IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: October 14, 2010 (i) C.R.No.5168 of 1999 Punjab National Bank, Gharaunda, District Karnal ...Petitioner Versus Bhola Ram and others ....Respondents (ii) C.R.No.5352 of 1999 Punjab National Bank, Gharaunda, District Karnal ...Petitioner Versus Nain Singh and another ..Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Shri H.R. Bansal, Advocate, for the petitioner. None for the respondents. HEMANT GUPTA, J. This order shall dispose of C.R.No.5168 of 1999 and C.R.No.5352 of 1999 directed against the orders passed by the Prescribed Authority on 09.11.1998 and 11.09.1998 respectively. By such orders, the Prescribed Authority has passed an order granting the principal amount due to the Bank, but restricted the future interest at 10% from the date of filing of the application. C.R.No.5168 of 1999 The petitioner is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The petitioner in Civil Revision No. 5168 of 1999 granted term loan facility of Rs.1,30,000/- repayable in 18 half yearly installments with interest at the rate of 3.50% over the Reserve Bank of India rate with a minimum of 15.5% per annum. By way of collateral security, the respondents mortgaged their land vide mortgage deed dated 12.11.1992 and also executed Priority Sector Term Loan Agreement dated 13.11.1992. Since there was default in making the payments of installments as agreed, the petitioner filed an application before the Prescribed Authority under the Haryana Agricultural Credit Operations and Miscellaneous Provisions (Banks) Act, 1973 (for short ‘the Act’). The Prescribed Authority has allowed the application by granting benefit of principal amount claimed by the Bank, but future interest at the rate of 10% as against the contractual rate of interest i.e. 3.50% over the Reserve Bank of India rate with a minimum of 15.5% per annum. Since the petitioner was not granted contractual rate of interest, the Bank has challenged the aforesaid orders before this Court by way of the present revision petitions. Section 2(b) of the Act defines “agriculturist” means a person, who is engaged in agriculture; whereas Section 2(f) of the Act defines “financial assistance” to mean assistance granted by ay of loans, advances, guarantee or otherwise for agricultural purpose. Section 2(d) of the Act defines “Bank” and the petitioner is one of the Banks falling under clause (iv) of the said Section. In terms of Sections 3 and 4 of the Act, an agriculturist can create charge on the movable and immovable property in favour of a Bank. Sections 5 and 6 of the Act give priority to the mortgage credit by a Bank in respect of a financial assistance given to an 2 C.R.No.5168 of 1999 agriculturist over the charge or mortgage created in favour of Government or a Cooperative Society. Section 7 of the Act contemplates that till such time, the financial assistance continues to be outstanding against an agriculturist, lease or tenancy rights on such land cannot be created without prior permission in writing of the Bank and is void. It is Section 8 of the Act, which enables a Bank to obtain an order against any agriculturist for directing the payment of any sum due to the Bank on account of financial assistance availed of by the agriculturist by the sale of any land or any interest therein upon which the payment of such money is charged or mortgaged. Section 8 of the Act reads as under : “8. (1) An official of the State Government notified by the State Government as the prescribed authority for the purpose of this section may, on the application of a bank, make an order against any agriculturist or his heir or legal representative, directing the payment of any sum due to the bank on account of financial assistance availed of by the agriculturist, by the sale of any land or any interest therein upon which the payment of such money is charged or mortgaged : Provided that no order shall be made by the prescribed authority under this section for the sale of any land or any interest therein or any other immovable property upon which the payment of money is charged or mortgaged unless the agriculturist or the heir or legal representative of the agriculturist as the case may be, has been served with a notice by the prescribed authority calling upon him to pay the amounts due. (2) Every order passed by the prescribed authority under subsection (1) shall be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court. 8A. (1) Where any amount of financial assistance is granted by a bank to an agriculturist and the agriculturist fails to pay the amount together with interest on the due date, then without prejudice to the other provisions of this Act, the local principal officer of the bank, by whatever name called, may forward to the Collector a certificate in the manner prescribed, specifying the amount due from the agriculturist. 