Delhi High Court
Krishan Swaroop vs Sh.Krishan Lal on 11 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 11.3.2011
+ RSA No. 230/2010 & CM No.22896/2010
KRISHAN SWAROOP ...........Appellant
Through: Mr.S.K.Anand, Advocate.
Versus
SH.KRISHAN LAL ..........Respondent
Through: Nemo.
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.22897/2010 (for exemption)
Allowed subject to just exceptions.
RSA No. 230/2010 & CM No.22896/2010
1. This appeal has been directed against the impugned
judgment and decree dated 04.9.2010 which had endorsed the
finding of the trial judge dated 6.4.2004 whereby the suit filed by
the plaintiff Krishan Lal seeking recovery of Rs.81,400/- along with
interest had been decreed in his favour. The case of the plaintiff is
that he had given a loan of Rs.55,000/- to the defendant. This was
on 01.3.1996. Defendant had agreed to return the loan along with
interest @ 24% per annum. Loan had been agreed to be returned
within one and a half months. The loan had been paid by way of
five cheques, details of which have been mentioned in the plaint.
This was by way of four sums of Rs.10,000/- each and one sum of
Rs.15,000/-. Initially the suit had been filed under Order XXXVII of
the Code of Civil Procedure ( hereinafter referred to as 'the CPC').
Thereafter on an application for leave to defend which was allowed
the suit was considered as a regular suit. Contention of the
defendant was that the said cheques had been obtained by the
plaintiff malafidely and no legal liability was due and payable by
the defendant.
2. On the pleadings of the parties, the following four issues had
been framed:
1. Whether the plaintiff is entitled for the recovery of Rs.81,400/-?
OPP
2. Whether the plaintiff is entitled to the interest thereon? If the
answer is in affirmative, at what rate and for which period? OPD
3.Whether there is a privity of contract between the parties? OPD
3. Oral and documentary evidence was led. Trial court had
decreed the suit of the plaintiff in the sum of Rs.81,400/- which was
the suit amount along with pendentelite and future interest @ 12%
per annum.
4. The impugned judgment has upheld this finding. The first
appeal had in fact been belatedly along with an application under
Section 5 of Limitation Act; the application was allowed. The
appeal accordingly stood dismissed.
5. This is a second appeal. On behalf of the appellant, it has
been urged that the principal amount was Rs.55,000/- but the suit
had been decreed for Rs.81,400/-; this pre-suit figure could not
have been allowed as no evidence was led by the plaintiff on this
score. Attention has also been drawn to the deposition of PW-1
wherein he had stated that the defendant had agreed to repay the
loan along with interest 2% per month. It is pointed out that the
pendentelite and future interest granted @ 12% per annum is an
illegality. This is a perverse finding.
6. Record has perused.
7. The plaint shows that the suit had been filed for recovery of
Rs.81,400/- of which Rs.55,000/- is the principal figure of five
cheques. Averments in the plaint reiterated on oath is further to
the effect that this amount of Rs.55,000/- was not paid within the
stipulated period of one and half month it would be repaid along
with interest @ 2% per month; cheques were admittedly advanced
on 01.3.1996. The figure calculated at the rate of 2% per month
from 01.3.1996 to 31.1.1998 i.e. Rs.25,300/- and another additional
sum of Rs.1100/- as notice charges had formed a part of the suit
amount. This has clearly been stated in the para 7. It has also
been reiterated on oath. This testimony of PW-1 was unassailed.
In spite of opportunity to cross-examine PW-1, he was not cross-
examined. Both the two fact finding courts have in fact reaffirmed
that the defendant had no defence. The cheques had in fact been
issued for a valid consideration. Presumption under Section 118 of
Negotiable Instruments Act is also in favour of the plaintiff. Even
otherwise there is no arguments urged before this court today that
the said cheques were not a liability payable by the defendant to
the plaintiff. Only grievance of the appellant is on the quantum of
interest - pre-suit, pendentelite and future. Rate of interest has
also not been assailed in the cross-examination; suit amount of
Rs.81,400/- was rightly decreed. The pendentelite and future
interest has been granted in terms of Section 34 of the Code.
Under this statutory provision pendentelite interest can be granted
at a rate which is reasonable and future interest may not be
granted at a rate exceeding 6% unless it is a commercial
transaction or there is a contractual rate. PW-1 had categorically
stated that the contractual rate of interest was 2% per month.
Discretion has been exercised by the trial judge fairly and
judiciously holding that interest @ 24% per annum is interest at a
higher rate; interest @ 12% per annum had accordingly been
granted. The deposition of PW-1 wherein he had stated that he had
claimed interest @ 2% per month is clearly a typographical error
and no one single statement out of this deposition can be singled
out. Testimony of PW-1 has to be read in its entirety. Ex. PW-1/7
was the legal notice proved by PW-1 wherein also he had claimed
interest @ 24 % per annum; so also is the clear averment made in
the plaint.
8. Substantial question of law have been embodied on pages D
and E of the body of the appeal; they read as follows:
i. Whether the dismissal of appeal on the ground of limitation only
and without appreciating the efficacy of merit of the case and legal
irregularity is just and fair?
ii. Whether respondent is entitled to interest @ [email protected] p.a. for
preceding period and cost of notice findings?
9. No such substantial question of law has arisen. Appeal as
also pending application is dismissed in limine.
INDERMEET KAUR, J.
MARCH 11, 2011
nandan
