{"id":90105,"date":"2003-01-03T00:00:00","date_gmt":"2003-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravi-fabrics-vs-shaherbon-traders-on-3-january-2003"},"modified":"2016-05-23T20:28:49","modified_gmt":"2016-05-23T14:58:49","slug":"ravi-fabrics-vs-shaherbon-traders-on-3-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravi-fabrics-vs-shaherbon-traders-on-3-january-2003","title":{"rendered":"Ravi Fabrics vs Shaherbon Traders on 3 January, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Ravi Fabrics vs Shaherbon Traders on 3 January, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 03\/01\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM\n\nS.A. NO.711 OF 1992\n\nRavi Fabrics                                      .. Appellant\n\n-Vs-\n\n1. Shaherbon Traders\n\n2. O.N.A. Mahboob Subhani\n\n3. M. Ayishakani                              .. Respondents\n\n\n        Second Appeal against the judgment and decree dated 18-4-1990 in  A.S.\nNo.421  of  1989 on the file of the Principal City Civil Court, Madras against\nthe judgment and decree dated 28-4-1989 in O.S.  No.9176 of 1985 on  the  file\nof the I Assistant City C Court, Madras.\n\n!For appellant :  Mr.  R.Parthasarathy for\n                Mr.  S.Raghavan\n\n^For respondents:  Mr.  M.Muniruddin Sheriff\n\n:JUDGMENT\n<\/pre>\n
        “What is the rate of  interest  from  the  date  of  notice  demanding
\npayment  of  interest  till  the  date  of  institution of suit?” is the issue
\ninvolved in this case.\n<\/p>\n
        2.  The plaintiff in the suit is the appellant.\n<\/p>\n
        3.   The  plaintiff\/company  filed  the  suit for recovery of a sum of
\nRs.7,510.65 with interest at the rate of 21% per annum from the date of plaint
\ntill the date of payment.\n<\/p>\n
        4.  According to the plaintiff, the plaintiff sold  and  delivered  to
\nthe  first defendant, the textile goods and after giving credit to the payment
\nmade by  the  first  defendant,  there  was  a  due  owing  to  the  plaintiff
\nRs.7,510.65  towards  the  balance  for  e  of  the goods and is liable to pay
\ninterest on the unpaid value of the goods at the rate of 21% per annum.    The
\ndemand notice  was  sent  on  11-7-1984.    The  first defendant sent a reply,
\naccepting his liability to pay the principal amount, but denied the l iability
\nto pay any amount towards interest.  Hence, the plaintiff filed the  suit  for
\nrecovery  of  Rs.7,510.65  with interest at the rate of 21% per annum from the
\ndate of plaint till the date of payment and for costs.\n<\/p>\n
        5.  According to the defendants, the goods supplied by  the  plaintiff
\nwere  all of sub-standard quality, and this was informed to the plaintiff, and
\nthereupon, the plaintiff asked the defendants to sell the goods and agreed not
\nto charge any interest ny delay in selling the goods and that it is the custom
\nof the trade not to charge interest in case the goods supplied do not  conform
\nthe sample  shown.    The  defendants  agreed  to  pay  the admitted amount of
\nRs.7,510.65 in instalments and requested the Cour t to dismiss the rest of the
\nclaim.\n<\/p>\n
        6.  On the basis of the above pleadings, relevant issues  were  framed
\nby the  trial  Court.  No witness was examined on either side and only notices
\nexchanged between the parties were marked as Exs.A-1 to A-3.\n<\/p>\n
        7.  The trial Court, after considering the plaint,  written  statement
\nand other documents, concluded that the claim by the plaintiff to pay interest
\nat  the rate of 21% per annum has not been substantiated and as per the custom
\nprevailing in the trade, plaintiff is entitled to interest only at the rate of
\n6% per annum and therefore, the defendants  are  liable  to  pay  the  balance
\namount  along  with  interest at the rate of 6% per annum from the date of due
\ntill the date of realisation of the amount.\n<\/p>\n
        8.  Having not satisfied with the judgment and  decree  of  the  trial
\nCourt, the plaintiff filed appeal before the lower appellate Court, contending
\nthat the plaintiff would be entitled to interest at the rate of 21% per annum.
