JUDGMENT

C.B. Capoor, J. - This appeal has been preferred by Manohar Lal defendant No. 1 to a suit filed by the plaintiff respondent against him and his son Kailash Nath for recovery of a sum of Rs. 904/14/6 as principal and Rs. 316/'12/6 as interest on account of the price of goods supplied. During the pendency of the suit Manohar Lal died and his legal representatives have been brought on record.

2. The allegations made by the plaintiff respondent were that Manohar Lal and Kailash Nath constituted a joint Hindu family governed by the Mitakshara branch of Hindu Law and that Kailash Nath had purchased goods from the plaintiff firm for purposes of joint family business.

3. The suit was resisted by Manohar Lal and Kailash Nath mainly on the grounds that they did not purchase any goods from the plaintiff firm and in any case, were not liable to pay interest.

4. The courts below reached the conclusion that articles were purchased from the plaintiff firm and that both the defendants were liable to pay price thereof. That is a finding of fact and cannot be questioned in second appeal.

5. The trial court did not award any interest but on appeal the learned lower appellate court decreed the claim for interest also.

6. It has been contended on behalf of the appellant that the learned lower appellate court erred in awarding interest and that sub-Sec. (2) of Section 61 of the Indian Sale of Goods Act on which the said court relied was subject to the provisions of sub-Sec. (1) of Section 61 which subsection provided that interest could be recoverable only if there was a law providing for the award of interest. I am, however, unable to accede to that contention. Section 61 referred to above reads as below:

"(1) Nothing in the Act shall affect the right of the seller or the buyer to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover the money paid where the consideration for the payment of it has failed.

(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 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."

7. It will have been noticed that sub-Sec. (1) is in the nature of a saving section. It saves and preserves the right of a seller or a buyer to recover interest in a case where interest is recoverable under a law. There is nothing in Section 61 to indicate that sub-Sec. (2) was in the nature of an exception or proviso to sub-Sec. (1) or that the former is subject to the latter.

8. The expression "in the absence of a contract to the contrary" as used in sub-Sec. (2) indicates that if there is no contract between the parties for the payment of interest the provisions of the sub-section will come into play and be attracted. In other words, if there is no agreement between the parties for the payment of interest, it will be open to the court to award interest at a rate which it considers to be fit and proper. Clause (a) of the aforesaid subsection indicates the date from which interest can be made to run in a case filed by the seller and Cl. (b) indicates the date from which interest can be awarded in a suit filed by the buyer.

9. It has been contended on behalf of the appellant that a contract to the contrary within the meaning of sub-section (2) is a contract restricted to the rate of interest and to the period of time from which the interest is to be awarded. The contention, in my opinion, is devoid of substance. First of all, if there is an agreement for the payment of interest, the rate of interest is usually indicated and agreed upon. Unless there is a statute providing for the payment of interest at a paricularate on a