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TMI Blog1982 (10) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... d payable by the company as secured creditor in respect of the properties mentioned in Annexure A to the mortgage. deed dated 9th February, 1972. The learned Judge thereafter directed payment of the said amount by the Official Liquidator, who was in possession of the mortgaged properties of the petitioning creditor which was securer) for its claim out of the sale proceeds of the secured properties. The Official Liquidator was directed by the learned Judge to pay on account of principal amount, interest, insurance changes and consultant fees up to August, 1977. The subsequent interest has not been directed to be paid. This is the bone of contention in this appeal. 2. It appears that the petition for winding up was presented in Sept., 1976 and the order for winding up was made On Sept 6, 1977. Meanwhile West Bengal Financial Corporation which indisputably was a secured creditor under a mortgage deed made an application for examination pro interessee sue of its right in August, 1977. Thereafter in February, 1973 the present application was made by the petitioner for payment of its dues and the order was made, as mentioned hereinbefore in December, 1978. 3. The learned Judge did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he 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. (2) Where such a decree is silent with reaped 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 therefor shall not lie : 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 relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the word 'may' in Section 8 of that Act indicated that the Court was not bound to exercise at least one of the powers and might well not exercise any of the powers at all: the language as it stood could only mean this, that the Court had the discretion to exercise all or any or none of the specified powers. Then with reference to Rule 11 of Order XXXIV of the Civil P. C. . it was observed by Sulaiman, J. that that provision also gave a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest were concerned; it was no longer absolutely obligatory on the Courts o decree interest at the contractual rate up to the date of redemption in all circumstances, if there was no question of the rate being penal, excessive or substantially unfair within the meaning of he Usurious Loans Act, 1918. (6) An attempt was made before us to indicate that there was a conflict between the decision of the Judicial Committee and that of the Federal Court and we were invited to decide which of the two decisions would be binding on this Court at this stage. In our view, there is no real or substantial conflict so far as the question of allowing inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the learned trial Judge, But, in any case, in the view we have taken we need not decide this question whether under the law his submissions are to be taken as made on behalf of the respondent. He drew our attention to a decision of the Judicial Committee in the case of Sourendra Mohan Sinha v. Hari Prosad Sinha. AIR 1925 PC 280 in aid of his submission that under Section 34. the Court has absolute discretion for ertwiting interest from any date that the Court thought it fit. The observations of the said decision were considered by the several decisions of the Privv Council, viz.. in the case of Kusum Kumari v. Devi Prosad, 63 Ind App 114 a P. 121 : (AIR 1936 PC 63). Later, decision of the Judicial Committee was considered by the Division Bench of this Court, which we have referred to hereinbefore. The Division Bench observed that according to the Judicial Committee, the mortgagee was entitled to interest pendente lite and according to the decision of the Federal Court the discretion was given to Court to the extent to which such interest should be allowed. The Division Bench of this Court observe^ that in their Lordships' view the Court was bound to decree pendente lite i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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