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TMI Blog1989 (4) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... apter II, Verses 36042) that "if destruction of foetus and exaction of interest were weighed in balance, the destroyer of foetus would go upon the scale and Usurer would fall down", and commenting on this, Dr. P. N. Sen in his Tagore Law Lecturers on Hindu Jurisprudence (1918, page 300) said that this figuratively expresses the Sage's opinion that extortion of interest which sucks the life-blood, so to say, of living men is even more reprehensible than the destruction of foetus which has not yet seen light of the day". But notwithstanding such strong denouncement, Vasista could not declare it to be illegal but. branded the Usurer as a "sinner who is lost to. all virtuous acts". Narada also prohibited such practice for the Brahmins and Khatriyas, but conceded it for the Vaisyas, the commercial while characterising such acquisition as "partly black (impure)". "The world", said Swami Vivekananda, "is in the third epoch under the domination of the Vaishyas (the merchant, the third estate)" and would continue to be so until the advent of "the fourth epoch" which "will be under the domination of the Shudras (the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court has a discretion to exercise all or any or none of the specified powers". If in respect of a provision like S. 8 of the Bihar Money-Lenders Act, whereunder reliefs were awardable to the debtors, the Federal Court ruled that because of the word 'may', the Court had the discretion to_award or not to award all or any of the reliefs, we do not find any reasons as to why the same conclusion would not follow in respect of S. 34 or O. 34, R. 11 of the Code of Civil Procedure, whereunder it is provided that the Court 'may' award interest, and why, according to the ratio of the Federal Court decision in Jaigobind Singh (supra), this should not mean that the Court may not award interest at all. 7. It is true that there are a number of Division Bench decisions of this Court in Nilmoni Sardar v. Baidyanath Das, , in West Bengal Financial Corpn. v. Bertram Scott, , in United Bank of India v. New Glencoe Tea Co., , in State Bank of India v. B. Gupta, and in Life Insurance Corporation of India v. Kumar Purnendu Nath, , holding that the expression "may" in S. 34 as well as O. 34, R. 11 of the Civil P.C. does not vest the Court with any discretion at all to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the view that the award of pendente lite or post-decree interest is merely discretionary and never obligatory is also, to say the least, a reasonable view, even if not the only view that would bind us. And that would be good enough for our present purpose. 10. We have recently pointed out in State Bank of India v. Amal Kumar Sen, (1988) 1 Cal LJ 83 : (1988 Lab IC 1585) and then also in Sudhangshu Mohan Chakraborty v. Life Insurance Corporation of India, (1988) 92 Cal WN 1092, that a forensic combat between the Creditor and the Debtor under the adversary system of trial prevailing in our Courts is very often an unequal combat, notwithstanding all our constitutional pledge to secure Social Justice and our constitutional mandate to ensure Equality. We have pointed out further that Judiciary is also "State" within the meaning of Art. 12 and Art. 36 of the Consti-tution and has all the obligation to promote-"Equal Justice" (Art. 39A) and to "strive to minimise inequalities in income and to endeavour to eliminate inequalities in status facilities and opportunities" and to protect "as effectively as it may a Social Order in which Justice, Social a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omparative insignificance in view of our fundamental obligation under our Fundamental Law to which all our other laws and rules of procedure and practice must give precedence. We have also noted that in a recent judgment of the Supreme Court in Pomal v. Vrajlal, , a two-Judge Bench of the Supreme Court, speaking through Sabya-sachi Mukharji, J., (at p. 444) has, in a mortgage suit, held that "the law must transform itself to the social awareness" about the poor and "poverty should not be unduly permitted to curtail one's right to borrow money on the ground of justice, equity and good conscience on just terms" and it must see that there "is no taking advantage of the oppressed or depressed people." 13. Be that as it may, here in this case, the trial Court, while decreeing the suits of the creditor, has not awarded any pendente lite or post-decree interest. It had the discretion to award or not to award and has exercised the same in favour of the debtor. The generally accepted principle is, as pointed out by the Privy Council in Rehamatunnissa Begum v. Prince AIR 1917 PC 116 at P. 118 that "it is opposed to sound practice for an appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of India". The appellant Bank has not controverted any of these statements either by any counter-affidavit or otherwise during argument before us and nothing, therefore, should prevent us from taking note of these averments. We do not know whether these facts were brought to the notice of the trial Judge. But we have no doubt that if those were before him and the learned Judge declined interest after adverting to these facts, the order could not be assailed on the ground that the discretion was not judicially exercised or there was no application of mind by the trial Judge in the exercise of his discretion. These facts now brought before us can .very well sustain a discretionary order declining award of pendente lite or post-decree interest. And in our view, now that these facts are before us, it would be an idle formality to send the matter back to the trial Court only to have these matters brought on record before the trial Court and to direct it to decide the question of interest with formal articulation. u/s. 107 of the Civil P.C., we, sitting in First Appeal, can exercise all the powers which the trial Court could and since we are in agreement with the trial Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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