Shri Naresh Jain And Anr. vs Smt. Indu Rani Jain
2006 Latest Caselaw 1015 Del

JUDGMENT

Swatanter Kumar, J.

1. Smt. Indu Rani Jain filed a suit for recovery of Rs. 3,00,350/- with interest @ 15% p.a pendentelite and future with costs of the suit. The suit of the plaintiff was decreed vide judgment and decree dated 1.10.03 passed by the learned Additional District Jude, Delhi who have passed a decree of Rs. 2,97,050/- with interest @ 15% p.a. The defendants in the suit have challenged the correctness of the decree before this Court in the present Regular First Appeal.

2. According to the respondent in the appeal, the appellant were carrying on the business of gold and diamond Jewellery under the name and style of M/s Arihant Jewels, Delhi. Appellant No. 1 is the propereitor of appellant No. 2. The respondent had advanced a loan of Rs. 1,95000/- to the appellant on 28.7.99. The loan was agreed to be returned and repaid with interest @ 15% p.a. The loan was not returned despite repeated requests and reminders. The respondent filed a suit for recovery with the following details:

The break up of the amount claimed by the plaintiff against the defendants given in para 2 of the plaint is as under :-

  i)   Principal Amount :       Rs.  1,95,000/-
ii)  Interest till filing :   Rs.  1,02,050/-
     of the suit 
iii) Notice fees and other :      Rs. 3,300/- 
     Charges                  ---------------- 
                                Rs. 3,00,50/-
                             ------------------ 
 

3. Appellant contested the said suit. He took up the plea that the suit was barred by time and was also not maintainable in view of Punjab Relief of Indebtedness Act, 1934. Besides taking these objections of law even in relation to jurisdiction of the Court, it was stated that the loan of Rs. 1,95,000/- was taken but liability to repay the same was denied on the ground that the respondent had taken Jewellery to the tune of Rs. 2,30,785/- vide the bill dated 11.10.2000 on which even the Sales Tax was paid by the appellant as such nothing was payable to the respondent, in fact, a sum of Rs. 15,911/- was due on the respondent. Keeping in view the above pleadings of the parties, the Trial Court framed the following issues on 27.3.03:

i) Whether the present suit is barred by time OPD

ii) Whether this suit is barred under the provisions of the Punjab Relief of Indebtedness Act, 1934 as alleged in para-4 of preliminary objections in W.S. OPD

iii) Whether the plaintiff is not entitled to the suit amount in view of facts alleged in para 5 of the preliminary objections of the W.S. OPD.

iv) Relief.

4. As already noticed, the Trial Court after discussing the evidence led by the parties, documentary and oral, answered the issues in favor of the respondent and against the appellant. It may be noticed that the plaintiff and the defendant in the suit had only examined themselves and has produced and proved on record certain documents. The Trial Court while recording findings on Issue No. 2 against the appellant held as under:

The plea of the defendants that the present suit is barred under the provisions of the Punjab Relief of Indebtedness Act, 1934. According to the defendants the plaintiff is a money lender and she has not obtained the requisite license to work as a money lender. To substantiate their said objections, DW-1 Naresh Jain who is the sole proprietor of defendant No. 2 firm has deposed in para 2 of his affidavit Ex.D-1 as follows:

The plaintiff is a money lender lending lending money to various persons on interest. To my knowledge, the plaintiff has not obtained any license to act as a money lender which I have been told is necessary. On 28th July, 1999 the plaintiff lent an amount of Rs. 1,95,000/- to me in the name of defendant No. 2 which was repayable with interest @ 15% p.a. Interest for the period up to 31st March, 2000 accrued to the tune of Rs. 19,874/-. Thus the total amount due to the plaintiff on 1st April, 2000 was Rs. 2,,14,874/- However, DW-1 Naresh Jain could not withstand the test of cross- examination with regard to the above mentioned testimony on the point of his objection under the Punjab Relief of Indebtedness Act DW-1 could not tell the name of any other person to whom the plaintiff might had given money on loan. He has testified that he knows the plaintiff for last 10-12 years but he never took any loan from her prior to the loan transaction of the present case. It is evident from the above that the plaintiff is not engaged in the business of money lending and therefore she was not required to obtain any license for giving stray friendly loan, like the one given by her to the defendants in the present case. In my opinion, the objection taken by the defendants against the maintainability of this suit for want of money lending license is without any substance. This issue is also decided accordingly in favor of the plaintiff and against the defendants.

