' MIAN BURHANUDDIN KHAN, J.-The aforementioned Civil Petitions for leave to appeal are directed against judgments and orders of the learned Peshawar High Court, all dated 15-2-1983 passed in Regular First Appeals Nos. 22, 23, 30, 213 and 214 of 1979. This order will dispose all those five C. P. L.
As. As the facts of these petitions are identical.
2. Briefly stated the facts are that petitioner is a Limited Company (Mill) named and styled as Swat Corn Products Limited ; while the respondents are foodgrain merchants with their seats of business at Par Hoti Mardan. It is alleged that they supplied malzo corn to the petitioner Mill from time to time but have not been paid the entire sale amount and as such they were forced to seek their claims by filing civil suits in the Court of the learned Senior Civil Judge, Malakand at Batkhela. The petitioner contested the claims of the respondents and raised various pleas in their defence. Before any evidence could be recorded the learned trial Court appointed Mr. Fazalur Rahman Azad, District Accounts Officer, Malakand under Order XXVI, rule 11, C. P. C. As Commissioner for the examination of the accounts of the parties, and to submit a report. The said Commissioner examined the record, and it was reported that although four chances were given to the petitioner to produce their record yet they failed to do so. The Commissioner, therefore, submitted his report Exh. C. W. 1/1 and was also examined in the Court in support of it as a Court-witness. The petitioners raised objections to the report of the Commissioner. Evidence was recorded and after hearing the learned counsel, the trial Court, per judgments and decrees all dated 28-12-1978 rejected the objections raised by the petitioners, and, consequently, passed the decree as follows :- {{TABLE TEXT}} C. P. L. As. Nos. 48, 49 and 50/R of 1983
(1) Rs, 34,520 with interest @ 13 % per annum
(ii) Rs, 49,022 -do-
(iii) Rs, 78,511-50 -do-
3. In these three petitions, while going through the Memorandum of Appeal, filed in the High Court, ground 5 (h) reads as under :- "that no case was made out by the respondent for payment of interest @ 13% per annum at any rate, it could not have been awarded on the amount claimed fraudulently."
' Almost the same questions of facts and law are involved in the remaining two C. P. L. As. Nos. 51 and 52/R/83. On going through the petitions before this Court, we find that various objections were taken e. g. Competency of the suit ; limitation and non-registration of the firm of the respondents, but no specific ground has been taken with regard to the rate of interest awarded by the courts below from the date of institution of the suits until the date of recovery of the decretal amount.
However, in the petitions before us the question with regard to interest has been formulated as follows :- "Whethet a plaintiff can claim interest on the alleged outstanding amount without there being a contract to this effect and whether a plaintiff can unilaterally fix the rate of interest ?
4. Ongoing through the impugned judgment of the High Court we find that no argument has been made before the learned High Court as regards the rate of interest as there is no discussion on it in the impugned judgment. Having dealt with the other points raised, the learned Judges mentioned in the concluding paragraph 20 of the judgment as follows :- "On record we not only find that the testimony of the plaintiff/respondents but also that of the Clerk who maintain the khatas regarding the sales made to the appellants on different rates, the price received and the outstanding..." .And the said paragraph concluded without any mention of an objection having been raised regarding the rate of interest. Whereas on these petitions being presented to this Court, notices were issued to the respondents as follows :- "Issue notice to the respondents only on the question of interest as decreed for the period before the filing of the suit."
6. The main contention of the learned counsel for the petitioner is that the respondent cannot claim interest without there being a contract to this effect and the plaintiff could not unilaterally fix the rate of interest. He referred to AIR 1938 P C 67 at page 70 wherein it has been held:- "The crucial question, however, is whether the Court has authority to allow interest for the period prior to the institution of the suit, and the solution of this question depends, not upon the Civil Procedure Code, but upon substantive law. Now, interest, for the period prior to the date of the suit may be awarded, if there is an agreement for the payment of interest at a fixed rate, or it is payable by the usage of trade having the force of law or under the provision of any substantive law entitling the plaintiff to recover interest, as for instance under section 80, Negotiable Instruments Act, 1981, the Court may award interest at the rate of six per cent per annum, when no rate of interest is specified in the promissory note or bill of exchange. There is in the present case neither usage nor any contract express or implied to justify the award of interest. Nor is interest payable by virtue of any provision of the law governing the case. Under the Interest Act 32 of 1839, the Court may allow interest to the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case was not a sum certain. The interest Act, however, contains a proviso that "interest shall be payable in all cases in which it is now payable by law". This proviso applies to cases in which the Court of equity exercises jurisdiction to allow interest. As observed by Lord Tolmin in (1929) A C 631.
