Delhi High Court
Ramesh Chander vs M/S Shiv Infra Promoters Pvt Ltd on 21 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 211/2017
% 21st August, 2018
RAMESH CHANDER ..... Appellant
Through: Mr. Anil Kumar Chunduru,
Advocate (Mobile No.
9811335435).
versus
M/S SHIV INFRA PROMOTERS PVT LTD ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 („CPC‟) is filed by the plaintiff in the suit
impugning the Judgment of the Trial Court dated 26.10.2016 by which
the trial court has dismissed the suit filed by the appellant/plaintiff for
recovery of Rs.4,30,860/- being interest for the period of delay from
29.9.2011 till 4.11.2011 with respect to encashment of the cheque for
an amount of Rs.1,82,01,960/-,and which cheque amount was the
consideration with respect to selling of the property of the
appellant/plaintiff to the respondent/defendant.
2. The facts of the case are that appellant/plaintiff sold his
property being 1/5th share in agricultural land bearing khatoni no.
40/35, out of khasra nos. 27/5 (5-05), 28/1 (4-16), 2 (4-16), 3 (4-16), 4
(4-16), 5 (4-16), 6 (4-16), 7 (4-16), 8 (4-16) and 9 (4-16), total land 43
bighas 13 biswas situated in the area of village Chandpur, Delhi, to the
respondent/defendant. The total sale consideration was
Rs.1,82,01,960/- and this was paid by the respondent/defendant/buyer
by a cheque bearing no. 106335 dated 29.9.2011 drawn on Syndicate
Bank, I.P. Estate, New Delhi. This cheque however on presentation
was returned with the remarks that the account was blocked.
Ultimately, the appellant/plaintiff represented the cheque which was
cleared on 4.11.2011 and therefore claiming interest at 2% per month
for the period of delay of encashment of the cheque, the subject suit
was filed.
3. Though respondent/defendant originally contested the
suit by filing written statement, however no evidence was led on
behalf of the respondent/defendant. The respondent/defendant as per
its written-statement denied any liability to pay interest on account of
delay, including by pleading that there is no such agreement to this
effect.
4. After pleadings were complete trial court framed issues
and appellant/plaintiff led evidence, and this is recorded in paras 17 to
22 of the impugned judgment and these paras read as under:-
"17. On the basis of pleadings, Ld Predecessor has framed
following issues:-
(i)Whether the plaintiff is entitled to recover a sum of
Rs.4,30,860/- from the defendant as prayed? OPP
(ii)Whether the plaintiff is entitled for pendentelite and future
interest as prayed? OPP
(iii)Relief.
18. During evidence, plaintiff examined himself on his affidavit, and
also relied upon documents mentioned therein as Ex.PW1/1 to Ex.PW1/3
i.e. legal notice issued by the plaintiff, postal receipts thereof, and also AD
card. Further, he relied upon certain documents, that were copy of return
memo, certificate from the bank and statement of account.
Though they were later on proved through witness of the bank, initially
these were marked as Mark B to D.
19. Apart from himself, the plaintiff also examined three other
witnesses, and out of whom one was his childhood friend namely Sh.
Bijender Singh who examined himself on his affidavit Ex.PW2/A as PW2,
and stated that in his presence, the defendant had given
assurance for payment of interest @ 2% per month on the delayed
payment.
20. PW3 Sh. Naresh Kumar was an official from banker of the plaintiff
itself, and he produced record regarding cheque in question i.e.
consisting of four pages which were Ex.PW3/1, and he proved
certificate issued by bank as Ex.PW3/2.
21. Besides this, the plaintiff also examined PW4 Sh. Ramesh Chander
Pandey who was an officer in the bank of defendant. This witness was not
able to produce any record showing that the account of defendant had been
blocked by any supporting order in this regard from any authority
whatsoever.
22. PW5 Mrs. Rashmi Rajput was also examined on behalf of the
plaintiff on her oral testimony. She has proved authority letter issued
by Sh.Vijay Kumar Gulati, executed in her favour as Ex.PW5/A. Apart
from that, she also produced minute book on the basis of which, copy of
extracts of board resolution Ex.PW5/B (OSR) was admitted."
5. The only aspect to be considered by this Court is whether
the appellant/plaintiff is entitled to interest for the period of delay in
encashment of the cheque from 29.9.2011 to 4.11.2011.
6. No doubt there is no agreement between the parties, but
counsel for the appellant/plaintiff rightly relies upon paragraph 21 of
the judgment of the Supreme Court in the case of South Eastern
Coalfields Ltd. Vs. State of M.P. and ors., (2003) 8 SCC 648 and
which holds that interest is payable in equity in certain circumstances.
This paragraph 21 of the judgment in the case of South Eastern
Coalfields Ltd. (supra) reads as under:-
"21. Interest is also payable in equity in certain circumstances. The rule in
equity is that interest is payable even in the absence of any agreement or
custom to that effect though subject, of course, to a contrary agreement.
Interest in equity has been held to be payable on the market rate even
though the deed contains no mention of interest. Applicability of the rule
to award interest in equity is attracted on the existence of a state of
circumstances being established which justify the exercise of such
equitable jurisdiction and such circumstances can be many."
7. Learned counsel for the appellant/plaintiff is also justified
in arguing that Section 80 of the Negotiable Instruments Act, 1881,
provides for interest @18% per annum whenever a cheque is
dishonoured, and that though it is stated that ultimately the subject
cheque was cleared, but there was a period of non-payment on account
of dishonour of the cheque, and therefore Section 80 of the Negotiable
Instruments Act applies.
8. In view of the arguments urged on behalf of the
appellant/plaintiff, and the ratio of the judgment of the Supreme Court
in the case of South Eastern Coalfields Ltd. (supra), and Section 80
of the Negotiable Instruments Act, it is ordered that appellant/plaintiff
is entitled to interest at 1½% simple per month from 29.9.2011 till
4.11.2011 on the amount of Rs. 1,82,01,960/-. Money decree is
accordingly passed in favour of the appellant/plaintiff and against the
respondent/defendant. Appellant/plaintiff will also be entitled to costs
throughout. Decree sheet be prepared.
9. The appeal is disposed of accordingly.
AUGUST 21, 2018 VALMIKI J. MEHTA, J
AK