5. The appellant has mainly contended that suit filed by the plaintiff was barred by time and was also hit by the provisions of the Punjab Relief of Indebtedness Act, 1934. Both these contentions are without any merit. The loan was admittedly advanced on 28.7.99 while the suit was filed before the Court of competent jurisdiction on 29.7.02 as 28.7.02 was a Sunday. The learned Counsel appearing for the appellant has failed to refer to any provisions of Limitation Act which in these circumstances would persuade the Court to hold that the suit was barred by time. As far as the issue of suit being barred under the provisions of Punjab Relief of Indebtedness Act, 1934, we have no hesitation in accepting the above findings recorded by the learned Trial Court on this issue. Both these contentions, thus, merit rejection.

6. The learned Counsel appearing for the appellant while relying upon the judgment of the supreme Court in the case of Central Bank of India v. Ravindra and Ors. contended that the interest cannot be paid in excess of 6% on the principal sum adjudged and the findings recorded by the learned Trial Court in granting 15% interest is erroneous in law and thus the decree is liable to be set aside. It may be noticed that in the case of Central Bank supra, the Supreme Court was primarily concerned with defining of the expression 'Principal sum adjudged' as appearing in Section 34 of the Code of Civil Procedure. It is interesting to note that the appellants in their written statement not only admitted the loan being given to them but also the element of interest. In Paragraph 5 of the written statement it is stated as under :-

The plaintiff has not approached the Hon'ble Court with clean hands. The true facts are that the plaintiff lent an amount of Rs. 1,95,000/- to the defendant repayable with interest @ 15% per annum

7. This was a clear admission on the part of the appellant of the loan advanced as well as its liability to pay interest Along with the principal amount @ 15%. Of course, in the same paragraph, the appellant has also stated that some Jewellery was purchased by the respondent from the appellant in lieu of the loaned money. This issue was entirely upon the appellant and appellant has miserably failed to discharge this onus. The appellant had relied upon Ex DW1/1 to show that the Jewellery items was purchased by the respondent from the appellant in lieu of the money advanced. Surprisingly, DW1/1 does not bear signatures, receipt of the appellant or any of its representatives. This document does not advance the cause of the appellant any further inasmuch as the money admittedly was advanced on 28.7.99 while the Jewellery is alleged to have been purchased on 11.10.2000. Even the statement of accounts Ex DW1/2 filed by the appellant showing that the account of Indu Rani Jain was being maintained in their books of accounts is again of no avail as in this document allegedly relating to the period from 1.4.2000 to 31.3.01, on 1.4.2000 a credit in the account of the appellant was shown to the extent of Rs. 2,14,874.00/- . There was no dispute that the respondent was entitled to interest @ 15% p.a . This is an admitted case between the parties. There is no explanation rendered in the record either in the written statement or in the statement recorded of DW1 in Court why the said amount did not increase by the interest due and payable to the respondent. In any case, this is a document produced by the appellant in his own favor and in view of an unequivocal admission of the appellant before the Trial Court, we cannot find any error of fact or law in the judgment under appeal. It may also be noticed that even the person who had authored Ex DW1/1 was not produced in Court to show as to who had come from the side of the respondent and had received the alleged Jewellery. DW1 himself admitted that he had received the notice dated 12.1.01 the postal receipt and the registered cover was admitted, bear the correct address of the appellant. Despite receipt of this notice, no reply was sent which again shows that the story now put forward by the appellant in relation to purchase of Jewellery was an after thought and is void of any truth.

8. For the reasons afore-stated, we find no merit in this appeal. The same is dismissed, while leaving the parties to bear their own costs.