Ms. Deepa Jain vs Rama Kant and Sons

Pradeep Nandrajog, J.—Ms. Deepa Jain, appellant suffered a dismissal of her suit which sought a decree for recovery of Rs. 24,000/- being a stated loan advanced by her and pre-suit interest calculated on the loan amount @ 3% per annum totaling Rs. 19,164.27. She also claimed Rs. 1,320/- towards lawyer�s fee through whom she had caused to be issued a legal notice upon the defendants before she filed the suit.

In her suit, Ms. Deepa Jain pleaded that at the asking of Mr. Rama Kant Bhagaria, defendant No. 2, she advanced a loan of Rs. 24,000/- in the name of M/s. Cine Laboratories & Studio Limited with an assurance from defendant No. 2 that he would repay the loan with interest @ 3% per month. She claimed that interest for the month of November and December, 1985 as also the month of January, 1986 totaling Rs. 2,160/- was received by her and that she further received Rs. 5,000/- towards part payment of interest, suit was filed seeking a decree as aforenoted.

Defence taken by Mr. Rama Kant Bhagaria was of a denial of having received the loan as per para 5 of the written statement. But, surprisingly, in para 8 of the written statement after accepting the receipt of the loan he pleaded as under:

Para No. 8 is wrong and denied. No amount is due to the plaintiff from the defendant No. 1 & 2. The plaintiff was liable to pay to the defendant No. 2 a sum of Rs. 9,500/- as on 31.3.1986 as per her written certificate to this effect (Annexure - A). The plaintiff was also liable to pay Rs. 8,000/- to Smt. Minaxi Bhageria (daughter-in-law of defendant No. 2 and member of defendant No. 1) as on 31.3.1986 as per plaintiff�s written confirmation (Annexure - B). Both these amounts of Rs. 9,500 plus Rs. 8,000/- have been adjusted by the plaintiff towards the discharge of the alleged liability of Rs. 24,000/- of defendant No. 1 & 2. Also defendant No. 2 have paid Rs. 2,160/- vide cheque No. 55391 and Rs. 5,000/- vide cheque No. 065223 on Allahabad Bank, Timarpur, Delhi. Thus total amount received and adjusted by the plaintiff from the defendants No. 1 &2 comes to Rs. 24,660/- (the excess amount of Rs. 660/- have been adjusted by defendant No. 2 and the parents of the plaintiff). It is further denied that any amount is due to the plaintiff from the defendants No. 1 & 2 towards any notice charges.

On the pleading of the parties, undernoted issues were settled:

Whether the plaintiff is running money lending business? If so to what effect? OPD.

Whether the suit is bad for non-joinder of all the members of HUF deft. No. 1 as necessary parties? OPD.

Whether the alleged amount was given for the benefit of the HUF? If not to what effect?

Whether there is consent of all the members of defendant No. 1 to receive the alleged amount? If not to what effect?

Whether the pltff. has no cause of action to file the present suit?

Whether the amount of Rs. 7,160/- paid by the defendant was towards interest? OPP.

Whether the pltff. was liable to pay a sum of Rs. 9,500/- to deft. No. 2 and a sum of Rs. 8,000/- to Smt. Minaxi Bhageria as on 31.3.86? OPD.

Whether the pltff. is entitled to recover interest? If so at what rate? OPP

Relief.

Finding returned by the Learned Trial Judge is that the loan was indeed advanced but refund has been declined on the basis of the defence predicated in para 8 of the written statement.

Learned Trial Judge has held that the evidence establishes that the plaintiff was liable to pay Rs. 9,500 /- to defendant No. 2 as on 31.03.1986 and was also liable to pay Rs. 8,000/- to Ms. Minaxi Bhageria the daughter-in-law of defendant No. 1.

Learned Trial Judge has held that the plaintiff admitted having received Rs. 5,000/- and Rs. 2,160/- from defendant No. 2 and if further amount of Rs. 8,000/- and Rs. 9,500/- was added, total amount received by the plaintiff from defendant No. 2 comes to Rs. 24,660/-. Thus it has been held that the plaintiff was not entitled to any further money.

Learned Counsel for the appellant urges that Rs. 8,000/- and Rs. 9,500/- claimed to be payable as per the averment made in the para 8 of the written statement by the plaintiff, if at all, were to Ms. Minaxi Bhageria and that there is no evidence on record that Ms. Minaxi Bhageria directed the plaintiff to adjust the said sum from the loan advanced to defendant No. 2.

Thus, it is urged that the plaintiff was entitled to the decree as prayed for because admittedly Rs. 24,000/- received by the defendant No. 2 remain unpaid. Counsel urges that Rs. 5,000/- and Rs. 2,160/- received by the appellant represented the interest payable on the loan.

Unfortunately, no assistance has been rendered from the side of the respondents.

The contention of Learned Counsel for the appellant is correct. Indeed, there is no evidence on record that Ms. Minaxi Bhageria concede to adjust of any money payable to her from out of the sum advanced by the plaintiff to defendant No. 2. Evidence of defendant No. 2 shows that he attempted to prove that Rs. 8,000/- and Rs. 9,500/- was advanced as loan by Ms. Minaxi Bhageria.

Thus, Rs. 9,500/- and Rs. 8,000/- could not have been adjusted against the loan advanced by the appellant to defendant No. 2.

We note that Rs. 5,000/- and Rs. 2,160/- represented the interest which was payable on the loan amount. We also note that @ 3%, per month the interest is usurious. We are of the opinion that the appellant would be entitled to a decree in sum of Rs. 24,000/- with interest @ 12% per annum reckoned with effect from 3 months prior to the date of suit.

Noting that the suit was filed on 24.5.1989, we grant interest to the appellant on Rs. 24,000/- with effect from 24.5.1986 till realization.

The appeal is allowed. Impugned judgment and decree dated 22.01.1993 is set aside. Suit filed by the appellant is decreed against defendant No. 2 in sum of Rs. 24,000/-(Rupees Twenty Four Thousand Only) with interest @ 12 % per annum with effect from 12.5.1986 till realization. The appellant shall be entitled to propionate cost all throughout.