J U D G M E N T :
1 The present appeal is directed against the judgment and decree dated 31.1.1994, rendered by the Joint Civil Judge, Senior Division, Jalgaon, in Special Civil Suit No. 10 of 1991, more particularly in respect of the finding recorded by the said learned Judge on Issue Nos. 3 and 3-A thereby granting interest only at the rate of 9 per cent per annum to the plaintiff instead of 18 per cent per annum on the amount due as claimed by the plaintiff/appellant.
2 The appellant is the original plaintiff and the respondent is the original defendant, namely Faizpur Municipal Council, represented through its Chief Officer, Taluka Yawal, District Jalgaon, whereas the plaintiff is a registered partnership firm. The parties are referred hereinafter as per their original status i.e. 'the plaintiff'' and 'the defendant'.
3 The defendant Municipal Council had to give some work of construction of building for Union Bank of India and also for the office of Municipal Council and Meeting Hall on it's Plots bearing City Survey Nos. 1848, 1849 and 3777, and hence, the defendant gave contract to the plaintiff, which was sanctioned on 26.1.1987. Accordingly, the plaintiff deposited Rs.25,000/- with the defendant as earnest money and work order was given to the plaintiff by the defendant, and the plaintiff executed an agreement in favour of the defendant to that effect.
4 According to the plaintiff, it carried out work to the tune of Rs.6.73.109.61 Ps. and the defendant took the measurements thereof and also took the possession and entry was recorded in the record of the defendant to that effect. However, it is the case of the plaintiff that the defendant paid in all Rs.4,94,644.90 Ps. at three times, but as per the last bill, a sum of Rs.1,78,464.71 Ps. was due towards the defendant. In addition to that, Rs.25,000/- as earnest amount and Rs.21,964.50 Ps. as deposit, are also due towards the defendant and the plaintiff was entitled to get that amount. Hence, the plaintiff demanded the said amount to the defendant from time to time orally as well as in writing, but the defendant failed to pay the same to the plaintiff.
5 It is also the case of the plaintiff that on 26.7.1990, the Municipal Council passed a resolution and decided to pay amount of Rs.21,964.50 Ps. deducted from the bill dated 7.1.1988; amount Rs. 25,000/- as earnest money; and the outstanding amount of the work to the plaintiff and the plaintiff was to give discount of Rs.8,000/- to the defendant if the afore said amount was paid to the plaintiff by the defendant within the period of two months from the date of said resolution. However, it is the grievance of the plaintiff that in spite of the said resolution, the defendant failed to make payment of Rs. 2,25,429.31 Ps. Hence, by letters dated 23.9.1990 and 8.10.1990, the plaintiff demanded the afore said amount from the defendant, but same was not paid to the plaintiff. Lastly, the plaintiff gave notice as per Section 304 of the Municipalities Act to the defendant and demanded the dues and also prayed for damages by way of interest at the rate of 18 per cent per annum. However, in spite of the said notice, no amount was paid by the defendant to the plaintiff. Hence, the plaintiff filed the suit for recovery of the amount of Rs.2,25,429.31 Ps. from the defendant and also claimed interest at the rate of 18 per cent per annum from 1.6.1989 and claimed total amount of Rs. 2,91,367.29 Ps. and costs of the suit and future interest, etc. from the defendant.
6 The defendant appeared in the said suit, filed the written statement and resisted the suit claim.
7 The learned Trial Judge framed the issues and issue nos. 3 and 3-A pertained to the interest, it's rate and the amount thereof. Considering the pleadings and the evidence adduced by the parties and also considering the rival submissions advanced by both the learned respective counsel for the parties, the learned Joint Civil Judge, Senior Division, Jalgaon decreed the said suit in favour of the plaintiff for the amount of Rs.2,58,378.19 Ps. with proportionate costs thereof and also directed the plaintiff to recover future interest at the rate of 9 per cent per annum from 18.1.1991 till repayment on Rs. 2,25,429.31 Ps. Being aggrieved by the said grant of interest component at the rate of 9 per cent per annum instead of 18 per cent per annum as claimed by the plaintiff, the plaintiff has preferred the present appeal challenging the said finding in respect of issue nos. 3 and 3-A.
8 Thus, the controversy centers around the narrow compass i.e. in respect of grant of interest which was granted at the rate of 9 per cent per annum from 18.1.1991 till the payment of Rs. 2,25,429.31 Ps., although the plaintiff claimed the same at the rate of 18 per cent per annum.
