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1986 DIGILAW 131 (KAR)

ASHOKA BASKAR CHITTAR v. SHIMOGA HOUSING CO-OPERATIVE SOCIETY

1986-03-07

CHANDRAKANTARAJ URS

body1986
CHANDRAKANTARAJ URS, J. ( 1 ) THE short question which falls for determination in this petition is. whether the Award of the arbitrator passed under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act') and confirmed by the Karnataka Appellate Tribunal, bangalore, by its order dated 21-12-1984 in Appeal No. 316/83 is liable to be set-aside or that portion of the order which awards interest in excess of 6% on account of the prohibition contained in Sub-section (1) of Section 34 C. P. C. limiting the rate of interest to 6% and not more. ( 2 ) BRIEFLY, the facts are as under : The Writ Petitioner was a borrower from the first Respondent, Shimoga Housing Co-operative society. He borrowed the money for the construction of a house. He borrowed the amount in two instalments; Rs 15,000/-and Rs. 4,000/ -. He agreed to pay interest at a specified rate and also penal interest in case of default in repayment of the loan instalments. He did not pay any sum. Hence, a dispute was raised by the Society in Dispute No. 3407/82-83 before the Honorary arbitrator appointed by the Registrar under Section 70 of the Act. The claim was decreed as prayed for by the Arbitrator. The prayer included not only repayment of the loan but also interest agreed as well as penal interest. It is in that context that the appeal was filed stating that the award of interest is contrary to law as held by this Court. The. Tribunal has not accepted that contention. Therefore the present Writ Petition. ( 3 ) BEFORE me, Sri Rudragowda, learned Counsel for the petitioner contended that the Tribunal erred in reducing the award with reference to interest to the contractual rate only as it ought to have reduced the interest from the date of reference to date of realisation only to 6% and less having regard to the mandate of Section 34 C. P. C. He has placed reliance upon a decision of this court in the case of R. B. Somappa v. Mysore Co-operative Appellate Tribunal, 1972 (2) Mys. L. J. 430. L. J. 430. ( 4 ) UNDOUBTEDLY, in the said decision rendered by a Division Bench of this Court, it has been held after discussing some authoritative pronouncements of the Supreme Court on the subject, that an arbitrator can call into aid the principles of Section 34 C. P. C. for awarding interest when one of the disputes referred to him for adjudication relates to liability of any party to pay interest. It would be some-what futile to explain the decision further. The decision does no more than reiterate what has been stated by the Supreme Court in a number of decisions. ( 5 ) I would only make some useful reference to the earliest decision of the Supreme Court on the subject. In the case of Thawardas Pherumal v. Union of India, AIR1955 sc 468 , [1955 ]2 SCR48 , Bose, J, as he then was, held that an Arbitrator is not a "court" within the meaning of the Code. Hence, an arbitrator cannot award interest after suit on the analogy of section 34 C. P. C. which does not apply. Nor does the Code apply to the Arbitrators, and, but for section 34, even a Court would not have the power to give interest after the suit. ( 6 ) UNDOUBTEDLY, the above ruling of the Supreme Court has been somewhat watered-down by the subsequent decisions. It would suffice if I refer to a decision of the Full Bench of the Punjab and haryana High Court in the case of State of Punjab v. Ajit Singh, AIR1979 Pandh 179. That was a case where the arbitrator had awarded interest pendentelite which was challenged before a learned Single Judge of that Count. The learned Single Judge quashed the awarding of interest on the ground that the Arbitrator had no power to do it. The division Bench which heard the appeal found conflicting views of that Court only. Therefore, the matter was referred to a Full Bench. In those circumstances, the then learned Chief Justice of punjab and Haryana High Court in his Judgment has held as follows :" 13. The division Bench which heard the appeal found conflicting views of that Court only. Therefore, the matter was referred to a Full Bench. In those circumstances, the then learned Chief Justice of punjab and Haryana High Court in his Judgment has held as follows :" 13. Now, there seems to be no manner of doubt that in the light of the aforesaid unequivocal enunciation of law if not the provisions, in any case the principle underlying Section 34 of the code of Civil Procedure is at once and equally attracted in the case of proceedings before an arbitrator. Once this is so, it is plain that one has only to turn to the provisions of that section to seek an answer of the question whether the arbitrator was entitled to award future interest or not. Provisions of Section 34 as amended now are plain and unequivocal. Section 34 (1) of the Code of Civil Procedure is in the following terms : "34. INTEREST -- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit". "14. It would thus be manifest from the bare language of the aforesaid provisions as also by the application of the principles lying thereunder that an arbitrator is expressly warranted and authorised to grant future interest on the amount awarded up to the date of its realisation. " ( 7 ) FROM the above, it is clear that having regard to the decisions of the Supreme Court which have been referred to in some detail, the conclusion was reached having regard to the decisions of the Supreme Court in Union of India v. Bungo Steel Furniture Private Limited, AIR1967 SC 1032 , 1967 (0 )BLJR393 , [1967 ]1 SCR324 ; that there was no enabling power in the Arbitrator to award interest pendentelite. He certainly can award interest if it is one of the matters in issue in the dispute which is raised before him and which he is required to resolve only on the analogy of the principle underlying Section 34 C. P. C. ( 8 ) THAT, Section 34 C. P. C. itself is not applicable to the proceedings before the Tribunal is not in doubt. Therefore, what is the principle underlying Section 34 C. P. G ? ( 9 ) AS observed by Bose, J. under the Code of Civil Procedure itself Court was incompetent to award interest but for Section 34. The principle underlying Section 34 C. P. C. is, the power to award interest during the pendency of the litigation in the Court and not the rate of interest mentioned therein as contended by Sri Rudragowda. ( 10 ) RATE of interest has to be always contractual rate and in the absence of it, at a rate any other law which provides for payment of interest. Therefore, the Tribunal has correctly reduced the rate of interest to the contractual rate and as such the order does not call for interference. ( 11 ) THE Petition is misconceived and it is dismissed.