 2002 and exhibited the documents as Ex. 1 to Ex. 4 and closed his evidence. Thereafter, the defendant appellant in order to substantiate his defence examined D. W. 1 Arjun Singh on 7. 8. 2001, D. W. 2 Niranjan Singh on 8. 10. 2001, D. W. 3 Kailash Kumawat on 4. 12. 2001 and D. W. 4 Hemant Singh on 4. 12. 2001. The trial Court vide the impugned judgment decreed the plaintiff's suit, while directing the payment of Rs. 51,840/- with interest @ 18% p. a. from the date decree till realisation. During the course of hearing, learned counsel for the appellant has very frankly conceded that the appellant in all bonafides wants to pay the decretal amount if the repayment of the principal amount is fixed in easy monthly installments but he prayed that he is not in a position to pay the entire amount in lump sum as the rate of interest as awarded by the trial Court is very high and contrary to the prevalent rates. In support of his contention, he placed reliance upon the judgment of the apex Court in the matter of 2001 (2) SCC 9, which was a case under the MACT Act on the principle of no fault liability.
(3.) THE learned counsel for the respondent has contended that the order should be made binding to ensure the compliance of the decree. In view of the concession made on behalf of the appellant as to his bonafides to pay the decretal amount but with lesser interest rate, and applying the principle of law laid down by the Apex Court in aforesaid decision as regards interest rate, it is accordingly directed that the payment of the decreetal amount including interest thereunder with modified rate herein below shall be made in 5 equal installments payable starting first installment on 2. 5. 02 and thereafter, on 2nd day of every succeeding month. The payment shall be made to be respondent against the receipt. The respondent is directed to furnish the receipt in favour of the appellant as soon the payment is made by the appellant to the respondent. The liability as regards the payment of interest @ 18% as directed by the trial Court is modified and the same shall be payable @ 12% p. a. as ordered under the impugned decree from the date of institution of the suit till realisation. The property of the appellant shall stand released from attachment, but, meanwhile the appellant is directed not be alienate, sale or create third party interest regarding his property under attachment of the decree. The trial Court is directed to calculate the interest at the modified rate under the impugned decree and work out five equal installments in the presence of both the parties and with the help of their learned counsel. The parties are directed to remain present alongwith their learned counsel on 19. 4. 2002. In the result, this appeal is partly allowed only to the extent of modification of the rate of interest and mode of payment in installments in execution of the impugned decree which stands modified as ordered hereinabove. In case of failure of the appellant to comply with the aforesaid direction in making payment of instalment, the trial Court will be free to again attach the appellant's property in execution of the decree. No order as to costs. . ;