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Judgment
A.H. Joshi, J.—Appellants herein is the plaintiff in Special Civil Suit No. 318/90/I. Her suit is titled as suit for recovery of money and prayers are as follows:
a) For declaring that the defendant has in deposit an amount of Rs. 3,03,488.77 of the plaintiff as on date of suit;
b) Ordering the defendant to pay to the Plaintiff or deposit in account of plaintiff with Corporation Bank, Panjim an amount of Rs. 6,600/- being outstanding amount due and payable by the defendant to the plaintiff being the repayment at the rate of Rs. 500/-p.m., after giving adjustment to the arrears of rent due and payable to defendant by Plaintiff;
c) Ordering defendant to pay the plaintiff interest at the rate of 15% p.a., on the amount in deposit with him after every three months.
(quoted from page 27 and 28 of paper book).
The defendant has raised a counter claim in the written statement and has prayed for decree for payment of arrears of rent a sum of Rs. 17,688/-.
The admitted document is the agreement of lease. The Crucial recitals in the agreement are as follows:
The party of the second part shall pay to the first party a monthly rent of Rs. 1100/- (Rupees One thousand one hundred) on the day of the opening of the shop No. C for the business.
The party of the second part shall deduct the sum of Rs. 500/- (Rupees Five hundred) every month from the monthly rent payable to the first party for the adjustment towards the advance of Rs. 75,000/- made to the first party till that advance is completely set off.
That the balance of Rs. 600/- shall be paid on or before fifth day of every month, following the month for which rent is due to the party of the first part by the party of the second part.
That the party of the first part shall pay an interest of 15% on the sum of Rs. 75,000/- (Rupees Seventy five thousand) advanced by the party of the second part which sum of interest shall be paid after every three months, beginning from 1st of December 1977.
(Clause Nos.2 to 5 of agreement are quoted from page No. 58 of paper book)
A perusal above a quoted recitals disclose the following:
(a) Agreed rent is Rs. 1100/- per month.
(b) The plaintiff had to deposit with the defendant an amount of Rs. 75,000/-.
(c) Out of Rent amount of Rs. 1100/- sum of Rs. 600/- was payable every month by cash.
(d) Sum of Rs. 500/- was to be adjusted (deducted) from the deposit of Rs. 75,000/-.
(e) Agreed interest is 15%.
(f) It is not clear from any stipulation as to what is the rest of the interest i.e. the periodicity to thereof.
(g) It is not clear as to how the amount of interest is to be paid or adjusted.
The defendant has placed on record a statement of account which is at Exbt.33 of trial court and its copy is at page 95 of paper book of this appeal.
Perusal of this statement of account shows that:
(a) From time to time agreed deduction from deposit of Rs. 75,000/- and reducing credit balance thereof is shown.
(b) In another column in same statement of account interest at agreed rate calculated at the intervals of 3 months is shown credited.
(c) Progressive sum of total of added interest to the figure of accumulated interest is shown.
(d) After the entire figure of credit of deposit of Rs. 75,000/- was wiped out, the dues towards rent were debited in accumulated interest.
(e) At one stage the accumulated interest amount too got wiped out; and
(f) The account has shown the figure of rent due and recoverable.
Correctness of various debits of rent and credit of interest in separate account and summation of interest is not disputed by the plaintiff.
The plaintiff has disputed the principle underlying the said procedure accounting.
What is seen from the account produced by the defendant can be summarized as follows:
(a) the principle sum of Rs. 75,000/-got exhorted by October 1988.
(b) Instead of monthly deduction of Rs. 500/-, and as cash payment of Rs. 600/- per month was stopped, quarterly rent of Rs. 3300/-is debited in the interest credit account from 1.4.87.
(c) Therefore the remaining credit of accrued interest was to the tune/sum of Rs. 16,900/-.
(d) This accumulated interest has then reducing by Rs. 3300/- at every three months towards the unpaid rent. On the day of the suit the defendant''s interest account was showing debit balance i.e. amount due and recoverable sum towards unpaid rent became Rs. 17,688/-.
The plaintiff''s claim in the suit is based on an argument that part of rent of Rs. 500/- per month was due to be deducted from the amount of interest accrued and payable and not from the principle.
It is evident from Clause 3 of the agreement quoted in para No. 3 above, that from the amount of Rs. 1100/- the rent payable, a sum of Rs. 500/- per month was to be adjusted from ''the advanced Rs. 75,000/-''.
Any of the recitals do not support plaintiff''s interpretation that this deduction or adjustment was to be done from the amount of interest accruing every three months.
This Clause No. 5 of agreement is explicitly worded and does not admit any other interpretation.
In the absence of agreement which would expressly support what plaintiff feels what it is, it would not be possible and permissible to allow the plaintiff''s plea.
In this situation, the plaintiff''s suit is found based on figment than on actual agreement.
The accounting done by defendant is seen done by keeping in line with the stipulations incorporated in written agreement and the manner in which it has been acted upon by the parties for long duration. Now i.e. after ten years and immediately prior to the filing of the suit, the plaintiff has changed the stance.
The plaintiff has not alleged that during entire period, at any point of time prior to the suit, the plaintiff has even once demanded the amount towards unpaid, accumulated and aggregated interest. This court is of the view that had the defendant not shown the amount of interest credited from time to time, the amount of interest prior to the period of 3 years from the date of suit may not have been recoverable or even adjustable.
This court is therefore satisfied that the plaintiff''s suit has been rightly dismissed.
This court finds and holds that the amount of counter claim has been decreed, and is correctly decreed. The defendant has however failed to prove the additional sum which he claims to be entitled. This claim for additional amount has been made by the defendant for first time. This claim does not have any foundation in the agreement, terms whereof are fervently relied upon by the defendant.
The appeal and the cross objection, both have no merit and are dismissed.
In these circumstances parties are directed to bear own costs.