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1991 DIGILAW 48 (GUJ)

Central Bank of India v. Moonlight Ceramic Industries

1991-02-13

D.G.KARIA, R.A.MEHTA

body1991
JUDGEMENT : R. A. Mehta, J. 1. Central Bank of India, the original plaintiff, is aggrieved by that part of the decree where the rate of interest is only 6% per annum from the date of advancement (1976) as against the contractual rate of 18.5% per annum. The learned Counsel for the appellant relied on the provisions of Section 34 of the Civil Procedure Code and two judgments of this Court, in the case of Central Bank of India v. M/s. P.B. Garments Industries Pvt. Ltd : and Others, 1985 G.L.H. 781 and in the case of Union Bank of India v. Narendra Plastics, 1990 (2) G.L.R. 1283 . 2. The learned trial Judge, in para 7 of the judgment, observed that the defendant-firm is a sick unit and that the defendants have shown readiness and willingness to pay the whole amount immediately. (These two things are wholly inconsistent). The learned trial Judge observed that looking to the outstanding long period and the fact that the plaintiff- Bank has not received any amount from the defendants, if a decree is passed in terms of the contractual stipulation, the plaintiff-Bank will not be able to recover the amount for the indefinite period and therefore according to the learned trial Judge it was desirable and in the interest of Bank also to pass a decree in favour of the plaintiff-Bank on a concessional rate of interest for a period prior to the suit and for that purpose a condition was imposed that if the decretal dues are not paid within the limited time, the plaintiff- Bank will be entitled to recover the amount at the contractual rate of interest. 3. The trial Court could not have decreed less than contractual rate of interest prior to the date of the suit. Even after the date of the suit, it is within the discretion of the Court and in case of commercial transactions, a sound discretion is to award the contractual rate of interest even during the pendency of the suit and after the decree in the suit. The reasons given by the trial Court are without any basis. From 1976 to 1990, the dues are not paid, which carry the contractual rate of interest at 18½ percent. The reasons given by the trial Court are without any basis. From 1976 to 1990, the dues are not paid, which carry the contractual rate of interest at 18½ percent. After such a long period, if the dues were to be paid at a simple rate of interest and, that too, at a very small rate of 6%, it would be putting a premium and giving undue benefit to a person who has committed the default at the cost of a public financial institution. The fact that the defendants were ready and willing to pay the entire amount at a time shows that the defendants had the resources and ability to pay the amount. Even if a unit might be a sick unit, the owners thereof are not necessarily sick and financially weak. The liability of the owners and partners of the firm is unlimited and personal acid nothing has been shown to the effect that the partners of the firm are in any financial difficulties. Moreover, the approach of the trial Court reflects the attitude of the debtor-defend. As if the defendant is obliging the Bank while returning the principal amount with 6% interest, the trial Court has thought that it is desirable and in the interest of the Bank to pass a decree on a concessional rate of interest. The so-called request by the defendants is a veils threat coupled with inducement to which the trial Court ought not to have succumbed. The Bank is the best judge of its interest and if it does not consent to any concession in the rate of interest, a decree regarding interest cannot be passed to the detriment of the Bank. 4. In the case of 'Central Bank of India v. P.B. Garments Industries Pvt. Ltd. (supra), Division Bench of this Court held that ordinarily rare of interest in such commercial transaction shall be contractual rate or such rate at which moneys are lent by the Nationalised Banks in relation to commercial transactions, otherwise, it would amount to the Court granting facility of someone else's money at a lower rate of interest. It was further observed that because a party has committed default in payment and the Bank is required to file a suit against such party, such defaulting party cannot have the benefit of lesser rate of interest. This applies squarely on the facts of this case. 5. It was further observed that because a party has committed default in payment and the Bank is required to file a suit against such party, such defaulting party cannot have the benefit of lesser rate of interest. This applies squarely on the facts of this case. 5. In the case of Union Bank of India v. Narendra Plastics (supra), this view has been followed and it has been held that ordinarily rate of interest in such commercial transaction should be the contractual rate. 6. The learned Counsel for the respondents relied on the judgment of the Supreme Court in the case of Indian Insurance and Banking Corporation Ltd, v. Mani Paravathu and Another, 1971(3) Supreme Court Cases, 893, In that case, the Supreme Court observed that after the date of the suit, interest is in the discretion of the Court and the normal rate of Court interest is 6%. However, this was based on Section 34 prior to the amendment, whereas after the amendment, in commercial transactions contractual rate of interest is the normal rule under Section 34, even after the date of the suit. In the present case, the trial Court has granted the rate of 6% interest even prior to the date of the suit. That could not have been done even under old Section 34 of the Civil Procedure Code prior to the amendment. After the amendment, the contractual rate is the rule and lesser rate of interest even after the date of the suit will be an exception. 7. In view of the above discussion, it is clear that the trial Court has erred in awarding concessional simple rate of interest of 6% per annum from the date of advance, i.e. 9-10-1976 and therefore that part of the decree is required to be modified. It is, therefore, directed that the plaintiff-Bank is entitled to recover the advance along with interest at the rate of 18½% per annum from the date of the advance till realisation. 8. The appeal is allowed accordingly with costs. Appeal allowed.