ORDER Arun Tandon, J.
1. Heard Sri Sanjeev Kumar, holding brief of Sri Shashi Nandan, Senior Advocate, learned counsel for the petitioner. Sri Sandeep Agarwal, learned counsel for the respondent No. 5 and Sri Piyush Shukla, learned counsel for the State respondents.
2. This writ petition is directed against the order dated 12th March, 1992 passed by the District Magistrate, Etawah in case No. 18/1936/90-91 as also against the order dated 26th August, 1992 passed by the Commissioner, Kanpur Division, Kanpur in Appeal No. 15 of 1992.
3. Original suit No. 17 of 1930 (Lala Rameshwar Das v. Jai Narayan and Ors.) was filed for recovery of a sum of Rs. 26,999/-75 Anna 3 Paisa. The said suit was decreed by means of the judgment and decree dated 7th April, 1931 by the Additional District Judge, Kanpur. The operative portion of the said order, relevant for the purposes of the present controversy reads as follows :
"Plff. claim for Rs. 26,999/12/3 is therefore decreed with costs and future interest pendente lite and afterwards up to the date of realisation as per statutory provisions."
4. Against the said defendants, there were other decrees and liabilities to be discharged, consequently the proceedings under Section 14 of the United Provinces Encumbered Estates Act (hereinafter referred to as the E. E. Act') were initiated. The claim of Sri Dwarika Prasad, legal heir of Sri Lala Rameshwar Das was considered by the civil Judge, Etawah by means of the order dated 31st July, 1953, and it was held that the claim of Dwarika Das was decreed for a sum of Rs. 21,298/- with costs and pendente lite and future interest at the statutory rate. The operative Portion of the said order, relevant for the purpose of controversy, reads as follows :
"The claim of Seth Dwarika Prasad of firn' Tej Pal Jamuna Dass is decreed for Rs. 21,298/- with costs and pendente lite and further interest at the statutory rate."
5. For realization of money, as awarded under the order dated 31st May, 1953, proceedings for execution under Section 19 of the E. E. Act, were initiated. The Additional District Magistrate by means of the order dated 25th March, 1991 held that the statutory rate of interest as mentioned in the order of the Civil Judge dated 31st July, 1973 should be 18% only.
6. Feeling aggrieved by the aforesaid order of the Additional District Magistrate dated 31st July, 1953, the defendants filed an application for recall of the order dated 25th March, 1991 before Additional district Magistrate with the allegations that the statutory rate of interest at the relevant date under Section 34 of the code of Civil Procedure (hereinafter referred to as the code) was 6% only and consequently finding recorded by the Additional District Magistrate under the order dated 25th March, 1991 granting future interest at the rate of 18% was totally unjustified.
7. By means of the order dated 12th March, 1992, the district Magistrate /Collector, Etawah, after hearing the parties, had set aside the order dated 25th March, 1991 of Additional District Magistrate and held that under the order dated 31st July, 1953 of Civil Judge, the decree holder was entitled of grant of interest of 6% only for the period subsequent to the date of decree.
8. Feeling aggrieved by the aforesaid order of the District Magistrate dated 12th March, 1992 the petitioner filed an appeal, being Appeal No. 15 of 1992, before the Commissioner, Kanpur Division, Kanpur under Section 45 (3) of the E. E. Act on two grounds namely : (a) District Magistrate had no power to review the order passed by the Additional District Magistrate dated 25th March, 1991 granting interest of 6% only, and (b) the order dated 12th March. 1992 was passed in violation of principle of natural justice and before passing the said order no opportunity of hearing was afforded to the petitioner.
9. By means of the order dated 26th August, 1992, the Commissioner, Kanpur Division, Kanpur, after hearing the parties and after referring to the provisions of 34 of the Code, as was applicable on the relevant date, recorded finding that the plaintiff was entitled to the future interest at the rate of 6% only and, therefore, affirmed the order of the District Magistrate dated 12th March, 1992. Hence the present writ petition.
10. On behalf of the petitioner it is contended that the Commissioner, Kanpur Division, Kanpur has failed to appreciate that the order dated 12th March, 1992 was in violation of the principle of natural justice and further the said order was without jurisdiction as the District Magistrate had no power to review.
11. It is further contended that under the provisions of Section 34 of the code awarding interest at the statutory rate could be 18% and even otherwise on merits the order passed by the Commissioner cannot be sustained.
12. The first two contentions raised on behalf of the petitioner have force and it was obligatory upon the Commissioner to have decided the same, before embarking upon the issue on merits. However, he has permitted the parties to make submissions with regards the matter in view of the fact that the plaintiff, who had obtained a decree as early on 31st July, 1953, has not been able to avail the fruits of the decree for last 74 years.