9 In the said context, the plaintiff examined himself as PW1 and stated that two letters were sent to the defendant on 23.9.1990 and 8.10.1990 and tendered copies thereof at Exhs. 31 and 32. However, no payment was made by the defendant Municipal Council. Thereafter the plaintiff served notice on the defendant on 10.11.1990 as per the Municipalities Act and tendered copy thereof and it's acknowledge at Exhs. 33 and 34.. The witness further stated that as in spite of notice also no payment was made to him, he claimed damages at the rate of 18 per cent per annum i.e. Rs. 65,937.98 Ps. and claimed total amount of Rs.2,91,367.29 Ps. and costs of the suit from the defendant.
10 It was canvassed that there is neither pleading of the defendant nor challenge to the said claim of the interest at the rate of 18 per cent per annum and even there is no suggestion to that effect in the cross-examination of the plaintiff, and hence, prayed that the interest as claimed by the plaintiff be awarded to him.
11 On the face of the said position, the defendant examined Mr. Bhikanrao Baviskar i.e. the Chief Officer of the defendant Municipal Council. By filing written statement as well as examining the afore said witness, the defendant disputed and denied the suit claim of the plaintiff. The said witness categorically stated in his deposition that the defendant has paid Rs.4,94,000/- and some Paisas to the plaintiff. The claim shown by the plaintiff is not due towards the defendant, and therefore, there is no question of payment of any interest to the plaintiff, and consequently, prayed that the suit filed by the plaintiff be dismissed.
12 Heard the learned respective counsel for the parties.
13 I have considered the rival submissions advanced by both the learned respective counsel for the parties. Section 34 of the Code of Civil Procedure deals with the interest, which is reproduced hereunder for ready reference : -
" 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 the 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 :
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
Explanation I : - In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Explanation II : - For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. (2) "
14 Thus, it is apparent from the first and main part of said Section 34 (1) of the Code of Civil Procedure that there appears to be restriction in respect of grant of further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, but the proviso of the said Section contemplates that where the liability in relation to the sum so adjudged has arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
15 Admittedly, the transaction that took place between the plaintiff and the defendant was a commercial transaction, and therefore, as per proviso of the afore said Section 34 of the Code of Civil Procedure, the plaintiff was entitled for the further interest above the rate of six per cent per annum. However, further admittedly there is no contractual rate of interest decided between the parties, as well as simultaneously the plaintiff has not produced any documentary evidence on record to prove and establish the rate at which the moneys were lent or advanced by the nationalised bank in relation to commercial transactions prevalent and existing at the relevant time.
16 Hence, in the light of afore said facts, it is manifestly clear that the plaintiff was entitled for the further interest above the six per cent per annum, but since no contractual rate was decided between the parties and since the plaintiff has failed to produce the evidence in respect of prevalent and existing rate of interest at which moneys were lent or advanced by the nationalised bank in relation to commercial transactions at the relevant time, the plaintiff certainly is not entitled for further interest at the rate of 18 per cent per annum as claimed by it.
17 In the said context, while answering issue nos. 3 and 3-A, the learned Trial Judge observed that the rate of interest at 18 per cent per annum, as claimed by the plaintiff by way of damages, is not just and proper rate of interest and the interest at the rate of 9 per cent per annum would be just and proper, as the plaintiff had admitted to give discount of Rs.8,000/- seeing the nature of the suit, and accordingly, the learned Trial Judge awarded the further interest to the plaintiff at the rate of 9 per cent per annum on Rs.2,25,429.31 Ps. from 18.1.1991 i.e. from the date of filing of the suit and answered the said issue nos. 3 and 3-A accordingly.
18 Moreover, it is submitted by the learned respective counsel for the parties that the defendant has paid the said decretal amount to the plaintiff and there is no dispute about the same.
19 Hence, having the comprehensive view of the matter, I am of the opinion that the view adopted by the learned Trial Judge in respect of grant of further interest at the rate of 9% per annum, is a possible view to be adopted after analysing and assessing the evidence on record and also considering the provision of Section 34 and it's proviso, as afore stated. Besides, the finding recorded in that respect by the learned Trial Judge appears to be based on legal footing and does not appear to be perverse, and therefore, no interference therein is warranted in the appellate jurisdiction.
20 In the result, the present appeal bears no substance and same is devoid of any merits, and hence, same stands dismissed. No costs.