S.K. Ray, J.
1. This appeal is by the plaintiff whose suit has been decreed in part.
2. Plaintiff No. 1 is a registered partnership firm and plaintiffs 2 to 5 are its partners. Defendant No. 1 who is respondent No. 1 in this appeal is a co-operative society having a press of its own. It undertakes publishing work for which it used to purchase paper on credit from the plaintiff firm. Defendant No. 3 is the President, defendant No. 4 is the Secretary and defendant No. 5 is the Manager of the Society (defendant No. 1). Defendant No. 1 is said to have agreed to pay the price of the paper received from the plaintiff within a month of its purchase failing which it was liable to pay interest at the rate of 6 per cent. per annum on the said amount. According to the aforesaid contract and understanding with the plaintiff the defendant No. 1 purchased paper on credit from the former between 29-11-63 and 10-8-64 the price of which amounted to Rs. 20,851.10 P. While purchasing, defendant No. 1 agreed to pay the price within a month from the date of purchase and that in default of such payment, it will be liable to pay interest at the rate of 6 per cent. per annum Defendant No. 1 was able to pay only Rs. 15,595.50 P. leaving balance of Rs. 5,255-60 outstanding. On these allegations the plaintiff filed the present suit for a decree of Rs. 5,910.60 which comprised of the balance price of Rs. 5,255.60 plus interest at the rate of 6 per cent. per annum from 28-1-65 to 20-2-67 amounting to Rs. 655. Defendant No. 2 was impleaded only with the object of getting an order from the court directing him to take steps for compelling the defendant No. 1 to pay. The plaintiff also claimed both pendente lite and future interests at the same rate, i.e., 6 per cent. per annum from the date of filing of the suit till recovery.
3. Before filing the suit the plaintiff had given suit notice to defendant No. 1 as well as to defendant No 2 on 5-8-66 under Section 127, Co-operative Societies Act, 1962 (hereinafter referred to as the 'Act'). This notice was received by defendant No. 1 on 8-8-66. So far as defendant No. 2 is concerned the acknowledgment due has not yet been received back after service of notice on him. Defendant No. 1 replied on 27-9-66 admitting the plaintiff's claim (Vide Ext. 4).
4. Defendant No. 1 in his written statement admits the purchase and the amount outstanding against him as claimed by the plaintiff, but denies that there was any contract for payment of interest in case of default of payment within a month of the date of purchase. Hence he denies the liability to pay interest and has prayed for being allowed to pay the principal amount in instalments. He, however, has simultaneously taken some technical pleas, like the suit not being maintainable and also being barred by limitation.
5. The trial court decreed the suit on admission against defendant No. 1 for a sum of Rs. 5,255.60 with proportionate costs, but dismissed it on contest against defendant No. 2 and ex parte against the other defendants. He, however, directed the plaintiff to pay costs to defendant No. 2 in the suit as he had been unnecessarily impleaded. He also granted five equal annual instalments to pay the decretal dues, the first instalment commencing from 1st of April, 1968.
6. Mr. Mukherjee for the plaintiff-appellant has raised only two points. The first one is that the court should have granted interest even though it found that there was no contract for the same. The second contention is that the plaintiff should not have been saddled with costs against defendant No. 2 who had been impleaded not because any relief was claimed against him but for being directed to compel the co-operative society of which he was the Registrar in making payment. The contesting defendant, however, urges one point that the suit is not maintainable.
7. With regard to the first contention raised by Mr. Mukherjee reliance is placed on Section 61(2) of the IndianSale of Goods Act. Sub-section (2) of Section 61 of that Act runs as follows:--
'61. (1) x x x (2) In the absence of a contract tothe contrary the court may award interest at such rate at it thinks fit on theamount 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.'
The court below has disbelieved the plaintiff's case of oral contract for payment of interest, even though there is no counter evidence led on the point by the contesting defendant. The provisions of law extracted above, however, empower the court to grant interest, even though there is no contract to the contrary, which would run from the date of tender of the goods or from the date on which the price was payable. The plaintiff, however, has claimed interest from 28-1-65 till 20-2-67, that is to say, for the period prior to the suit. That was the interest which the court could grant even though there was no contract for payment of interest. But that power of the court is discretionary which the court has refused to exercise. But such discretion has to be exercised judicially, not arbitrarily. The trial court probably taking into consideration that the defendant was a co-operative society and that it did not take untenable pleas on merits of the case but fairly admitted its dues to the plaintiff,refused the interest claimed in the suit. I do not like to interfere in the exercise of this discretion in refusing interest prior to suit, but I do not see any justification for the court in refusing further interest. Section 34 of the Civil Procedure Code empowers the court in cases where it passes a decree for payment of money to grant interest on the principal sum adjudged for payment under the decree at such rate as the court deems reasonable from the date of suit to the date of decree and such future interest not exceeding 6 per centum per annum, as the court deems reasonable, on such principal sum from the date of decree till the date of payment. I think it should have been judicious for the trial court when it refused to grant interest prior to the suit to grant future interest from the date of suit till realisation. I would, therefore, direct that the defendant No. 1 shall pay interest at the rate of 6 per cent. per annum on the principal sum adjudged, namely, on the sum of Rs. 5,255.60 from the date of the suit, i.e. 18-3-67 till the date of payment.
