The main legal point established in the judgment is that the determination of the constitutional question was necessary for the disposal of the case, and the court allowed the petition under Art.228 to withdraw the case to determine the validity of S.21A of the Banking Regulations Act.

1. The first defendant in O.S.251/83 is the petitioner.

2. The suit is for recovery of Rs. 7,94,857/- with 15% interest, instituted by the respondent. The petitioner in his defence inter alia has contended that the interest charged on the transactions mentioned in the plaint, is excessive and as such attract the provisions of the Cochin Usurious Loans Act, for short the 'Loans Act'.

3. The respondent plaintiff took the stand that, assuming 'Loans Act' applies to the transactions, based on which the suit is instituted, the court was incompetent to reopen the transactions with a view to scale down the interest, in view of the provisions contained in S.21A of the Banking Regulations Act of 1949, for short the 'Regulation Act'.

4. The petitioner thereupon presented an application under S.113 C.P.C. for getting the following questions referred to this court, for our opinion:.

"(a) Whether S.21-A of the Banking Regulation Act is ultravires and violative of Art.14 of the Constitution of India for the reasons stated in the accompanying affidavit?

(b) Whether the notification issued under S.1(3) of the Usurious Loans Act 1918 and under S.1(4) of the Cochin Usurious Loans Act, 1111 M.,E. are legal and valid?".

The second question need not be dealt with in these proceedings because even according to the petitioner, the notification which declares that the Loans Act shall not apply to loans given by all categories of banks, is only prospective in operation and as such has no application here. The transactions in question are of a period prior to 22nd day of May, 1979, the date on which the above notification came into force.

5. Regarding first question, the decision of the Andhra Pradesh High Court (A.I.R. 1986 A.P. 291) supports the argument of the petitioner that the section "is ultravires and violative of Art.14 of the Constitution".

6. The respondent opposed the application. According to it the section is is valid. That means, 'no circumstances have been made out for referring the the case to High Court'.

7. Accepting the above contention, the court below, by the order under challenge, dismissed the application. Hence the revision. The petitioner has also filed an application under Art.228 of the Constitution of India, for the withdrawal of the case to this court for the purpose of determining the question of law referred to above.

8. In view of the ruling of the Andhra Pradesh High Court, in the matter of State Bank of India, Eluru, the question sought to be referred deserves consideration by the High Court. If that be so, the reference sought for should have been granted by the court below. In the light of the principles enunciated by the Supreme Court in Raja Ganga Pratap Singh v. Allahabad Bank Ltd. (A.I.R. 1958 S.C. 293), the question raised is a substantial question of law as to the interpretation of the Constitution of India and hence the case in any event, requires to be withdrawn to this court in exercise of the power under Art.228 of the Constitution for determining the question.

9. The above position notwithstanding the learned counsel for the respondent Mr. Balagangadhara Menon contended that neither the reference application nor the petition under Art.228 is maintainable. The points highlighted by Mr. Menon in this regard, are:

(1) The object with which S.113 C.P.C. is enacted is to enable subordinate courts to obtain in any non appealable cases, the views of the High Court on a question of law well in advance, thereby avoiding Commision of any errors. To put it differently, he argues, under S.113 C.P.C. no reference shall be had unless it be, that the decree that will be passed in the suit is a non-appealable one, the reason being that in appealable cases, possible errors can be corrected by the appellate court.

(2) A Single Judge of the High Court has no power to hear and dispose of a petition under Art.228 of tie Constitution of India. The said' power, going by the Provisions of the Kerala High Court Act, 1958. for sh