Delhi High Court
M/S H.S.Traders vs M/S Latest Wears on 13 December, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.12.2010
+ RSA No.168/2008
M/S H.S.TRADERS ...........Appellant
Through: Mr.Manoj Kumar, Advocate.
Versus
M/S LATEST WEARS ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.10360/2008 (condonation of delay)
There is no opposition to the application. The application is
allowed.
RSA No.168/2008
1. This appeal has impugned the judgment and decree dated
27.10.2004 which had modified the judgment of the Trial Judge
dated 12.4.2004. Vide judgment and decree dated 02.4.2004 the
suit of the plaintiff/appellant had been decreed in his favour along
with interest @ 9% per annum from the date of filing of the suit.
Defendant/appellant had filed an appeal; cross objections had been
filed by the plaintiff. The appeal had been dismissed; the
judgment of the Trial Judge dated 02.4.2004 had however been
modified; interest was awarded to the plaintiff on the decreetal
amount @ 9% per annum from the date of the notice i.e. from July
1998.
2. The findings in the impugned judgment are reproduced
hereinbelow:
"19. A perusal of the plaint reveals that the respondent/plaintiff
had prayed that the interest be paid from the date of institution till
realization. In the plaint, the respondent/plaintiff had claimed an
amount of Rs.1,35,819.40/- being the amount of the bills Ex.PW1/A
to Ex.PW1/D and interest Rs.94,168/- being interest @ Rs.24% per
annum from 21-7-99 till the filing of the suit. The Ld. Trial Court
had awarded interest @ Rs.9% per annum only on the principal
amount and that too from the date of the filing of the suit. The Ld.
Trial Court should have kept in mind the fact that it was a
commercial transaction. The respondent/plaintiff had sent a
notice dated 27.5.98 (Ex.PW1/5) vide registered post. The postal
receipt is Ex.PW1/G and the AD Card is Ex.PW1/1. No reply had
been given by the appellant. In the cross-examination, it has been
admitted by DW1 that the AD Card Ex.PW1/I bears the correct
address of his factory. The UPC also bears the correct address. In
these circumstances, a presumption against the
appellant/defendant will have to be drawn. It will have to be taken
that the notice had been duly served. Reliance can be placed on
"P.C.Jain vs. J.P.Gupta" 1988 (25) DLT 279 and "K.Bhaskaran vs.
Shanrana" AIR 1999 SC 3762. The Ld. Trial Court should have
awarded the interest on the principal amount @ Rs.9% per annum
from July, 1998. No reason has been given by Ld. Trial Court
record as to why the respondent/plaintiff had been deprived of the
interest. The cross objection of the respondent/plaintiff is,
therefore, liable to be accepted. The respondent/plaintiff is
entitled to claim interest @ Rs.9% per annum on the principal
amount ofRs.1,35,819.40/- from July, 1998 till realization."
3. On behalf of the appellant, it has been urged that a
substantial question of law has arisen qua the bills which have
been proved by the plaintiff which show that interest as to be
awarded on delayed payments @ 24% per annum. The first Court
had disposed of this argument of the learned counsel for the
appellant while dealing with issue no.5. It had recorded a finding
that the plaintiff had not led any evidence as to how he is entitled
to the afforested rate of interest. The aforestated judgment also
recorded the finding reproduced herein above. The Court had
exercised its discretion in awarding the interest @ 9% per annum;
the Court below had specifically recorded that no evidence had
been led by the plaintiff on this issue. The exercise of discretion is
just and fair. It cannot in any manner termed to be arbitrary. No
substantial question of law is made out. Appeal is dismissed.
INDERMEET KAUR, J.
DECEMBER 13, 2010
nandan
