Delhi District Court
Mrs. Mrinalini Goyal vs Ravinder Kumar Gupta on 27 February, 2015
Civil Suit No. 127/10
IN THE COURT OF MS. PREETI AGRAWAL GUPTA
ADDITIONAL DISTRICT JUDGE (CENTRAL)-10, DELHI.
Civil Suit No.: 127/10.
Unique Case ID No. 02401C0494002010.
Mrs. Mrinalini Goyal
W/o. Late Sh. S. D. Goyal
R/o. 10-A, Utkarsh Aptt.,
Civil Lines, Delhi. ...............Plaintiff
Versus
Ravinder Kumar Gupta
Proprietor of M/s. Pratik Investments
R/o.A-230, New Friends Colony,
New Delhi-110065. ............Defendant
Date of institution of the suit : 28.10.2010
Reserved for judgment on : 19.02.2015.
Date of pronouncement of judgment : 27.02.2015.
JUDGMENT
01. A suit for recovery of Rs.4,68,510/- under the provisions of Order XXXVII of CPC has been filed by the plaintiff against the defendant.
02. Upon service of summons for appearance under Order 37 (2) of CPC upon the defendant, the appearance was filed within time. Thereupon, the defendant was served with summons for judgment to which the application for leave to defend was also filed within the stipulated period as per law.
03. After reply was filed by the plaintiff to the application for leave to defend, upon arguments, the application was Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 1 of 25 Civil Suit No. 127/10 disposed of vide order dated 29.03.2011 conditionally. Vide directions of the court, defendant was granted a conditional leave to defend the suit on deposit in the court of a sum of Rs. 3,00,000/- to the plaintiff or by way of voucher.
04. Subsequently, defendant filed series of applications for modification, review and clarification on the conditions imposed by the court here-above mentioned. The defendant was directed to strictly comply with the conditions upon which he confirmed by way of an application after depositing the conditional Rs.3,00,000/- with the Treasury in compliance of the conditions for grant of leave to defend.
05. Hence, the present suit of the plaintiff has proceeded on trial for adjudication of the claim of recovery against the defendant. It is the case of the plaintiff that initially on 22.10.1999 defendant borrowed a sum of Rs.1,50,000/- on interest vide cheque no.336302 drawn on Bank of India, New Delhi. Subsequent thereto, defendant further took money from the plaintiff on interest @18% per annum and plaintiff has paid the same to the defendant from time to time. The money was lend by the plaintiff to the defendant @18% per annum upto the financial year 2002-2003. During the passage of time defendant used to pay the interest as well as part payment of the amount time to time for which defendant used to issue a balance confirmation certificate to the plaintiff. Subsequently w.e.f. Financial year 2004 onwards the rate of interest was reduced to the tune of 10.5% per annum. It is case of the plaintiff that as per the last statement of account/confirmation of due signed and issued by the defendant for the financial year 2005-2006, defendant has admitted the liability to pay the sum of Rs.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 2 of 25 Civil Suit No. 127/1013,00,690/-. It is case of the plaintiff that as per the statement of account for the financial year 2005-2006, the liability of the defendant comes to Rs.4,65,210/- as on 30.09.2010.
06. It is averred in the plaint that there was repeated give and take between the parties and that defendant has further paid the sum of Rs.50,000/- on 29.11.2006 vide Cheque no.191134 drawn on Oriental Bank of Commerce and again received sum of Rs.2,75,000/- on 06.12.2006 from the plaintiff vide Cheque no. 074189 drawn on Bank of India. Defendant has further paid the sum of Rs.15,000/- on 06.11.2007, Rs.14,00,000/- on 11.02.2008 and Rs.50,000/- on 10.10.2008 all the payments were made by the plaintiff to the defendant through cheques and all the cheques were drawn on Oriental Bank of Commerce.
07. It is claimed that defendant has failed to pay interest on the amount in question for the period w.e.f. 01.04.2006 onwards, for which forthwith a legal demand notice dated 14.09.2010 was served upon the defendant but the defendant failed to comply with the same. It is case of the plaintiff that the defendant is liable to pay interest @10.5% per annum upon Rs. 13,00,690/- which was due as on 01.04.2006 claiming the entitlement to receive the sum of Rs.4,65,210/- plus Rs.3,300/- as demand notice charges, totaling to Rs.4,68,510/-.
08. Written statement was filed by the defendant wherein preliminary objection was raised upon the aspect of proper verification of the affidavit filed by the plaintiff in support of the plaint. Further objections have been taken to the maintainability of the present suit in the eyes of law. It is also claimed that the suit is barred by limitation. On merits, it is not denied that the defendant took a loan of Rs.1,50,000/- from the plaintiff.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 3 of 25 Civil Suit No. 127/10However, defendant denied the alleged liability to pay interest @18% per annum. It is case of the defendant that plaintiff was entitled, as per law, to simple interest @12.5% per annum. Defendant also denied the claim of the plaintiff about his right to charge compound interest. It is averred in the written statement that in January, 2008, the defendant represented to the plaintiff that she had charged interest at exorbitant rate and that she was also charging compound interest. The negotiations were held between the parties and it was finally agreed that the defendant pay a sum of Rs.13,00,690/- within two years without payment of interest in full and final settlement of dues. It was further agreed that if the defendant paid the said amount, he would not be liable to pay any interest thereon. The said amount was paid and all the claims of the plaintiff stood finally settled. Rest of the contents of the plaint are also denied.
