Murlidhar Motwani vs Nathuram Waswani
2022 Latest Caselaw 15928 MP

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           IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                                      BEFORE
             HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                        ON THE 1st OF DECEMBER, 2022

                      FIRST APPEAL NO.450 OF 1997

       Between:-

       MURLIDHAR MOTWANI SON OF
       SHRI SUNDERDAS MOTWANI,
       AGED ABOUT 42 YEARS, ASHOK
       KIRANA BHANDAR, COLLIERY
       ROAD, PALI BIRSINGHPUR,
       TAHSIL SOHAGPUR, DISTRICT
       SHAHDOL (M.P.)


                                                           ..............APPELLANT
       (BY SHRI RAJESH MAINDIRETTA, SENIOR ADVOCATE ALONG
       WITH SHRI UDIT MAINDIRETTA, ADVOCATE)


AND

       NATHURAM WASWANI SON OF
       RAHALRAM WASWANI, AGED
       ABOUT 43 YEARS, VIJAY RADIO
       HOUSE, PALI BIRSINGHPUR,
       TAH. SOHAGPUR, DISTRICT
       SHAHDOL (M.P.)
                                                         ............RESPONDENT

       (BY SHRI ABHISHEK SINGH, ADVOCATE)

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        This appeal coming on for final hearing this day, the Court passed
the following:
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                                JUDGMENT

This appeal has been preferred by the defendant/appellant

challenging the judgment and decree dated 30/06/1997 passed by 1st

Additional District Judge, Shahdol in Civil Suit No.11-B of 1990,

whereby learned trial Court has decreed the suit for recovery of money to

the tune of Rs.74,000/- along with interest @12% p.a. w.e.f. 21/02/1990

till its realization.

2. In short the facts are that the respondent/plaintiff instituted a suit

for recovery of an amount of Rs.86,580/- with the averments that the

appellant/defendant borrowed an amount of Rs.74,000/- from the

respondent/plaintiff and agreed to pay interest @2% p.a. with the further

agreement to repay the same in installments.

3. The appellant/defendant filed written statement and denied the

averments made in the plaint and denying the transaction as alleged by

the plaintiff, prayed for dismissal of the suit.

4. On the basis of pleadings, learned trial Court framed as many as 10

issues and recorded evidence of the parties and vide its judgment and

decree dated 30/06/1997 held that the defendant had borrowed an amount

of Rs.74,000/- through Cheque No.064343 dated 21/02/1990 and the

contention of the defendant to the effect that the amount of Rs.74,000/-

was got deposited by the plaintiff himself in his bank account, was not

found correct. Accordingly, learned trial court finding the transaction

proved decreed the suit for an amount of Rs.74,000/- along with interest

@12% p.a. including the cost of the suit.

5. Learned counsel for the appellant/defendant submits that the

learned trial court has erred in decreeing the suit whereas the amount of

cheque was deposited on the same date by the defendant in the bank

account of plaintiff, which is clear from the deposit/withdrawal slip

Ex.D/5 and Ex.D/7 and the learned Court below has erred in disbelieving

the evidence adduced by the defendant in that regard. At last, learned

counsel for the appellant submits that without there being any agreement

with regard to payment of interest @12% p.a., learned Court below has

erred in awarding the interest @12% p.a. He further submits that looking

to the transaction in between the parties, the interest more then 6% p.a.

could not have been awarded as provided under Section 34 of CPC.

6. Learned counsel for the respondent/plaintiff supports the impugned

judgment and decree and submits that no illegality has been committed by

learned trial Court in passing decree of an amount of Rs.74,000/- along

with interest @12% p.a.

7. Heard learned counsel for the parties and perused the record.

8. The following point for determination arises in this appeal:

Whether the learned trial Court has erred in decreeing the suit for an amount of Rs.74,000/- along with interest @12% p.a.

9. After having considered the entire material available on record, the

learned Court below on the basis of documentary evidence available in

the shape of a cheque No.064343 dated 21/02/1990, has found that the

defendant borrowed an amount of Rs.74,000/- from the plaintiff with the

condition of repayment. The oral testimony of defendant with regard to

payment of an amount of cheque on the same date has rightly been

disbelieved by learned Court below. Further, there was no reason

available to repay the amount of cheque just on the same date, therefore,

in my considered opinion there is no illegality in the judgment and decree,

whereby learned Court below has decreed the suit with regard to an

amount of Rs.74,000/-.

10. However, there is no written agreement available on record with

regard to payment of interest @12% p.a. and the agreement which has

been placed on record by the plaintiff has already been discarded by

learned trial Court holding it to be inadmissible in evidence. As such, in

absence of any written agreement with regard to the payment of interest

@12% p.a., there is no justifiable reason available on record to award

interest more than 6% p.a. which is provided under Section 34 of CPC.

11. Accordingly, this appeal is allowed in part only with regard to

interest and instead of interest @12% p.a., the suit stands decreed with

6% p.a. interest. Rest of the judgment and decree stands confirmed.

Certainly the amount previously deposited by the appellant in compliance

of the interim order passed by this Court shall be adjusted while executing

the decree by the Court below.

12. Parties to bear their own costs. Registry is directed to draw a decree

accordingly.

(DWARKA DHISH BANSAL) JUDGE RS Digitally signed by RASHMI RONALD VICTOR Date: 2022.12.02 11:32:27 +05'30'