\nThe lower appellate Cou on considering the submissions made by learned counsel
\nfor  parties, would hold that there is no agreement with reference to the rate
\nof interest between parties and as such, the plaintiff would be entitled to 6%
\ninterest per annum.  Accordingly, the appe al was dismissed.  Challenging  the
\nsame, the plaintiff has approached this Court by filing this second appeal.\n<\/p>\n
        9.   While  admitting the second appeal on 2-7-1992, this Court framed
\nthe following substantial question of law:\n<\/p>\n
“Whether the lower appellate Court was right in declining to award interest to
\nthe appellant at the rate claimed by it in view of the provisions of the  Sale
\nof Goods Act and Section 34, C.P.C.?”\n<\/p>\n
        10.  Elaborating the above substantial question of law on the strength
\nof the  decision  reported  in  1988  (1)  L.W.   461 (RASHI LEATHERS (P) LTD.
\nMESSRS.  VS.  M\/S.SUPER FINE SKIN TRADERS), learned counsel for the  appellant
\nwould  contend  that  though  there iscretion for the Court to fix the rate of
\ninterest from the date of plaint till the date of realisation of  the  amount,
\nthe  Court  has  no discretion with reference to the rate of interest from the
\ndate of demand to the date of plaint and as such,  the  plai  ntiff  would  be
\nentitled for 21% interest per annum at least for the said period.\n<\/p>\n
        11.  In reply,  by  citing 2002 (3) C.T.C.  385 (THE A.P.S.R.T.C.  VS.
\nB.VIJAYA), a Full Bench judgment of  the  Andhra  Pradesh  High  Court  and  a
\ndecision of  the  Supreme  Court  reported  in 2002 (2) C.T.C.  354 = 2002 (1)
\nS.C.C.  367 (CENTRAL BANK OF INDIA  VS.    INDRA),  learned  counsel  for  the
\nrespondents  would  contend  that  the  rate  of  interest  as  pleaded by the
\nplaintiff, has not been proved and as such, this Court has got  discretion  on
\nequity  to  fix  the rate of interest as 6% per annum and therefore, the judgm
\nent of both the Courts below on the said point is perfectly justified.\n<\/p>\n
        12.  I have  carefully  considered  the  rival  contentions  urged  by
\nlearned counsel on either side.\n<\/p>\n
        13.   As  conceded  by  learned counsel for the appellant, there is no
\ndifficulty in confirming the finding with  regard  to  the  rate  of  interest
\nbetween  the date of plaint till the date of realisation of the decree amount,
\nfixing the rate of interest at er annum.  The only question to  be  considered
\nas  requested  by learned counsel for the appellant is as to whether the Court
\nhas got discretionary powers to fix the interest at the rate of 6%  per  annum
\nfrom the date of due to the date of plaint.\n<\/p>\n
        14.  At the outset, it shall be stated that the decision of a Division
\nBench of this Court in 1988 (1) L.W.  461 (supra) cited by learned counsel for
\nthe  appellant  does not lay down any principle with reference to the point in
\nissue.  The said decisi as given while the company  petition  for  winding  up
\nunder  Section 433 of the Companies Act, was disposed of and the said decision
\nwould not be of any use to the appellant.\n<\/p>\n
        15.  On a perusal of the judgment of the Supreme  Court  in  2002  (2)
\nC.T.C.   354  (supra)  and  the Full Bench decision of the Andhra Pradesh High
\nCourt in 2002 (3) C.T.C.  385  (supra),  cited  by  learned  counsel  for  the
\nrespondents,  it  is  clear  that in the a ce of any agreement between parties
\nwith reference to the rate of interest, the Court has got powers  to  fix  the
\nrate of interest on equity.\n<\/p>\n
        16.   The  term  “interest”  is neither defined in the Civil Procedure
\nCode nor in the Interest Act, 1978.  According to the West’s Legal  Thesaurus,
\n“interest” is  a  charge  that  is paid to borrow for use of money.  The terms
\n“interest” has been defined i e Concise Oxford Dictionary as  the  money  paid
\nfor the use of money lent.  The word “interest” as per the Chamber’s Twentieth
