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1985 DIGILAW 423 (MAD)

Ratnavelsamy v. The Bank of Thanjavur Ltd. , Through Its Asst, General Manager, S. Chockalingam

1985-10-17

K.M.NATARAJAN

body1985
ORDER K.M. Natarajan, J. 1. The first defendant in the respective suits are the petitioners in these revision petitions. C.R.P. 2 759 of 1984 arises out of judgment and decree in O.S. 117 of 1982 on the file of the District Munsif Court of Manamadurai, while C.R.P. 2760 of 1984 to 2762 of 1984 arise out of the decrees in O.S. 385 of 1982, O.S. 118 of 1982, and O.S. 272 of 1982, on the file of the said Court. The respondent is the Bank of Thanjavur Ltd. The respondent herein filed the above suits for recovery of money from the petitioners-defendants in the respective suits due on a promissory note executed by each of the defendants in favour of the respondent - plaintiff with interest at 15-per cent per annum. So far as the suits O.S. 1/7 of 1982 and 385 of 1982 are concerned, the first defendant in the said suits submitted to a decree by filing a memo and the second defendant therein was set ex-parte. In respect of the other two suits, viz., O.S. 118. of 1982 and 2 72 of 1982, the defendants were set ex-parte and ex-parte decrees were passed. In all the four cases, the Court while drafting the decree, has awarded future interest from the date of decree also at the rate of 15 per cent till realisation. Aggrieved by the same, the petitioner - defendants filed applications under Sections 151 and 152, C.P.C., praying for amendment of the decrees to the effect that the interest payable after the decree is only 6 per cent per annum, i.e., from the date of decree till realisation, on the ground that the loan was obtained in connection with the purchase of motor and pump set for agricultural purposes and that there is no commercial transaction between the respondent - Bank and the petitioners and by virtue of Section 34, C.P.C., only 6 per cent interest on the principal amount has to be awarded and in the instant case, the award of interest at the contract rate of 15 per cent is illegal and is contrary to the provisions of Section 34, C.P.C. Hence, the decrees have to be amended suitably. 2. 2. The said applications were resisted by the respondent on the ground that since the petitioners have consented to a decree in two suits and the petitioners in the other two suits were set ex-parte, it is not open to them to challenge the decree by filing these applications and as such, the petitions are liable to be dismissed. 3. The Court below upheld the contention of the respondent and dismissed the applications. Aggrieved by the same, these revisions have been filed by the defendants in the above suits. 4. The learned, Counsel for the petitioners in all these revisions took me through the provisions of Section 34, C.P.C., and submitted that from the date of decree till the date of payment, interest has to be levied only at such rate not exceeding six per cent on the principal sum and only in a case where the liability in relation to the sum had arisen out of commercial transaction the rate of such interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest where moneys are lent or advanced by nationalised banks. He also drew my attention to Explanation II to Section 34(1), C.P.C., wherein it is provided that a transaction is a commercial transaction if it is connected with the industry, trade or business of the party incurring the liability. The Learned Counsel for the petitioners contended that in the instant cases, even according to the plaint allegations, the petitioners are agriculturists and they have incurred the debt for the purpose of purchase of motor and pump set for agricultural purposes and as such, the award of interest at 15 per cent is illegal. It is further contended that the mere fact that an ex-parte decree was passed or that the petitioners consented to a decree, would not mean that the petitioners are estopped from contending that the future interest levied contrary to the provisions of Section 34, C.P. Code is improper, and illegal. 5. It is further contended that the mere fact that an ex-parte decree was passed or that the petitioners consented to a decree, would not mean that the petitioners are estopped from contending that the future interest levied contrary to the provisions of Section 34, C.P. Code is improper, and illegal. 5. The Learned Counsel for the petitioners invited my attention to the decision of the Supreme Court in Union of India v. Bungo Steel Furniture Pvt. Ltd. In that case it was held that: Though, in terms, Section 34, C.P. Code does not apply to arbitration proceedings, the principle of that section can be applied by the arbitrator for awarding interest in cases where a court of law could grant a decree for interest under the section. 6. My attention was also drawn to the decision of the Supreme Court in Amarchand