F. A. No. 57 of 1992

26th April, 1993.

Petitioner Counsel: B. M. Agarwal,
Respondent Counsel: Joydeep Chatterji holding, for S.C. Bora, (for Nos. 1 and 2),

Cases Cited:
(1992) 3 Bom CR 387 [Para 8]

JUDGMENT

DESHMUKH, J. :-This first appeal raises a point of interest, and, importance.

2. A suit was filed for the recovery of Loan advance to the defendants 1 and 2 for which the defendants 2 and 3 are the guarantors.

3. The suit of the plaintiff-bank is decree with costs. The defendants therein are directed to pay the amount due in instalments with future interest at the rate of 6 per cent p.a. from the date of the suit.

4. Even though the suit is decreed, the plaintiff bank aggrieved by the rate of interest as awarded is at the rate of 6 per cent p.a. this first appeal challenging the decree. Shri B.M. Agarwal, learned counsel for the plaintiff Bank, has contended that the rate of interest granted by the learned trial Judge is contrary to the provisions of Section 34 of C.P.C. as the loan advanced was for the commercial purpose and as such the rate of interest should have been to the extent of 15 per cent p.a. is demanded by the bank. In the contrary, Shri Joydeep Chatterji, learned counsel for the respondents contended that the loan was granted for the professional purpose i.e. for the purpose of hospital and for purchasing machinery and equipments for the construction of hospital.

5. From the arguments advanced before us, the only point which is required to be considered is : Whether the plaintiff-bank is entitled for future interest at the rate more than 6 per cent per annum ?

6. There is no dispute that the loan was advanced by the Bank for the purpose of construction of hospital on the agreed terms and conditions of the bank and the defendants agreed to hypothecate furniture and other surgical equipments of the hospital towards the loan.

7. The learned trial Judge, after considering the arguments advanced before him, has found that as per the provisions of Section 34, C.P.C. only in case of commercial transactions, future interest can be granted as claimed by the Bank. This professional loan cannot be said to be a loan for commercial purpose. So, the future interest at the rate of 6 per cent per annum is granted.

8. Shri B.M. Agarwal, learned counsel contended that the loan granted in favour of the defendant No. 1 was for commercial purpose and interest should have been granted at the rate of 15 per cent per annum as demanded by the plaintiff bank. For this purpose he relied upon the decision of the Division Bench of this court in Bank of Baroda v. M/s. Perchem Industries (reported in 1992 (3) Bom CR 387).

9. In that case, the loan was admittedly granted for establishment of a factory and for purchase and installation of machinery. While considering the claim of the bank for recovery of the loan granted for the factory, this court rightly treated that loan was for the commercial purpose, and granted the interest in excess of 6 per cent as demanded by the Bank in that case.

10. We are unable to appreciate as to how the ratio laid down in that case applies in the present case. On the basis of admitted facts, the loan in that case was granted for establishment of factory and for purchase and installation of machinery. In the present case the loan is admittedly granted for the purpose of construction of hospital.

11. For determining the interest it is necessary to consider the provisions of Section 34, C.P.C. which reads as under :

"34. (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 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 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 contractual rate, the rate of which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I. - In this sub-section , 'Nationalised 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."

12. The proviso to sub-section (1) of Section 34 provides, therefore, that whether the liability in relation to the sums adjudged had arisen out of a commercial transaction, the rate of further interest may exceed 6 p.c. p.a., 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 specifies what is the meaning of 'nationalised bank', while Explanation II provides that for the purpose of Section 34, C.P.C., a transaction is a commercial transaction if it is connected with the industry, trade or business of the party incurring the liability.

13. The question which, therefore, falls for consideration is whether the loan advanced for the construction of hospital can

be termed as a commercial transaction, and, whether such commercial transaction is connected with the industry, trade or business or the party concerned.

The words, "commercial transaction" 'industry', 'trade', as well as 'business' are not defined, though what is meant by "nationalised bank" is provided for in Explanation I.

The word 'commercial' is defined in the Concise Oxford Dictionary, New Edition for the 1990s, at page 227. The word 'commercial' is defined as "having profit as a primary aim rather them artistic etc. value". So also, in Stroud's Judicial Dictionary, Fifth Edition, Volume 1 (A to C), the word "commercial action" is stated to include, "any cause arising out of the ordinary transactions of merchants and traders", and further" any cause relating to the construction of mercantile document, etc."

15. The word 'industry' is defined as "a branch of trade or manufacture, trade and manufacture collectively."(Concise Oxford Dictionary, New Edition for the 1990s, page 604).

16. The word 'trade' is defined as "buying and selling" (Concise Oxford Dictionary, ibid, page 1293). In Stroud's Judicial Dictionary, ibid, it is stated that, "in ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may mean a skilled craft. Although it is often used in contrast with a profession." Word 'Trade' is defined as "the business of selling with a view to profit goods which the trader has either manufactured or himself purchased."(Osborn's Concise Law Dictionary Sixth Edition by John Burke).

The word 'business' is defined as "one's regular occupation, profession, or trade" (Concise Oxford Dictionary, ibid, page 151). Similarly, the word "businessman" is also defined as" a man or workman engaged in trade or commerce, esp. at a senior level."(supra). In Stroud's Judicial Dictionary, ibid, the word 'business' is described as "having more extensive meaning than the word 'trade'. It has further been clarified that ordinarily speaking, "business is synonimous with trade". It is also defined as "anything which occupies the time and attention and labour of a man, for the purpose of profit, is 'business."

18. Having regard to these definitions of the words, "commercial transactions", 'industry', 'trade', and 'business', we are unable to appreciate as to how the hospital can be said to be profit-oriented, unless there is evidence to hold it so. The construction of a hospital can be service-oriented and not necessarily profit-oriented.

19. In this context, we may also consider the meaning of the word 'profession'. 'Profession' is defined as "a vocation or calling, esp. one that involves some branch of advanced learning or science (the medical profession)". The ward 'professional' is defined as "of or belonging to or connected with a profession having or showing the skill of a professional."(Oxford Dictionary, ibid, p. 952). In Stroud's Judicial Dictionary, ibid, while considering the word 'profession', it is mentioned that, "the business of a stockbroker is not a profession." It is further mentioned, "I have yet to learn that a manager or managing director is carrying on a 'profession or vocation'.

20. In view of this, 'profession' will have to be treated as different from 'industry', 'trade', and 'business'. There is a clear distinction between the profession on one hand, and industry, trade and business on the other. While dealing with the 'commercial transactions" for the purpose of Section 34, C.P.C. the legislature has not used the word 'profession' along with the words, 'industry' 'trade', or 'business'. The commercial transactions which are strictly connected with the industry, trade or business alone are included for the purposes of Section 34, C.P.C. as provided in Explanation II. Though the 'commercial transaction" is inclusive of "industry, trade and business", but it is exclusive of "profession". The fact that the Legislature has not included the word 'profession' along with the words "industry, trade and business" to specify the "commercial transaction" cannot be ignored. The proviso to Section 34, C.P.C. will, therefore, not govern the cases where the

loan is advanced for the 'profession' or for "professional transactions".

In our opinion, the words "commercial transaction" do not include the "profession" or "professional transaction."

22. We, therefore, find that the learned trial Judge was right in holding in the absence of any evidence to that effect that the present loan is a professional loan, and cannot be termed as a commercial transaction. Awarding future interest at the rate of 6 p.c. p.a. cannot be said to be in contravention of the provisions of Section 34, C.P.C.

23. In the result, the appeal fails and the same is dismissed. There shall be no order as to costs.

Appeal Dismissed