1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Second Appeal No, 164 of 2009 Chandrakumar Nainwani v. Smt Tulsabai -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr J.M. Shamkuwar, Adv for appellant Mr S.T. Dhurvey, Adv for respondent Coram : A.P. Bhangale, J Dated : 1st Dec 2009 1. Heard learned counsel for the parties. This Court made order dated 30.7.2009 as under : “Issue notice for final disposal limited on the point of interest awarded, calling as to why by modifying the impugned decree the rate interest on suit amount should not be @ 12% PA. Returnable on 18.6.09.” 2. Learned trial Court rejected prayer for decree for specific performance of contract and partly allowed the suit by directing refund of earnest money of Rs. 75,000/-. This amount of Rs. 75,000/- was directed to carry annual interest at the rate 2 of 6% from the date of suit till realisation. Appeal carried by appellant-plaintiff was also dismissed and trial Court’s order was maintained. 3. Plainiff’s suit for grant of specific performance, as aforesaid, was dismissed by the trial Court and appeal preferred against it also failed. I have gone through the rival pleadings and both the judgments. There are concurrent findings of facts. No substantial question of law arises and as such appeal fails and is dismissed. 4. Learned counsel for appellant submits that interest is awarded from the date of suit i.e. 30.1.2001 while amount was paid on 28.8.1997. He submits that rate of interest awarded is meagre and it may be enhanced to 12% per annum. 5. Learned counsel for respondent was asked whether respondent would voluntarily pay higher interest as was expected under the notice. Learned counsel for respondent, upon instructions from respondent, expresses inability to accelerate rate of interest. He submits that respondent was a domestic help and it was a money-lending transaction. According to him, interest awarded is just and fair. 6. Section 34 of the Code of Civil Procedure, as far as relevant, reads thus: “34. Interest – (1) Where and in so far as a decree is for the payment of money, the Court may, in the 3 decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of 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 ..... 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) ....” 7. Plain reading of the aforesaid provision makes it 4 clear that the Court can award interest at such rate not exceeding six per cent per annum. It is where the transaction is a commercial one that the Court can exceed six per cent interest. In the present case, the transaction was not a commercial transaction. It is also where there was contractual rate that the Court can award more interest than 6 per cent. Upon perusal of agreement to sell, I find that no interest clause was incorporated in case defendant was required to pay back the amount of earnest money. Hence, in absence of transaction being commercial and in absence of contractual rate of interest coupled with the fact that defendant has expressed her inability, this Court is not inclined to interfere with the order directing amount of Rs. 75,000/- to carry interest at the rate of 6 per cent per annum from the date of suit till realisation. Limited issue on which notice was issued is answered accordingly. Judge. Hsj