M/S Goel Trading Co & Anr vs M/S Merific Sales & Anr
2013 Latest Caselaw 5713 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 10th December, 2013

+                               RFA 502/2013
       M/S GOEL TRADING CO & ANR                ..... Appellants
                    Through: Mr. R.C. Gupta, Adv.
                                    versus
       M/S MERIFIC SALES & ANR                                 ..... Respondents
                     Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.     Notice of this appeal issued to the respondents remains unserved with

the report of the respondents having left the address given.


2.     The counsel for the appellants states that the appellants are not aware

of any other address of the respondents and the respondents were served

with the summons of the suit also by publication at the said address and had

failed to appear in the suit.


3.     On enquiry as to how the appellants will then recover the monies from

the respondents, the counsel states that the appellants will continue to make

enquiries of the whereabouts of the respondents.



RFA No.502/2013                                                      Page 1 of 5
 4.     In the circumstances, need is not felt to complete the formality of

ordering service of the respondents by publication or by pasting especially

when the only grievance against the ex parte judgment and decree dated 22nd

July, 2003 of the Court of the Addl. District Judge, Central-9, Delhi in Civil

Suit No.273/2013 (Unique Case ID No.02401C0011102013) is of denial of

interest to the appellants.


5.     The appellants i.e. appellant no.1 M/s. Goel Trading Company and its

proprietor Shri Prem Chand Goel had instituted the suit from which this

appeal arises for recovery from the respondents/defendants i.e. respondent

no.1 M/s. Merific Sales and its proprietor Shri M.K. Wadhwa of a sum of

Rs.3,04,160/- along with interest at 18% per annum from the date of

institution of the suit till realization, pleading that the appellants had

sold/supplied/delivered goods to the respondents/defendants inter alia vide

two bills both dated 11th September, 2012 for the sums of Rs.1,65,750/- and

Rs.2,86,700/- i.e. for a total amount of Rs.4,52,450/-; that the

respondents/defendants in payment of the said bills had issued cheque

No.511793 for Rs.1,65,750/- and cheque No.512104 for Rs.2,86,700/-;

however payment only of the cheque No.511793 was received and the

cheque No.512104 was dishonoured and payment thereof not made inspite

RFA No.502/2013                                                   Page 2 of 5
 of repeated requests and reminders; that it was a term of the sale between the

parties, printed on the bills that for delay in payment beyond 15 days,

interest @ 18% per annum will be paid; accordingly the suit under Order 37

of the CPC for recovery of Rs.2,86,700/- together with cheque return

charges of Rs.1,200/- and interest at 18% per annum till the date of

institution of the suit, was filed.


6.     The respondents/defendants failed to enter appearance within the

prescribed time inspite of service by publication. The learned Add. District

Judge after verifying that the claim was within limitation, decreed the suit

for recovery of Rs.2,86,700/- and though noticing the stipulation on the bills

was for payment of interest at 18% per annum but observing that interest at

14% per annum shall serve the purpose of justice, awarded interest to the

appellants/plaintiffs on the said sum of Rs.2,86,700/- @ 14% per annum

from the date of filing of the suit and till the date of decree. No reason was

given for denying to the appellants/plaintiffs interest for the period prior to

the institution of the suit or from the date of the decree till realization.


7.     Though the learned Addl. District Judge has also denied to the

appellants/plaintiffs the bank charges of Rs.1,200/- but the counsel for the


RFA No.502/2013                                                        Page 3 of 5
 appellants/plaintiffs has not raised any grievance with respect thereto and the

only grievance is for non-grant of interest for the period prior to the

institution of the suit and for the period after the decree and to reduction of

the rate of interest from 18% to 14% per annum. Reliance is placed on Coim

India P. Ltd. Vs. Kurt O John Shoe Components (I) P. Ltd. 202 (2013)

DLT 73 where in a Order 37 suit, interest @ 22% per annum stipulated on

the bills from the date of each invoice till the institution of the suit, pendente

lite and future was awarded.


8.     Though the appellants/plaintiffs along with the Memorandum of

Appeal have not filed the copy of the bills showing the stipulation for

payment of interest @ 18% per annum but there is an averment to the said

effect in the plaint and the learned Addl. District Judge in the impugned

judgment also has observed that in view of such stipulation the plaintiffs are

entitled to interest @ 18% per annum. The learned Addl. District Judge

however has not given any reason for reducing the rate of interest to 14% per

annum.




RFA No.502/2013                                                       Page 4 of 5
 9.     I see no reason as to why the appellants/plaintiffs should be denied

interest at the contractual rate and for the period prior to the institution of the

suit and till the date of realization.


10.    The appeal is accordingly allowed. The impugned judgment and

decree is modified by decreeing the suit of the appellants/plaintiffs against

the respondents/defendants for recovery of Rs.3,04,160/- together with

interest at 18% per annum on Rs.2,86,700/- from the date of institution of

the suit till the date of realization. The appellants/plaintiffs shall also be

entitled to costs of the suit and of this appeal.


       Decree sheet be drawn up.



                                                    RAJIV SAHAI ENDLAW, J.

DECEMBER 10, 2013 pp..