Krishan Swaroop vs Sh. Krishan Lal

Indermeet Kaur, J.

CM No. 22897/2010 (for exemption)

Allowed subject to just exceptions.

RSA No. 230/2010 and CM No. 22896/2010

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 CPC ( 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.

On the pleadings of the parties, the following four issues had been framed:

Whether the Plaintiff is entitled for the recovery of Rs. 81,400/-? OPP

Whether the Plaintiff is entitled to the interest thereon? If the answer is in affirmative, at what rate and for which period? OPD

Whether there is a privity of contract between the parties? OPD

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.

The impugned judgment has upheld this finding. The first appeal had in fact been belatedly along with an application u/s 5 of Limitation Act; the application was allowed. The appeal accordingly stood dismissed.

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.

Record has perused.

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 u/s 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.

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 @ 24@ p.a. for preceding period and cost of notice findings?

No such substantial question of law has arisen. Appeal as also pending application is dismissed in limine.