In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction as for example, the non- performance of a contract of which equity can give specific performance..."
' The learned Judge further observed in the circumstances that the case, under discussion, would not attract the equitable jurisdiction of the Court and cannot fall under the purview of the proviso and that the learned Judges of the High Court have allowed interest by way of damages caused to the plaintiffs for the wrongful retention of their money ; and it was observed that there was a considerable divergence of judicial opinion in India on the question of whether the interest can be recovered as damages under section 73, Contract Act. It was further considered that where interest was not recoverable under the Interest Act, section 73, Contract Act gives statutory recognition to the general rule that in the event of a breach of a contract, the party who suffers by such a breach, is entitled to recover from the party, breaking the contract, compensation for any loss or damage thereby caused to him. In the conclusion of their judgment the learned Judges held that for the reasons stated_ above, the plaintiffs have not established their right to recover interest prior to the date of the suit, but 'they' must get interest under section 34, C. P. C. @ 6% per annum on the principal sum found to be due to them from the date of the institution of the suit to the date of the decree of the trial Court and on the sum so adjudged, further interest at the same rate until payment. Having gone through the judgment, we find that this is a case of breach of contract between the parties where the plaintiff had brought an action to recover a certain sum of money on account of the price of work done by them for the Railways.
6. The other case cited by the learned counsel is Messrs Haji M. Muhammad Zakaria & Co. v.
Province of West Pakistan (1) at 257: "Wherein a suit for damages for the breach of a contract for sale of goods the seller plaintiff claims as the measure of damages, the difference between the price, which he realised on the re-sale of the goods and the contract price ; the fact that the plaintiff has made a mistake in demanding damages on a wrong basis, is not a reason for the Court to refuse to set right the mistake by directing the damages to be calculated in the proper way unless the plaint is amended. For even without an amendment the Court is entitled to award the proper measure of damages if there is sufficient evidence on record.
' Learned counsel also referred to the written statements filed by the respondents in all these petitions where the word 'profit' has been used instead of 'interest' and as such they Court not be awarded 'interest' at any rate.
7. Learned counsel for the respondent/caveator also referred to section 61 of the Sale of Goods Act, 1930 which reads as follows S.
61. Interest by way of damages and special damages.
(1) ...
(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 tender of the goods or from the date on which the price was payable.
' The learned counsel further contended that in all these cases breach of contract was the cause of action, and, therefore, these would not be attracted to the facts of the present case. He referred to Edupuganti Pitchayya and others v. Gonugun:La Venkata Ranga Row (2) wherein it was held that :- "The word 'interest' has a basic meaning of advantage of profit. When used with reference to a loan, interest means the profit or advantage of the creditor which he gets by giving to another, the use of his money. If the contract stipulates that for the use of the creditor's money, a certain profit shall be payable to the creditor, that profit is interest, by whatever name it is called, or it called by no name at all."
' It was also observed in the cited case :- "the excess over the original advance is certainly the compensation which the creditor gets for lending his money for the particular period. The fact that it is not described in so many words as interest, will not alter its character. Halsbury's Laws of England. Vol.
28. S. 253 defines interest as 'interest' when considered in relation to money, denotes the return or consideration or compensation for the use or retention by one party of a sum of money or other property, belonging to another."
7. Having considered the arguments of the learned counsel for the parties, we are of the view that the seller can only recover interest when he is {{FOOT NOTE}}
(1) PLD 1964 (W. P.) Kar. 250 (2) AIR 1944 Mad. 243 {{FOOT NOTE}} ' in a position to recover the price. If he sues only for damages for breach of contract, he is not entitled to interest under the provisions of subsection (2) of section 61 of the Sale of Goods Act. The words 'from the date of tender of goods' appear to contemplate a case where delivery may be made at the option.
9. In the instant case we find that the respondents had supplied maizal corn to the petitioner Mill on specific dates and accounts and other relevant documents were discussed by the Courts below and they have come to the, conclusion that the petitioners were entitled to receive profit at the rates mentioned in the plaints, from the date of the suits till the date of the recovery the outstanding amount.
' In the light of above discussion we find no merits in these petitions. . All the five aforesaid petitions are dismissed.