RADHEY SHAM Vs. SMT. SANTOSH RANI AND ANR.

JUDGEMENT

(1.) THIS revision petition is directed against order dated 11.3.1995 of the Sub Judge, Ist Class, Dabwali, whereby objections preferred under Section 47 of the Code of Civil Procedure against the execution of money decree has been dismissed.

(2.) ADDITIONAL Senior Sub Judge, Dabwali, decreed Civil Suit No.22 -C dated 9.1.1991 on 24.5.1994 for recovery of Rs. 30,865/ - with costs, interest at the rate of 1 -1/2 per mensem, from the date of filing of the suit till actual realisation of the amount in question. The decree became final between the parties as no appeal was filed against it. Decree -holder filed an execution application for recovery of the decretal amount. Judgment -debtors instead of paying the amount claimed by the decree -holder, filed objections under Section 47 of the code of Civil Procedure. Objections raised were that the decree passed by the trial Court is a nullity and without jurisdiction as the same had been passed in contravention of the provisions of Section 34 of the Code of Civil Procedure. It was contended that according to Section 34 of the Code of Civil Procedure, future interest more than 6 per cent could not have been awarded. Upon contest by the decree -holder, executing Court held that the objections are wholly untenable and thus, dismissed the same. One of the judgment -debtors has preferred the present revision petition.

(3.) AFTER hearing the learned counsel for the parties and going through the case law cited at the Bar, I am of the view that there is no merit in the contention of learned counsel appearing on behalf of petitioner. Proviso to Section 34 of the Code of Civil Procedure, provides that where the liability in relation to sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6 per cent per annum, but shall not exceed contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised bank in relation to commercial transactions. Explanation -II added to Section 34 states that for the purpose of Section 34, a transaction is a commercial transaction if it is connected with the industry, trade or business of the party incurring the liability. It is patent from a reading of the judgment passed in the suit that the loan in question was taken by the defendants (judgment -debtors) in the course of their partnership business. They had agreed to pay interest at the rate of 1 -1/2 per mensem i.e., 18 per cent per annum. As a matter of fact, an issue regarding rate of interest was specifically framed by the trial Court and on appreciation of the evidence adduced by the parties to the suit. The Court under the said issue specifically held that the defendants had agreed to pay interest at the rate of 1 -1/2 per mensem and the plaintiff (decree -holder) is entitled to recover interest at the said rate. In Syndicate Bank v. West Bengal Cements Ltd. and Ors. : A.I.R. 1989 Delhi 107. Y.K. Sabharwal, J. (as his Lordship then was) held that in commercial transactions, grant of interest for period after passing of decree at the contractual rate ought to be rule and grant of interest at reduced rate a rare exception. It was observed that the very purpose of the proviso to Section 34, as amended by Act of 1976, would be lost if as a matter of rule the interest is awarded at a rate not exceeding 6 per cent per annum in commercial transaction. The transaction in question being a commercial transaction. The interest awarded by the Court was in accordance with the provisions of Section 34 of the Code of Civil Procedure and therefore, the decree cannot be said to be without jurisdiction. The judgment of Siri Chand's case (supra) cited by the counsel has no application to the facts of the present case.