CIVIL REVISION No.1137 of 2004 Against the order dated 13.8.2004, passed by the learned Subordinate Judge IV, Begusarai, in Money No. 25 of 1993. M/S WAXOLEX ENTERPRISES, through its Proprietor Nitya Nand Singh, S/o Late Ramcharitara Singh, resident of Village Jugatpura, PS Matihani, District Begusarai ….Plaintiff- Petitioner Versus 1. STATE OF BIHAR through the Secretary, Department of Building Construction, Government of Bihar, Patna 2. The Chief Engineer, Building Construction Department, Bihar, Patna 3. The Executive Engineer, PWD, Building Construction Department, Central Division, Patna 4. The Collector, Begusarai ……… Defendant 1st Party - Opposite Party 1st Party 5. The Bihar State Small Industrial Corporation Ltd. (a Government of Bihar Undertaking) Indira Bhawan, Ramchariter Path through its Managing Director, Patna 6. The Bihar Emporium (An Unit of Bihar State Small Industries Corpn. Ltd.) Dak Bungalow Road, Patna Through its Manager …….. Defendants 2nd Party –Opp.party 2nd party – Opposite Parties ******** For the Petitioner : Mr. Shivnandan Rai, Senior Advocate Ms. Pravina Kumari, Advocate For the State : Mr. Shambhu Nath AC to Govt. Pleader no.X ******** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR S K Katriar, J. The plaintiff of Money Suit no.25 of 1993 (M/s Waxolex Enterprises v. The State of Bihar & Ors.), has preferred this civil revision application under section 115 of the Code of Civil Procedure, and challenges the order dated 13.8.2004, passed on its application for review of a portion of the judgment and decree passed in the suit. 2. A brief statement of facts essential for the disposal of this civil revision application may be indicated. The petitioner is, inter alia, engaged in the business of supply of goods. The State of Bihar had issued tender notice dated 15.9.1983, for purchase of Tarpaulin (Tripal). The petitioner submitted its tender. The State of Bihar placed orders with the petitioner for 2 supply of tarpaulin by order dated 29.9.83. The supplies were ultimately made in December 1985 – January 1986. The petitioner had submitted his bill dated 19.12.1985, for a sum of Rs.2,64,956.31p. The payments were not made leading to the aforesaid Money Suit no.25/93, which was decreed by judgment dated 30.4.2004. It was ordered that the petitioner (the plaintiff) shall be entitled to a sum of Rs.2,64,956.31p. plus 5% interest during the pendency of the suit, and a further interest @5% for the period 23.9.1992 to 30.11.1993. The petitioner (the plaintiff) felt aggrieved by this part of the order whereby interest at a low rate was granted to it leading to an application for review of the order. The same has been rejected by the impugned order, inter alia, on the ground that it is not a fit case for review the same, and the same can be achieved by the petitioner by moving a superior court. Hence this civil revision application. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that the petitioner is a small-time businessman and he did not receive payment of the supplies for a long time. He, therefore, instituted the suit on 21.12.93, which was decreed by judgment dated 30.4.2004. The State of Bihar did not prefer appeal against the same. No part of the judgment and decree has so far been paid to him. The petitioner now raises a grievance with respect to rate and the manner in which the interest has been paid. 4. It is evident that the supplies made in December 1985 and January 1986, and the bills were submitted on 19.12.1985. The payments have not been made to the petitioner inspite of the judgment and decree of the court in a situation where the State did not prefer any appeal against the same. In other words, 25 years have lapsed and the money decree has become elusive to the petitioner. This appears to us to be a high water-mark 3 of State oppression. Section 61 of the Sales of Goods Act 1930 reads as follows:- “61. Interest by way of damages and special damages.- (1) Nothing in this Act shall affect the right of the seller or the buyer to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover the money paid where the consideration for the payment of it has failed. (2) In the absence of a contract to the contrary, the court may award interest at such rate as it thinks fit on the amount of the price – (a) to the seller in a suit by him for the amount of the price – from the date of the tender of the goods or from the date on which the price was payable; (b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller – from the date on which the payment was made.” Section 34 of the Code of Civil Procedure reads as follows:- “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 relating 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 nationalized banks in relation to commercial transactions. Explanation I.- In this sub-section, “nationalized 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. 4 (2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.” Admittedly interest is sought to be realized on a commercial transaction. Therefore, in view of the proviso to section 34(1) of the Code of Civil Procedure, the petitioner is entitled to interest which may not exceed six per cent per annum or the rate at which money has been advanced by nationalized banks in relation to commercial transactions. The admitted position is that parties did not agree to any contractual rate of interest. Therefore, it is open to this Court to grant interest upto the rate of 6%, or at the rate of nationalized banks. The rate has been varying in nationalized banks and were much higher in 1985 and onwards, though it is at a lower rate for some past and today. Such dues are enough to drive a petty businessman like the petitioner to drive out of business. In the facts and circumstances of the case, we are of the view that interest of justice would be served if we direct for payment of interest @ 9 (nine) per centum from January 1986 till the payment is made to the petitioner on the principal amount. 5. In the result, this revision application is allowed. The order dated 13.8.2004, passed by the learned Subordinate Judge IV, Begusarai, in Money Suit No.25 of 1993, is accordingly modified. Therefore, the petitioner shall be entitled to costs of this civil revision application quantified at Rs.25,000/- (twenty five thousand). In view of the position that the State of Bihar has never challenged the judgment and decree in the suit which, except the interest part, has attained finality long time ago, the Secretary, Department of Building Construction Department, Govt. of Bihar, is hereby directed to ensure full payment of the amount including interest 5 and costs along with memo of calculation to the petitioner within a period of four months from today without the necessity of execution proceeding. Part of the order of the learned trial court whereby additional interest has been granted for the period 23.9.92 to 30.11.93, is hereby set aside. ( S K Katriar ) Patna High Court, Patna The 2nd of August 2010 NAFR/mrl