\nCentury Dictionary, literally means the premium paid for the use of money.  As
\nper  the Black’s Law dictionary, the “interest” is the compensation allowed by
\nlaw or fixed by the parties for the use of forbearance or detention of money.\n<\/p>\n
        17.  The interest is a charge made for the use of money given  by  one
\nperson and  taken by another.  When a person claims a certain amount to be due
\nfrom another and he is found entitled to it, he may be awarded a  further  sum
\ncalled “interest”  dependi  n  the  circumstances  of  each case.  The rate of
\ninterest may either be by agreement or by operation  of  statutory  provisions
\nwhere it specifically provides for such payment.\n<\/p>\n
        18.   The natural conception of the word “interest” is the ordinary or
\nnormal profit which the person entitled to the  principal  money,  might  have
\nmade, had he used the said money or his expected loss under casual or ordinary
\ncircumstances due to the payment of the same at the proper time.\n<\/p>\n
        19.   It  is  noticed that the interest prior to the date of filing of
\nthe suit is a matter of substantive law and is outside the scope of Section 34
\nC.P.C.  This Section applies to the award of interest from the  date  of  suit
\ntill  the date of decree, i “interest pendente lite” and also from the date of
\ndecree till the date of payment.  Interim interest as well as future  interest
\non judgment rests entirely in the discretion of the Court.  Such discretion is
\nnot limited to the rate of interest only.  It applies to the award of interest
\nas well.\n<\/p>\n
        20.  It is well established that the Court will award interest for the
\nperiod  prior  to  the  date of the suit, if there is an agreement to pay such
\ninterest.  Likewise, where there  is  a  stipulation  to  pay  interest  at  a
\nparticular rate,  the  Court  must  a  that rate, however high it may be.  The
\nquestion of exercise of discretion by the Court does not arise in such  cases.
\nThe  Court  has  no  power  to  deviate  from the agreement by disallowing the
\ninterest or by allowing interest at a rate other than agreed b y the  parties.
\nSuch agreement may be express or implied.\n<\/p>\n
        21.   Section  80  of the Negotiable Instruments Act, 1881 enacts that
\nwhere no rate of interest is specified in a negotiable instrument,  the  Court
\nshall award interest at the rate of 6% per annum irrespective of the agreement
\nbetween the  parties.  Sim ly, under Section 61 of the Sale of Goods Act, even
\nin the absence of a stipulation in the contract to pay  interest,  the  vendor
\nwill be  entitled  to  interest  at a reasonable rate.  Likewise, the Interest
\nAct, 1978 makes provision for payment of interest p rior to the institution of
\nthe suit.  In so far as mercantile usage is concerned, in the  absence  of  an
\nagreement  to pay interest prior to the institution of the suit, the Court may
\ngrant interest if it is payable by usage or trade having the force of law .\n<\/p>\n
        22.  It is settled law as per the pronouncement of the Courts that the
\ninterest can also be awarded by the Court on equity.  In order to  invoke  the
\ndoctrine  of  equity,  it  is necessary in the first instance to establish the
\nexistence  of  circumstance  ich  attract  equitable  jurisdiction,  such   as
\nnon-performance  of  a contract of which equity requires specific performance,
\nor where the owner is deprived of his property without paying  price  thereof,
\nor  where money has been improperly detained and not paid to the person who is
\nentitled to it.\n<\/p>\n
        23.  Section 34 C.P.C.  reads as follows:-\n<\/p>\n
“34.  Interest:-\n<\/p>\n
(1) Where and in so far as a decree is for the payment of  money,  the  Court,
\nmay,  in the decree, order interest at such rate as the Court deems reasonable
\nto be paid on the principal sum adjudged, from the date of  the  suit  to  the
