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1988 DIGILAW 381 (KAR)

SHIMOGA HOUSING CO-OP. SOCIETY LTD v. STATE OF KARNATAKA

1988-08-18

H.G.BALAKRISHNA

body1988
BALAKRISHNA, J. ( 1 ) IN this writ petition, the petitioner which is a Co-operative Society, has questioned the judgment of the Karnataka appellate Tribunal, Bangalore (respondent-1 in Appeal No. 509/1984, dated 30-6-1986 vide Annexure-C granting future interest at the rate of 6% p. a. instead of 11% p. a. ( 2 ) VIDE Annexure-B, the arbitrator of Co-operative Society, Shimoga ordered and decreed that respondents 3 and 4 should pay to the petitioner-society a total sum of Rs. 18,930/- together with costs and further to pay interest at 11% on Rs. 4050-69 paise from 31-8-1983 till the date of realisation. ( 3 ) IN appeal, respondent-1 by the impugned judgment, modified the award in respect of interest granted by the arbitrator. While allowing the appeal respondent-1 awarded interest at 11% from 31-8-1983 to 28 5-1984 that is, the date of award and further awarded future interest from the date of award till the date of realisation of the amount at 6% p. a. on the principal amount of Rs. 4050 69 paise. It is this award of future interest at 6% p a. that is challenged in this writ petition. ( 4 ) THE petitioner has drawn support for his contention from a decision of this court rendered in writ petition No. 5170 of 1985 dated 7-3-1986. In the said decision it was held that the provisions of Section 34 of the C. P. C. are not attracted to a case wherein the rate of interest is contractually fixed and that the Court has no jurisdiction in reducing the rate of interest. In the instant case, it is sub-mitted on behalf of the petitioner that the rate of interest has been contracted at 11% p. a. and it is not susceptible to any modification or relaxation and therefore the interest awarded by the Tribunal in respect of the future interest is not sustainable and the rate of interest ought to be 11%. ( 5 ) IN a decision of the Division bench of this Court in the case of State bank of Mysore v. G. P. Thulasi Bai (ILR 1985 (2) Kar. 2976), it was held as follows :"it has been observed that the scope of the interaction of Section 34 and order 34 Rule 11 is that after the period for redemption has expired the matter passes from the domain of contract to that of Judgment. 2976), it was held as follows :"it has been observed that the scope of the interaction of Section 34 and order 34 Rule 11 is that after the period for redemption has expired the matter passes from the domain of contract to that of Judgment. The right of the mortgagee will henceforth depend not on the contents of his bond, but on the directions of the decree. Order 34, rule 11 gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest R. 51 is concerned and it is no longer absolutely obligatory on the Courts to decree interest at the contractual rates upto the date of redemption in all circumstances even if there is no question of the rate being penal, excessive, or substantially unfair. The Trial Court has not committed any error in exercising the discretion in reducing the contractual rate of interest to 6% from the date of suit till the date of realisation. " ( 6 ) IN the case decided by the Division Bench of this Court referred to above, the dispute related to the rate of interest charged from the date of suit till the date of realisation of the loan securing the immovable property of the first respondent. The contractual rate of interest is 2. 5% above the Reserve Bank rate of interest subject to a minimum of 14%. The trial Court awarded % from the date of suit till the realisation of the decretial dues. The contractual rate of interest is 2. 5% above the Reserve Bank rate of interest subject to a minimum of 14%. The trial Court awarded % from the date of suit till the realisation of the decretial dues. However this rate of interest awarded by the trial Court was challenged by the appellant contending that the contractual rate of interest from the date of suit till realisation as required under order 34 Rule 11 C. P. C. should have been granted and not the reduced rate of interest of 6% p. a. The question for consideration is whether the Tribunal was justified in bringing down the rate of interest from 11% to 6% p a. ( 7 ) IT was contended on behalf of the petitioner by the learned counsel that the decision of the Division Bench of this court is not applicable to the facts of this case, particularly in view of the fact that the interest that was awarded at a reduced rate in the facts of that case emanated from a Civil Suit and not from a pro ceeding before the arbitrator under the co-operative Societies Act. Secondly, it was contended that there is no discretion left either with the Tribunal or with the arbitrator in the absence of any statutory provision analogous to Section 34 under the Co-operative Societies Act. It was further contended that the decision of this Court rendered in writ petition No. 5170 of 1985 dated 7-3-1986 is directly on the point in issue wherein it was held that there is no scope for reducing the agreed rate of interest and therefore the order of the Tribunal to that extent is not sustainable. ( 8 ) I am of the opinion that the learned counsel for the petitioner is right in contending that the provisions of Section 34 c. P. C. cannot be applied to the facts of the instant case which directly comes within the frame work of the Co-operative societies Act. There is no provision analogous to Section 34 C. P. C. in the Co-operative Societies Act which enables either the Tribunal or the arbitrator to reduce the contractual rate of interest by exercise of discretion. In short, there is no provision for exercise of discretion at all where a contractual relationship stipulates payment of a particular rate of interest. There is no provision analogous to Section 34 C. P. C. in the Co-operative Societies Act which enables either the Tribunal or the arbitrator to reduce the contractual rate of interest by exercise of discretion. In short, there is no provision for exercise of discretion at all where a contractual relationship stipulates payment of a particular rate of interest. In these circumstances the Tribunal was not justified in reducing the future interest from 11% to 6%. ( 9 ) IN the result. I issue rule and make it absolute, I allow this writ petition and quash the impugned judgment. --- *** --- .