1. State Bank of India, which is plaintiff in O.S.No.25 of 2000 on the file of the III Additional District Judge, Tirupati, has filed this appeal to the extent of disallowed claim by the trial Court under judgment dated 22.03.2002.

2. State Bank of India (for short ‘the Bank’) filed the aforesaid suit based on mortgage against the respondent (hereinafter referred to as ‘Borrower’), relating to housing loan of Rs.5.5 lakhs granted to the borrower. Claiming that the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with interest at 13.77% per annum with quarterly rests from the date of suit (23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple interest at 12% per annum from the date of suit. Thus, aggrieved by the disallowed suit claim as well as granting simple interest at 12% per annum as against the contractual rate claimed in the suit, this appeal is preferred by the bank.

3. I have heard Mr. M. Narender Reddy, learned counsel for the bank and Mr. T.V.L. Narasimha Rao, learned counsel for the borrower. Both the learned counsel have elaborately made submissions with reference to their respective claim on the basis of documents, which primarily comprise of statement of accounts, exhibited in the suit. The bank as well as the borrower have produced additional documents requesting to receive them as additional evidence, reference to which would made at an appropriate place.

4. Before going into the merits of the claim of the bank in the appeal, it is necessary to deal with a preliminary objection of maintainability of the appeal raised by the borrower.

PRELIMINARY OBJECTION:

5. Mr. T.V.L. Narasimha Rao, learned counsel for the borrower, contended that the present appeal is filed against the preliminary decree granted by the trial Court on 22.03.2002 in the mortgage suit aforesaid. Based on the said preliminary decree the bank has filed an application for grant of final decree in I.A.No.1478 of 2002 on 07.10.2002 requesting the trial Court to pass a final decree in terms of the said preliminary decree on the ground that the redemption was not availed by the borrower. The said final decree application was allowed by the trial Court by passing a final decree dated 07.08.2003. Learned counsel, therefore, states that, in the meanwhile, the bank had filed the present appeal on 24.06.2002 questioning the preliminary decree and that the filing of the final decree application and passing of the final decree was never disclosed while filing the present appeal. Learned counsel also submits that though this appeal was filed on 24.06.2002, it was retuned with certain office objections on 06.08.2002 but was not represented within time and the application seeking condonation of delay of 1196 days in representing the appeal in CMP.No.22784 of 2003 was ordered only on 07.01.2004 and it is only thereafter the appeal was numbered and admitted on 28.06.2004 and only thereafter notice in this appeal was served on the borrower.

6. Learned counsel for the borrower, therefore, submits that having accepted the preliminary decree, which is impugned herein and having sought a final decree to be passed in pursuance thereafter and having secured a final decree as early as on 07.08.2003, the bank is estopped from pursuing this appeal against the preliminary decree, as it cannot be allowed to blow hot and cold. Learned counsel, further, submits that the filing and prosecution of this appeal by the bank is also not bonafide, as they never disclosed filing of this appeal in the application filed by them for final decree. Thus, in view of passing of the final decree, the preliminary decree merges in the later decree and on that ground also the present appeal is not maintainable.

7. Mr. M. Narender Reddy, learned counsel for the bank, submits that there is no impediment for maintainability of the present appeal inasmuch as this