Shri Narain Singh Dabas vs Shri Raj Pal Singh And Another
2009 Latest Caselaw 816 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CS(OS) No.716/2007

%                        Date of Decision:   13.03.2009

Shri Narain Singh Dabas                                .... Plaintiffs
                    Through Dr. S.P. Sharma, Advocate.

                                   Versus

Shri Raj Pal Singh and another                            .... Defendants
                     Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.   Whether reporters of Local papers may be                  YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                    NO
3.   Whether the judgment should be reported in                NO
     the Digest?


ANIL KUMAR, J.

*

1. This is a suit for recovery of Rs.25.00 lakh filed by the plaintiff

against the defendants on the ground that an amount of Rs.25,00,000

was given as loan to the defendant for purchasing a property by him

which amount the defendant has not returned though under the

agreement entered with the plaintiff by the defendant he had to return

the loan within forty five days.

2. The plaintiff contended that defendants are relations of the

plaintiff and they had good relations. Defendants wanted to purchase

some property at Nainital in September 2006 and, therefore, they

approached the plaintiff as they were short of the money and

consequently an agreement was arrived at between the plaintiff and the

defendants whereby the plaintiff agreed to give a loan of Rs.25.00 lakh

to the defendants for purchase of the property by defendants at

Nainital.

3. Under the agreement, defendants also agreed to refund the loan

amount within 45 days of receiving the loan and it was also agreed that

in case the defendants do not refund the loan amount, the plaintiff shall

be entitled to recover the said amount from the property of the

defendant at 155, Kohat Enclave, Pitampura, Delhi.

4. Consequently, the agreement dated 18th September, 2006 was

executed between the parties and an amount of Rs.25.00 lakh in cash

was given to the defendants as loan which was to be refunded within

forty five days.

5. The plaintiffs pleaded that 45 days period expired on 2nd

November, 2006, however, the defendants did not purchase the

property at Nainital nor the loan amount was refunded and, therefore,

plaintiff made demands for the refund of the amount which was loaned

to the defendants. The plaintiff pleaded that the defendants even

refused to attend the demands made on telephone and avoided the

plaintiff in one way or the other.

6. It is pleaded by the plaintiff that ultimately plaintiff served a legal

notice by registered post and UPC demanding amount of loan. Notice

sent by registered post was refused and the notice sent by UPC was not

returned and it is deemed to have been served on the plaintiff.

7. As the defendants failed to return the loan amount in accordance

with the agreement and despite demands made by the plaintiff, he filed

a suit for recovery of Rs.25.00 lakh with interest at the rate of 18% per

annum from the date of the agreement, i.e., 18th September, 2006.

8. The summons of the suit was served on the defendants and

defendant No.1 and 2 appeared in person on 30th July, 2007. Despite

the time given by the court to file the written statement in accordance

with Order VIII Rule 1 of the Code of Civil Procedure, the written

statement was not filed. Since the written statement was not filed

within time prescribed under law, rather no written statement was filed,

the right of the defendants to file the written statement was closed by

order dated 14th December, 2007. Thereafter plaintiff filed his

deposition on affidavit.

9. The plaintiff in his deposition deposed that the loan amount of

Rs.25.00 lakh was given pursuant to the agreement dated 18th

September, 2006 arrived at between the parties. It is deposed that the

agreement was signed by the defendants and the plaintiff and the

agreement is also witnessed. The original agreement arrived at between

the parties has been exhibited as Ex.PW1/A. The plaintiff has also

proved the demand notice and the postal receipts which are exhibited

as Ex.PW1/B (colly.). The UPC Certificate of posting to defendant No.1

and 2 are also proved as Ex.PW1/B (colly.) and the registered envelope

with the report of the refusal are also proved as Ex.PW1/C.

10. The deposition of the plaintiff has remained un-rebutted and in

the circumstances the inevitable inference is that the plaintiff had given

a loan of Rs.25.00 lakh to the defendant which amount the defendants

have failed to repay with interest despite the expiry of 45 days period as

had been agreed by the parties under the agreement dated 18th

September, 2006. The amount has not been refunded despite a notice of

demand dated 7th March, 2007. Since it has been established that the

plaintiff had given a loan of Rs.25,00,000 which amount was received

by the defendants and which amount has not been refunded by the

defendants, therefore, the plaintiff has become entitled for a decree for

recovery of Rs.25,00,000 from the defendants jointly and severally.

11. According to the plaintiff the amount became due from the

defendants after forty five days from 18th September, 2006 when the

agreement was executed between the plaintiff and the defendants and

an amount of Rs.25,00,000/- was given as loan. In the circumstances,

the plaintiff became entitled to get the loan amount back on or about

2nd November, 2006. In the prayer in the plaint the plaintiff has

claimed interest from the date of the agreement, however, the amount

which became due on account of interest from the date of the

agreement till filing of the suit has not been given nor the amount of the

interest has been included in the amount claimed in the suit nor any

court fees has been paid thereon. In the deposition of the plaintiff it has

not been deposed that the plaintiff is entitled for interest from the date

of the agreement till filing of the suit. The plaint was filed by the

plaintiff on 19th April, 2007. In the circumstances the plaintiff is not

entitled for interest from the date of the agreement till filing of the suit.

12. The learned counsel for the plaintiff has contended that if the

plaintiff is not entitled for interest from the date of the agreement till

filing of the suit, still the plaintiff shall be entitled for interest from the

date of filing of the suit till the amount is recovered. The learned

counsel has relied on 2008 (100) DRJ 34, Hartlay Knits v. DVH

Industries Inc. & Anr.; JT 2006 (5) SC 484, Life Insurance Corporation

of India & Anr. v. Smt. S.Sindhu; 2006 (8) SCALE 129, M/s Manalal

Prabhudayal v. Oriental Insurance Co.Ltd. and 49 (1993) DLT 115,

Kanoria Chemicals Industries Limited v. Upendra Gariyali & Anr to

contend that the plaintiff is entitled for pendent lite and future interest

in the facts and circumstances of the case.

13. In Hartlay Knits (supra) a decree for recovery of money in US

dollars was passed and it was also held that the decree ordered shall be

entitled for interest at the rate of 7% per annum till the date of

realization. In Life Insurance Corporation of India (supra) it was rather

held that Life Insurance Corporation of India was not liable to pay

interest, however, the interest which had already been paid was

directed not to be refunded. The ratio of the said cases does not support

the plea of the plaintiff to claim interest pendente lite and future

interest. In M/s Manalal Prabhudayal (supra) award of interest at the

rate of 12% per annum for the pre reference period, pendente lite and

future interest was upheld by the Supreme Court. A single judge of

Delhi High Court in Kanoria Chemicals Industries Ltd. (supra) had

awarded pendente lite and future interest at the rate of 12% per annum

though agreed rate of interest was 21%.

14. Considering the facts and circumstances and the deposition of

the plaintiff in the present facts and circumstances, the plaintiff is,

therefore, awarded simple interest at the rate of 9% per annum from the

date of the institution of the suit till realization of the decreetal amount.

15. In the circumstances, the suit of the plaintiff is decreed for

recovery of a sum of Rs.25.00 lakh with pendente lite and future

interest at the rate of 9% per annum from the date of institution of the

suit till the realization of the decreetal amount. Cost of the suit is also

awarded to the plaintiff against the defendant. Decree sheet be drawn

accordingly.

March 13, 2009                                      ANIL KUMAR, J.
'Dev'