3 C.R.No.5168 of 1999 (2) The certificate referred to in sub-section (1) may be forwarded to the Collector within a period of three years from the date when the amount specified in the certificate fell due. (3) On the receipt of the certificate, the Collector shall proceed to recover from the agriculturist, the amount specified therein as arrears of land revenue.” Section 9 of the Act authorizes bank to purchase immoveable property of the agriculturist, if no person has offered to purchase it for a price, which is sufficient to pay the bank the moneys due to it. I have gone through the provisions of the Act carefully and also orders passed by the Prescribed Authority. There is no provision in the Act, which has the effect of modifying or varying the terms of the mortgage. In fact, the charge or mortgage in favour of a Bank, who has granted financial assistance to an agriculturist, has a priority over the charge and interest in favour of a Cooperative Society or the State Government. The provision recognizes the document of mortgage as a binding document between the parties. Therefore, any sum payable under such document is binding on the parties. Though the provisions of the Act do not provide that the provisions of the Code of Civil Procedure are applicable in respect of the proceedings before the Prescribed Authority, but while considering the claim of the Bank, the equitable principles contained in Order 34 of the Code of Civil Procedure, can be extended in respect of the proceedings pending before the Prescribed Authority. Such provisions are fair and reasonable so as to apply the principles of Order 34 CPC for grant of future interest. The Hon’ble Supreme Court in N.M. Veerappa v. Canara Bank and others, (1998)2 Supreme Court Cases 317, has held that Section 34 of the Code of Civil Procedure applies to simple money decree and payment of interest in such suits, whereas Order 34 Rule 11 deals with the mortgage suit and payment of 4 C.R.No.5168 of 1999 interest. The Court considered the amendments carried out in the Code of Civil Procedure in the year 1929 and 1956 and held that it is no longer necessary to award contractual rate of interest after filing of the suit. It was held to the following effect:- “(c) It is no longer obligatory to award the contractual rate after date of suit and up to date fixed for redemption as above stated even though there was no question of the contractual rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918. (d) Even if the Court otherwise wants to award interest, the position after the 1929 and 1956 Amendments is that the Court has discretion to fix interest from date of suit under Order 34 Rule 11 (a)(i) upto date fixed for payment in the preliminary decree, the same rate agreed in the contract, or, if no rate is so fixed, such rate as the Court deems reasonable - on the principal amount found or declared due on the mortgager is concerned. (e) The Court has also power to award from date of suit under Order 34 Rule 11 (a) (iii) a rate of interest on costs, charges and expenses as per the contract rate or failing such rate, at a rate no exceeding 6%. This is the position of the discretionary power of the Court, from date of suit upto date fixed in the preliminary decree as the date for payment. (f) Again under Order 34 Rule 11 (b) so far as the period after the date fixed for payment is concerned, the Court, even if it wants to exercise its discretion to award interest upto date of realisation or actual payment, on the aggregate sums specified in clause (a) of Order 34 Rule 11, could award interest at such rate as it deemed reasonable.” Keeping in view the principle (d) enumerated above, the Court has the discretion to fix interest from the date of suit upto the date fixed for payment in the preliminary decree at the same rate agreed in the contract, or, if no rate is so fixed, such rate as the Court deems reasonable. Since the rate of interest is fixed in the agreement, the Prescribed Authority was bound to grant such rate of interest alone. Therefore, the finding recorded by the Prescribed Authority, 5 C.R.No.5168 of 1999 granting interest @ 10% from the date of decree till realization, cannot be justified in law. However, in the facts of the present case, the Prescribed Authority has granted such rate of interest in the year 1998. Therefore, even though the order passed by the Prescribed Authority in granting interest @ 10% is against the terms of the contract, but I do not find any ground to interfere in exercise of the revisional jurisdiction of this Court, at this stage. Hence, the present petitions are dismissed. October 14, 2010 (HEMANT GUPTA) vimal /ds JUDGE 6