\ndate  of  the  decree, i n addition to any interest adjudged on such principal
\nsum for any period prior to the institution of the suit, with further interest
\nat such rate not  exceeding  six  per  cent  per  annum  as  the  Court  deems
\nreasonable  on such principal sum, from the date of t he decree to the date of
\npayment, or to such earlier date as the Court thinks fit:\n<\/p>\n
        Provided that where the liability in relation to the sum  so  adjudged
\nhad  arisen out of a commercial transaction, the rate of such further interest
\nmay exceed six per cent per annum, but shall not exceed the  contractual  rate
\nof  interest  or  where ther no contractual rate, the rate at which moneys are
\nlent or advanced by nationalised banks in relation to commercial transactions.\n<\/p>\n
(2) Where such a decree is silent with  respect  to  the  payment  of  further
\ninterest  on  such  principal  sum  from the date of the decree to the date of
\npayment or other earlier date, the Court shall be deemed to have refused  such
\ninterest, and a separate s uit therefor shall not lie.”\n<\/p>\n
        24.  There are three divisions of interest as dealt with in Section 34
\nC.P.C.   The division is according to the period for which interest is allowed
\nby the Court, namely, (i) interest accrued due prior to the institution of the
\nsuit, (ii) additional rest from the date of the suit to the date of the decree
\nand (iii) further interest from the date of the decree  to  the  date  of  the
\npayment  or  to  such  earlier  date  as  the  Court thinks fit, at a rate not
\nexceeding 6% per annum.  These three sets of interes t are called as  pre-suit
\ninterest,  “interest  pendente  lite”  and  interest  post  decree  or  future
\ninterest.\n<\/p>\n
        25.  Pre-suit interest is referable to  substantive  law  and  can  be
\nsub-divided into  two  sub-heads:    (i)  where there is a stipulation for the
\npayment of interest  at  a  fixed  rate  and  (ii)  where  there  is  no  such
\nstipulation.   If  there is a stipulation for rate of interest, the Court must
\nallow the rate upto the date of the suit, subject to three exceptions:- (i)any
\nprovision of law applicable to money lending transactions, or  usury  laws  or
\nany  other  debt  law governing the parties and having an overriding effect on
\nany stipulation for payment of interest voluntarily entered  nto  between  the
\nparties;  (ii)  if  the rate if penal, the Court must award at such rate as it
\ndeems reasonable and (iii) even if the rate is not penal, the Court may reduce
\nit if the in terest is excessive and the transaction was substantially unfair.\n<\/p>\n
        26.  If there is no express stipulation for payment of  interest,  the
\nplaintiff  is  not  entitled  to interest except on proof of mercantile usage,
\nstatutory right to interest or an implied agreement.  Interest from  the  date
\nof suit  to  date  of decree is he discretion of the Court.  Interest from the
\ndate of the decree to the date of payment, is again in the discretion  of  the
\nCourt – to award or not to award as also the rate at which to award.\n<\/p>\n
        27.   As  a  matter  of  fact,  when  a  notice has been issued by the
\nplaintiff, there is specific denial through reply by the defendants that  they
\nare not  liable to pay any interest on the balance payment.  Despite this, the
\nplaintiff has not chosen to pro hat there is implied agreement between parties
\nwith reference to the stipulation for payment of interest.\n<\/p>\n
        28.  There is no dispute in the principle that pre-suit interest is  a
\nmatter of substantive law and a voluntary stipulation entered into between the
\nparties  for  payment  of interest, would bind the parties, as also the Court,
\nexcepting in any case of the three exceptions set out earlier.\n<\/p>\n
        29.  In this case, there is no  proof  to  show  that  there  was  any