8. I also do not see any reason to grant costs to respondent No. 2. There was no relief claimed in the plaint against him. The only purpose for impleading respondent No. 2 was that he being in a controlling position as Registrar, should be directed by the court to see that the co-operative society, namely defendant No. 1, complies with the decision of the court C.J. makes prompt payment. In my opinion, the grant of costs to respondent No. 2 against the plaintiff-appellant was wrong. Awarding of such costs is, therefore cancelled.
The decree is, accordingly, modified to the aforesaid extent, in the matter of interest as well as in the matter of costs granted to respondent No. 2.
9. The learned counsel for the respondent No. 1, however, contends that the suit is not maintainable inasmuch as the Secretary of the Utkal Rastrabhasa Prachar Co-operative Press and Publishing Society Ltd. has not been impleaded on behalf of such society, because by Rule 37 of the Orissa Co-operative Societies Rules, 1965 (hereinafter referred to as the 'Rules') it is the Secretary alone who shall be the officer to sue or to be sued on behalf of the society. The second ground of non-maintainability of the suit is that no notice under Section 127 of the Orissa Co-operative Societies Act, 1962 has been served on the Registrar.
Sub-rule (1) of Rule 37 of the Rules provides that-
'The Secretary shall be the officer to sue or to be sued on behalf of the society............'
In the plaint, the society was impleaded as defendant No. 1 and Radhanath Pandit, Secretary of the Society was impleaded as its Secretary. In the appeal memo, society was impleaded as respondent No. 1 and Radhanath Pandit, the Secretary of the society as respondent No. 4 and since Radhanath Pandit had ceased to be the Secretary and was succeeded by one G. N. Sahu, by the date of suit, the Latter was also impleaded as defendant No. 5 described as Manager of the Society, defendant No. 1. In appeal memo defendants 1, 4 and 5 were respectively impleaded as respondents 1, 4 and 5. Consequent upon Mr. Kar appearing for the society represented by the new Secretary Shri G. N. Sahu, Mr. Mukherjee filed an application for amendment of the cause title of the memo of appeal and that application has been allowed and respondent No. 1 has been described as the Society represented by its Secretary G. N. Sahu and respondent No. 5 has been described as G. N. Sahu, Secretary of respondent No, 1 and the name of Radhanath Pandit has been deleted in the memo of appeal. The question is whether in view of the description of defendants 1 and 4 in the plaint as above, the suit cannot be said to be properly constituted and hence not maintainable. In my opinion, since Secretary as such had been impleaded as defendant No. 4, the mere fact that the society as defendant No. 1 had not been described as being represented by defendant No. 4 would not affect the maintainability of the suit, because by implication of Secretary, as such separately, Rule 37 of the rules must be deemed to have been complied with. At any rate, even if the manner of description of defendants 1 and 4 can only amount to mis-description, would not be a case of non-impleading of the secretary as required by Rule 37 of the Rules. Rule 37 is nothing but a rule of procedure and it is well known that all rules of procedure are intended to be handmaids to the administration of justice and not to be the hindrance to it. In fact, when the plaint was filed the Secretary was impleaded as Manager of defendant No. 1, the society, in addition to the Society being impleaded separately as another defendant without being shown to be represented by the then Secretary and as a matter of abundant caution both the outgoing and incoming secretaries had also been impleaded. The suit cannot be held to be non-maintainable in the aforesaid circumstances. However, at the appellate stage by the amendment sought for and allowed, the whole matter has been regularised and brought in accord with the proper description and what was mis-description at one time has now been corrected to a proper description. Though the amendment was carried out in the memo of appeal at the appellate stage it must be deemed by such amendment that the suit was instituted in the amended names on the date on which it was originally instituted. This contention, therefore, must be negatived.
It is next contended that the suit is not maintainable due to non-compliance with the provisions of Section 127 of the Act. This section prohibits institution of a suit without notice, only when it is in respect of any act touching the constitution, management or business of the society. The present suit is one for recovery of price of goods supplied to the society. The controversy is not one which can be said to be in respect of an act touching the constitution, management or business of the society. This section has, therefore, no application. This point, therefore, fails.
10. In result, for the aforesaid reasons the appeal succeeds, the decree is modified to the extent of awarding interest at the rate of six per cent. on the principal sum adjudged as payable by defendant No. 1 to the plaintiff from 18-3-67, the date of institution of the suit, till realisation and setting aside that part of the decree whereby cost has been awarded by the court below to respondent No. 2 against the plaintiff. Other portions of the decree are maintained. In the circumstances of the case, there will be no order for costs of this court.
Appeal allowed without costs.