THE RATE OF INTEREST AWARDED BY THE TRIAL COURT WAS EXCESSIVE AND CONTRARY TO THE PROVISIONS OF SECTION 34 CPC.

1. - This first appeal under Section 96 CPC is directed against judgment and decree dated 30.07.1996 passed by District Judge, Dungarpur, whereby, the suit filed by the respondent - Mangi Lal for recovery of a sum of Rs. 1,37,616/- has been decreed along with interest @ 2% per month from the date of filing suit till payment.

2. The facts in brief may be noticed thus : plaintiff - Mangi Lal filed a suit, inter alia, with the averments that on 16.09.1991 defendants Heera and Chhabi Lal executed a promissory note and receipt jointly having received a sum of Rs. 80,000/- and agreed to pay interest @ 2% per month and, as the amount remained unpaid, after adding a sum of Rs. 57,600/- the present suit for recovery of a sum of Rs. 1,37,616/- has been filed.

3. Written statements were filed by the defendants, inter alia, admitting that though pronote and receipt were executed on 16.09.1991 but no amount was paid; it was claimed that Panna Lal brother of Heera defendant No. 2 was to go to Kuwait for service and, therefore, a sum of Rs. 36,000/- as loan was taken on 11.12.1989 and documents were executed for a sum of Rs. 40,000/-; as Iraq attacked Kuwait resulting in difficult situation in the Gulf, Panna Lal had to return prematurely from Kuwait and under pressure, for the return of sum advanced as loan, on 16.09.1991 the promissory note was executed for Rs. 80,000/-.

4. The trial court framed two issues; as the execution of the promissory note dated 16.09.1991 was admitted , the issue was framed in respect of the defence raised and burden was placed on the defendants; both the defendants were examined and plaintiff along with one Yashwant Kumar were also examined.

5. After evidence was led by the parties, by the impugned judgment the trial court came to the conclusion that the theory regarding advancing a sum of Rs. 36,000/- in the year 1989 was not proved and, consequently, decreed the suit as aforesaid.

6. It is submitted by learned counsel for the appellants that the trial court fell in error in not believing version of the defendants; merely because reply to the notice was not given by the defendants, the same by itself cannot lead to any inference; the plea raised by the defendants stands proved on record; it was further submitted that the rate of interest @ 2% per month i.e. 24% per annum was too excessive and burdensome and could not have been granted by the trial court; it was prayed that the decree passed by the trial court deserves to be quashed and set aside.

7. Learned counsel for the respondent duly supported the judgment passed by the trial court; it was submitted that once the execution of the promissory note has been proved and the defendants have failed to prove the defence regarding promissory note being without consideration, the passing of the decree is a natural consequence and, therefore, the trial court was justified in decreeing the suit; it was further pointed out that in the written statement of defendant No. 1 - Chhabi Lal, it has been indicated that they (defendants) asked the plaintiff to settle the issue by taking the principal amount along with interest @ 1% per month, however, the same was not accepted and the suit has been filed for harassing the defendants and, therefore, the plea regarding lack of consideration and rate of interest being excessive falls to the grounds.

8. I have considered the rival submissions made by learned counsel for the parties.

9. From a bare perusal of the pleadings of the parties it is apparent that the defendants have accepted their signatures on the promissory note and receipt produced as Exhibits-1 and 2; the only defence raised was that in fact a sum of Rs. 36,000/- was advanced on 11.12.1989, regarding which, documents were executed and on 16.01.1991, the documents Exhibits-1 and 2 were got executed under pressure for recovery of the amount paid in the year 1989 and, therefore, the promissory note was without consideration.

10. From the evidence led by the parties, it is