13. No purpose would be served in these circumstances, by setting aside the order passed by the Commissioner as well as by the District Magistrate on the grounds of violation of principle of natural justice, with the directions to the authority to decide the issue afresh. Since this Court itself has heard learned counsel for the parties on merits in the matter, it is appropriate and in the interest of justice that issue, which has been the bone of contention between the parties for last 74 years be finally decided by this Court.
14. In such circumstances, the writ petition is being decided on the respective contentions raised on behalf of the parties with regards to rate of interest applicable.
15. From the order passed by the trial Court in the original suit as well as from the order passed by the Civil Judge under the provisions of E. E. Act dated 7th April 1931 and 31st July, 1953 respectively, and it is apparently clear that the plaintiff was awarded future interest at the statutory rate only. The question for considerations is as on the relevant date i.e. 7th April, 1931 what was the statutory rate of the interest.
16. The parties have placed before this Court, the provisions of Section 34 of the Code, which stood prior to 31st July, 1953, which was relevant at the date of the order as was passed. The said Section, prior to its amendment, reads as follows :
"Where and insofar 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 to the institution of the suit, (with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged,) from the date of the decree to the date of payment or to such earlier date as the Court thinks fit."
17. The provisions of Section 34, which were amended vide Section 2 by Act 66 of 1956, added the word (with future interest, at such rates not exceeding 6%), thus amended Section reads as follows :
"Where and insofar 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 dates as the Court thinks fit."
18. Thus, it is apparently clear that prior to enforcement of amending Act No. 66 of 1956 there was no ceiling limit at the rate of interest which could be awarded by the trial Court. It was open to the Court to fix any rate for future interest while passing the decree. Before the Courts below no parties have not led any evidence to establish as to what was the statutory rate on the date when the order dated 31st July, 1953 was passed.
19. However, learned counsel for the petitioner has produced before me a judgment of Madras High Court reported in AIR 1924 Madras 102 (Ambi alias Subramaniam Pattar v. P.K. v. Sridevi Styled Vala Thamburati) wherein the Madras High Court has held that the interest at the usual rates was 6% only. However the said judgment is not a proposition for recording a finding that the statutory rate of interest at the relevant time was 6% only.
20. Reliance has been placed by the decree-holder upon the judgment of the Hon'ble Supreme Court reported in 2004 (2) Supreme Bound Reports, 381 : (2003 AIR SCW 6839) (Sri Ramnik Vallabhadas Madhvani v. Raraben Pravinlal Madhvani) for the purposes of establishing that the trial Court had jurisdiction to award the interest even at a higher rate in comparison to the interest rate charged by Nationalized Bank. There is no dispute with regards to the proposition as laid down by the Hon'ble Supreme Court in the said judgment.
21. Prior to amendment of 1956 in Section 34, it was open to the trial Court to award the future interest at higher rate than 6%. Meaning thereby at any rate, which the Court could deem just, under the facts of the case. It could also be higher than the rate of interest permitted by the Nationalized Bank. However, in the facts of the case for determination is as to what was the statutory rate of interest at the relevant date.
22. On the behalf of the decree-holder reliance has been placed upon the Judgment of the Hon'ble Supreme Court reported in 1987 Supp SCC 61 (Shree Hanuman Jute Mills v. Brij Kishore Kela). The Hon'ble Supreme Court in the said judgment after, having regard to the hike in the rate of interest and after taken judicial notice of fall of rupee value in the ends of justice directed that the plaintiff be awarded future interest at 12%. Although in the said judgment the Hon'ble Supreme Court has not laid down any proposition of law to the effect that in cases where no rate of interest has been disclosed in a decree, the interest at the rate of 12% is to be awarded by the Court. The judgment is not a precedent awarding interest to a plaintiff in decree passed prior to the amendment of Section 34 of the Code.
23. After hearing the parties at length and having regard to the fact that none of the parties has led any evidence to establish as to what was the statutory rate to interest on the relevant date, this Court in order to bring the litigation to an end feels that some reasonable rate of future interest be determined between the parties.
24. In the statement at page No. 4 as recorded on issue No. 2 of the judgment and decree of the trial Court dated 7th April, 1931 it is mentioned that interest at the rate of 9% per annum was being paid, by the defendant to the plaintiff in respect of commercial transactions.
25. In the circumstances, the same rate of interest, which the defendant was paying to the plaintiff, admittedly, in the case of business transaction, will be appropriate for fixing the future interest as payable under the judgment and decree passed by the trial Court. This order is being passed in the peculiar facts and circumstances of the case. It is provided that the plaintiff shall be entitled to the future interest at the rate of 9% per annum from the date of the decree.
26. Subject to observations, made herein above, this petition is partly allowed.
27. It is clarified that on the full amount being paid to the plaintiff as decreed in his favour under the judgment and decree, necessary security furnished by the defendants shall be released without any further delay.