\ncontract between  parties  to pay interest at a particular rate.  The claim of
\nthe plaintiff is that even assuming that there was no stipulation with  regard
\nto rate of interest, by virtue rovision under Section 34 C.P.C., the plaintiff
\nwould  be entitled to the rate of interest at which the moneys are advanced by
\nthe nationalised Banks in relation to the  commercial  transactions  which  is
\nconnected  with  the trade, custom and usage, and as such, the plaintiff would
\nbe entitled to the rate of interest at 21% per annum for the period  upto  the
\ndate of suit.\n<\/p>\n
        30.  But, it is to be stated that mere claim would not suffice to hold
\nin favour of the plaintiff.  In order to make avail of trade, custom or usage,
\nit  is incumbent on the plaintiff to adduce evidence as to what is the rate of
\ninterest prevalent a r the trade, custom or usage.  Admittedly, in this  case,
\nno  attempt  has  been made by the plaintiff by adducing evidence to prove the
\nsame.  It would not be left to a speculation as to what is the prevailing rate
\nof interest as per the existing trade, cus tom or usage.\n<\/p>\n
        31.  The claimant cannot be relieved of his duty to adduce  acceptable
\nevidence on current rate of interest on deposits in nationalised Banks or rate
\nof  interest  charged on moneys lent or advanced on commercial transactions by
\nthe nationalised Banks.  course, the Court may take  judicial  notice  of  the
\nrates prescribed  by  the  Reserve Bank.  But, it is neither uniform nor fixed
\nfor all times to come.  It is fluctuating and variable.  In such a  situation,
\nit  is  not desirable for the Court to take judicial notice and order interest
\non the basis thereof.\n<\/p>\n
        32.  Where there is a source of definite evidence to prove the current
\nrate of interest, when the party did not adduce evidence in  that  regard,  it
\nmay  not be proper for the Court to speculate as to the said rate of interest.
\nTherefore, it would be tary  to  pin  the  parties  down  to  adduce  relevant
\nevidence  to  show  that  particular  rate of interest was the current rate of
\ninterest at the relevant time being charged by the nationalised Banks  on  the
\nmoneys lent or advanced on commercial transactions.\n<\/p>\n
        33.   The  abovesaid  view of mine is fortified by the judgment of the
\nAndhra Pradesh High Court in AIR 1985 A.P.  21 (SRI SRINVASA CO.  VS.    FIRM,
\nV.D.H.A.  SETTI).\n<\/p>\n
        34.   Under  those  circumstances,  the  rate of interest fixed by the
\ntrial Court as well as the lower appellate Court at 6% per annum in regard  to
\nthe  period  between  the  date  of demand and the date of presentation of the
\nsuit, is quite correct and does warrant any interference.    Consequently,  it
\nhas  to  be  held  that  no  substantial  question  of  law  would  arise  for
\nconsideration in the second appeal.  The  second  appeal  is  dismissed.    No
\ncosts.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\ncs<\/p>\n
To\n<\/p>\n
1.Principal Judge, City Civil Court, Madras.\n<\/p>\n
2.I Asst.  Judge, City Civil Court, Madras.\n<\/p>\n
3.Record Keeper, V.R.  Section, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ravi Fabrics vs Shaherbon Traders on 3 January, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03\/01\/2003 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM S.A. NO.711 OF 1992 Ravi Fabrics .. Appellant -Vs- 1. Shaherbon Traders 2. O.N.A. Mahboob Subhani 3. M. Ayishakani .. Respondents Second Appeal against the judgment and decree […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-90105","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRavi Fabrics vs Shaherbon Traders on 3 January, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ravi-fabrics-vs-shaherbon-traders-on-3-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ravi Fabrics vs Shaherbon Traders on 3 January, 2003 - 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