Delhi High Court
Ms. Deepa Jain vs M/S Rama Kant & Sons. on 25 November, 2008
Author: Pradeep Nandrajog
R-41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.257/1993
Date of decision: 25th November, 2008
%
MS. DEEPA JAIN ..... Appellant
Through: Mr. A.P. Aggarwal and
Mr. Y.R. Sharma, Advocates.
versus
M/S RAMA KANT & SONS. ..... Respondents
Through : None.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. Ms. Deepa Jain, appellant suffered a dismissal of her suit
which sought a decree for recovery of Rs.24,000/- being a
stated loan advanced by her and pre-suit interest calculated
on the loan amount @ 3% per annum totaling Rs.19,164.27.
She also claimed Rs.1,320/- towards lawyer's fee through
whom she had caused to be issued a legal notice upon the
defendants before she filed the suit.
2. In her suit, Ms. Deepa Jain pleaded that at the asking of
Mr. Rama Kant Bhagaria, defendant No.2, she advanced a
loan of Rs.24,000/- in the name of M/s. Cine Laboratories &
Studio Limited with an assurance from defendant No.2 that he
would repay the loan with interest @ 3% per month. She
claimed that interest for the month of November and
December, 1985 as also the month of January, 1986 totaling
Rs.2,160/- was received by her and that she further received
Rs.5,000/- towards part payment of interest, suit was filed
seeking a decree as aforenoted.
3. Defence taken by Mr. Rama Kant Bhagaria was of a
denial of having received the loan as per para 5 of the written
statement. But, surprisingly, in para 8 of the written
statement after accepting the receipt of the loan he pleaded
as under: -
"8. Para No.8 is wrong and denied. No
amount is due to the plaintiff from the defendant
No.1 & 2. The plaintiff was liable to pay to the
defendant No.2 a sum of Rs.9,500/- as on
31.3.1986 as per her written certificate to this
effect (Annexure - A). The plaintiff was also
liable to pay Rs.8,000/- to Smt. Minaxi Bhageria
(daughter-in-law of defendant No.2 and member
of defendant No.1) as on 31.3.1986 as per
plaintiff's written confirmation (Annexure - B).
Both these amounts of Rs.9,500 plus Rs.8,000/-
have been adjusted by the plaintiff towards the
discharge of the alleged liability of Rs.24,000/- of
defendant No.1 & 2. Also defendant No.2 have
paid Rs.2,160/- vide cheque No.55391 and
Rs.5,000/- vide cheque No.065223 on Allahabad
Bank, Timarpur, Delhi. Thus total amount
received and adjusted by the plaintiff from the
defendants No.1 &2 comes to Rs.24,660/- (the
excess amount of Rs.660/- have been adjusted
by defendant No.2 and the parents of the
plaintiff). It is further denied that any amount is
due to the plaintiff from the defendants No.1 & 2
towards any notice charges."
4. On the pleading of the parties, undernoted issues were
settled: -
"1. Whether the plaintiff is running money
lending business? If so to what effect? OPD.
2. Whether the suit is bad for non-joinder of
all the members of HUF deft. no.1 as
necessary parties? OPD.
3. Whether the alleged amount was given for
the benefit of the HUF? If not to what
effect?
4. Whether there is consent of all the
members of defendant no.1 to receive the
alleged amount? If not to what effect?
5. Whether the pltff. has no cause of action to
file the present suit?
6. Whether the amount of Rs.7,160/- paid by
the defendant was towards interest? OPP.
7. Whether the pltff. was liable to pay a sum
of Rs.9,500/- to deft. No.2 and a sum of
Rs.8,000/- to Smt. Minaxi Bhageria as on
31.3.86? OPD.
8. Whether the pltff. is entitled to recover
interest? If so at what rate? OPP
9. Relief."
5. Finding returned by the Learned Trial Judge is that the
loan was indeed advanced but refund has been declined on
the basis of the defence predicated in para 8 of the written
statement.
6. Learned Trial Judge has held that the evidence
establishes that the plaintiff was liable to pay Rs.9,500 /- to
defendant No.2 as on 31.03.1986 and was also liable to pay
Rs.8,000/- to Ms. Minaxi Bhageria the daughter-in-law of
defendant No.1.
7. Learned Trial Judge has held that the plaintiff admitted
having received Rs.5,000/- and Rs.2,160/- from defendant
No.2 and if further amount of Rs.8,000/- and Rs.9,500/- was
added, total amount received by the plaintiff from defendant
No.2 comes to Rs.24,660/-. Thus it has been held that the
plaintiff was not entitled to any further money.
8. Learned counsel for the appellant urges that Rs.8,000/-
and Rs.9,500/- claimed to be payable as per the averment
made in the para 8 of the written statement by the plaintiff, if
at all, were to Ms. Minaxi Bhageria and that there is no
evidence on record that Ms. Minaxi Bhageria directed the
plaintiff to adjust the said sum from the loan advanced to
defendant No.2.
9. Thus, it is urged that the plaintiff was entitled to the
decree as prayed for because admittedly Rs.24,000/- received
by the defendant No.2 remain unpaid. Counsel urges that
Rs.5,000/- and Rs.2,160/- received by the appellant
represented the interest payable on the loan.
10. Unfortunately, no assistance has been rendered from
the side of the respondents.
11. The contention of learned counsel for the appellant is
correct. Indeed, there is no evidence on record that Ms.
Minaxi Bhageria concede to adjust of any money payable to
her from out of the sum advanced by the plaintiff to
defendant No.2. Evidence of defendant No.2 shows that he
attempted to prove that Rs.8,000/- and Rs.9,500/- was
advanced as loan by Ms. Minaxi Bhageria.
12. Thus, Rs.9,500/- and Rs.8,000/- could not have been
adjusted against the loan advanced by the appellant to
defendant No.2.
13. We note that Rs.5,000/- and Rs.2,160/- represented the
interest which was payable on the loan amount. We also note
that @ 3%, per month the interest is usurious. We are of the
opinion that the appellant would be entitled to a decree in
sum of Rs.24,000/- with interest @ 12% per annum reckoned
with effect from 3 months prior to the date of suit.
14. Noting that the suit was filed on 24.5.1989, we grant
interest to the appellant on Rs.24,000/- with effect from
24.5.1986 till realization.
15. The appeal is allowed. Impugned judgment and decree
dated 22.01.1993 is set aside. Suit filed by the appellant is
decreed against defendant No.2 in sum of Rs.24,000/-(Rupees
Twenty Four Thousand Only) with interest @ 12 % per annum
with effect from 12.5.1986 till realization. The appellant shall
be entitled to propionate cost all throughout.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
NOVEMBER 25, 2008
mk/aj
