Grammy Communications Pvt. Ltd. vs B.P.L. Telecom Pvt. Ltd.
2007 Latest Caselaw 1530 Del

JUDGMENT

Manmohan Sarin, J.

1. The suit filed by the appellant has been decreed against the respondent in the sum of Rs.7,75,681/- with costs and interest @ 12% per annum w.e.f. 1.4.2004 till the amount is paid. The appellant's grievance in the appeal is that interest should have been awarded @ 36% per annum, which is claimed to be the contractually agreed rate between the parties. The respondent had been duly served in appeal but none appeared for the respondent. None has appeared on behalf of the respondent on 9th July, 2007 or for that matter, on 14.8.2007.

2. The suit had been filed by the plaintiff against the defendant claiming the price for range of the telecommunication products supplied to the defendant. It is not necessary, in these circumstances, to go into any other aspect except the claim for interest as this is the only relief being sought by the appellant. The Trial Court while dealing with the question of interest, held as under:

18. So far as interest is concerned, plaintiff has claimed interest @ 36% per annum. In notice Ex. PW 1/13 plaintiff has claimed interest @ 36% per annum. The order placed by defendant on the plaintiff has been proved as Ex. PW 1/3. the invoices raised by the plaintiff have been proved as Ex. PW' and PW 1/5. In both these invoices, it has been mentioned that interest @ 36% will be levied if payment was made after due date. Invoice is unilateral document and not the bilateral agreement showing that parties agreed to the terms and conditions of the interest, therefore, same is not binding on the defendant. Even otherwise interest @ 36% per annum is quite exorbitant. I my considered opinion, ends of justice will be met if interest @ 12% per annum is allowed from 1.4.04 claimed in the notice Ex. PW 1/13 till the amount is paid. These issues are accordingly decided in favor of plaintiff and against the defendant.

3. Mr. P.P. Ahuja, learned Counsel submitted before us that the dealings between the appellant and the respondent were of a commercial nature and hence, covered under Section 34 of the Code of Civil Procedure. This apart, he submitted that the agreed contractual rate of interest was 36%. In support, he relies on a printed term of the Invoice raised by the appellant in respect of the supply of goods. The relevant clause of the terms as given in the Invoice No. 648 is reproduced:

Interest at the rate of 36% p.a. will be levied, if payment is delayed beyond due date....

4. As regards the due date, the term of payment mentions 75% against delivery. It would, thus, be noticed that no due date specified except indicating that 75% is to be paid against delivery. However, this is not of any material consequence since the appellant has claimed interest in the suit from the date of notice as given. We may also notice that it is the appellant's own case that the respondent had placed an order for supply of goods through a purchase order issued. The said purchase order is dated 12.11.2001 and carried the following terms:

TERMS AND CONDITIONS:

Above Prices are inclusive of Excise Duty.

CST @ 4% extra against 'C' form.

Delivery within 1-2 weeks from the date of firm Purchase Order.

Payment 75% with 15 days of delivery and balance on Installation

Cables Quantity will be billed as per actuals.

The said purchase order is duly exhibited as PW-1/3.

5. It would be seen from the foregoing that the purchase order issued by the respondent did not carry any stipulation with regard to the payment of interest and it is the appellant's own case that the order was placed through this purchase order. It is in this background that we have to consider the invoice, which is issued subsequent to the purchase order. The respondents admit the receipt of the invoice but have denied its contents. It is the appellant's own case in the plaint that it had quoted the final price vide its order of 12.11.2001 whereupon respondent had placed the purchase order for Rs.19,01,549.3, i.e. Ex. PW-1/3. The above two documents, accordingly, would constitute the contract between the parties. The factum of mentioning of rate of interest in the printed term of the invoice would be the subsequent event. Thus, the finding of the trial Court that the printed term of the invoice is a unilateral one, finds support from the above.

6. In these circumstances, the entitlement of the appellant can be to receive interest at the commercial bank lending rate. Keeping these factors in mind, even though no evidence has been led with regard to the prevailing commercial bank lending rates on record, but taking judicial notice of the same, we allow the appeal partly and grant interest @ 15% instead of 12%. The appeal stands disposed of accordingly.