A. K. MATHUR, J. - (1.) BOTH these cases are connected with each other therefore, they are disposed of by this order.
(2.) S. B. Civil Regular First Appeal No. 69 of 1986 Rajendra Kumar vs. Keshari Chand has been filed against the judgment and decree passed by the learned District Judge, Pali dated 19. 3. 1986. The brief facts, giving rise to this first appeal are that a suit was filed by Rajendra Kumar plaintiff against Keshari Chand defendant for recovery of a sum of Rs. 75,000/- on the basis of a pro-note alleging inter alia that a sum of Rs. 55,000/- were given to the defendant by the plaintiff as loan at the rate of 24 % p. a. interest and the amount was not paid upto this date, therefore, the present suit was filed for the recovery of the aforesaid amount with interest. The learned trial court after hearing both the parties decreed the suit of the plaintiff to the tune of Rs. 95,000/- as principal sum and Rs. 20,000/- as interest at the rate of 24% p. a. i. e. Rs. 75,000/ -. It was further ordered that the plaintiff will be entitled to interest on the principal sum i. e. Rs. 55,000/- at the rate of 6% p. a. pendente lite But no interest was awarded till realisation of the amount. Hence, the present appeal has been filed, by the plaintiff. Mr. Jain, learned counsel for the appellant submitted that by virtue of Section 79 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), the plaintiff is entitled to interest at the contractual rate of interest till realisation of the amount. Learned counsel submitted that the learned District Judge has not awarded interest till the decree at the contractual rate of interest and he has also not awarded any future interest whatsoever. Mr Singhvi, learned counsel for the respondent submitted that awarding of interest is the discretion of the court and the learned District Judge his awarded the interest in exercise of his discretion. Therefore, this Court should not interfere with the discretionary order of the learned District Judge. The question before me is that as to what is the effect of Section 79 of the Act vis-a-vis Section 34 C. P. C. Section 79 of the Act reads as under: - "79. Interest when rate specified.- When interest at a specified rate is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the Court directs. "
(3.) A bare reading of the provisions of Section 79 of the Act clearly shows that the interest shall be paid by the party on the basis of the rate specified in the promissory note or bill of exchange or the instrument on the principal sum from the date of the instrument till tender or realization of such amount. But a discretion has been given to the court also and it has been clearly mentioned that until such date after the institution of a suit to recover such amount as the Court directs. That means that after the institution of the suit it is the discretion with the court that it can award a lesser rate of interest then the contractual rate. As a matter of fact, Section 79 of the Act has to be divided into two parts. The first part says that the court can award interest at the contractutal rate of the interest. That means it is the duty of the court to award interest at the contractual rate. But a discretion has been conferred on the court that if the court wants to exercise the discretion then it can award lesser rate of interest from the date of institution of the suit till the recovery of the amount as the court directs. The expression "or until such date after the institution of a suit to recover such amount as the Court directs" empowers the court to award a lesser rate of interest from the date of institution of the suit. But prior to the institution of the suit there is no discretion with the court and the court is bound to award interest at the contractual rate of interest. But the moment the suit is instituted in the court then the discretion has been reserved with the court that if situation so warrants it can award a lesser rate of interest. So far as the first part is concerned i. e. before the filing or institution of the suit, the court has no discretion to award a lesser rate of interest, but subsequent to the filing of the suit the court acquires the jurisdiction if the situation so warrants it can award a lesser rate of interest. The discretion is with the court and it can exercise it. Therefore, in my opinion the discretion exercised by the learned District Judge of awarding pendente lite interest at the rate of 6% p. a. falls in the second part of Section 79 of the Act. However, the learned District Judge has not awarded any future interest i. e. interest till the date of realization. That appears to be an apparent omission. Therefore, I allow the appeal in part and direct that the plaintiff-appellant shall be entitled to get interest at the rate of 6% p. a. from the date of judgment till the date of realization. Now, coming to the revision petition filed by the defendant, this revision was directed against the order passed by the learned District Judge dated 19. 3. 1986. In this revision, the grievance of the petitioner-defendant was that he was not permitted to file the defence. Since the main suit has been disposed of and the same has been decreed and the respondent-defendant has not challenged that decree, therefore, this order dated 19. 3. 1986 stood merged in the final decree and the final decree has not been challenged. The present revision petition has become infructuous and the same is dismissed. . ;