09. Replication filed by the plaintiff to the written statement of defendant wherein contents of the written statement are denied and averments made in the plaint are reiterated and affirmed. It is stated that there was a specific contract of the parties of the suit for the payment of compound interest @18% per annum and thereafter modified interest. It is case of the plaintiff that suit of the plaintiff was within limitation and discloses a good cause of action in his favour.
10. On the basis of pleadings, the following issues were framed by the court's order dated 12.04.2012 for adjudication which are as under:-
1. Whether the suit is filed within the period of limitation ? OPP.
2. Whether the suit for recovery of interest alone is not Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 4 of 25 Civil Suit No. 127/10 maintainable and the loan transaction between the parties is otherwise liable to be re-open u/s 3 of the Usurious Loans Act? OPD.
3. Whether the plaintiff is entitled to recover the suit amount with interest ? OPP.
4. Relief.
11. To prove its case, plaintiff examined herself as PW-1 who tendered her evidence by way of affidavit. She relied upon documents Ex.PW1/1 to Ex.PW1/6 and Ex.PW1/8 to Ex.PW1/13. Plaintiff tendered statements of accounts maintained by the defendant in respect of the plaintiff for the year 1999-2000 as Ex.PW1/1, 2000-2001 as Ex.PW1/2, 2001-2002 as Ex.PW1/3, 2002-2003 as Ex.PW1/4, 2003-2004 as Ex.PW1/5, 2004-2005 as Ex.PW1/6. Copy of ITRs for the assessment years 2001-2002 as Ex.PW1/8, 2002-2003 as Ex.PW1/9, 2003-2004 as Ex.PW1/10, 2004-2005 as Ex.PW1/11, 2005-2006 as Ex.PW1/12 and 2007-2008 as Ex.PW1/13. The original of Statement of account Ex.PW1/7 was de-exhibited as not available with the witness and marked as Mark 'A'. As such, there is no physical marking on the document on the record but same being clerical mistake, is deemed marked. She was cross examined at length by ld. counsel for the defendant. PW-1/plaintiff failed to disclose the total amount advanced by her to the defendant. She failed to admit or deny the suggestion that the interest @12% per annum was being charged upon the loan advanced to the defendant. She denied any meeting with the defendant in January 2008 and denied the knowledge of any settlement for a sum of Rs.15,10,690/- in discharge of the entire Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 5 of 25 Civil Suit No. 127/10 loan liability of the defendant. She denied that any excess interest was charged from the defendant or that no further amount was due against him.
12. In defence evidence, defendant examined himself as DW1 whereby the averments in the written statement were reiterated deposing that the defendant had borrowed money from the plaintiff at simple interest @12.5% per annum. DW-1 denied any liability to pay compound interest. He improved upon his case about repayment of sum of Rs.15,10,690/- to the plaintiff, from the averments in the written statement wherein the payment of settlement amount of Rs.13,00,690/- has been averred. DW-1 has deposed that the entire loan disposed of in full and final settlement claiming that besides the cheques of Rs. 14,00,000/- and Rs.50,000/- admitted by the plaintiff, he also paid a cash of Rs.60,690/- to the plaintiff. In cross examination, DW-1 admitted that initially the plaintiff charged interest @18% per annum till 2006-2007 and subsequently rate of interest @10.5% was charged. DW-1 denied the suggestion, during cross examination, that no settlement was arrived at with the plaintiff about interest or loan. Witness was cross examined in respect of his ITRs wherein he admitted that no paid interest was reflected in his ITRs. The sanctity of ITRs in absence of the annexures has been questioned to which DW-1 has answered in denial that the annexures of ITRs were not filed due to material concealment. DW-1 admitted his signatures on Ex.PW1/1 to Ex.PW1/6 which are statements of accounts maintained by defendant in respect of loan account of the plaintiff. DW-1 failed to disclose any specific time or period when he claimed settlement or arrived at settlement with the plaintiff. Besides plaintiff and defendant Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 6 of 25 Civil Suit No. 127/10 themselves, the parties did not examine any other witness and their respective evidences are thus recorded as above.
13. The arguments addressed by ld. counsels have been heard and appreciated in the light of facts of the case, averments in the respective pleadings and documents on the record. The authorities relied upon and the law relevant to the facts of the case and legal issues involved have been duly appreciated. Issue-wise findings of the court are as under:-
Issue no.1.
Whether the suit is filed within the period of limitation ? OPP.
14. The onus to prove this issue was upon the plaintiff. The plaintiff has filed the present suit on 28.10.2010. The case of the plaintiff is based upon friendly loan transactions with the defendant spread from 22.11.1999 to 06.12.2006. A preliminary objection has been taken by the defendant that the suit was filed beyond limitation.
15. The court shall restrict itself to adjudicate the issue without going through unnecessary details. It is the case averred in the plaint that the defendant has paid a sum of Rs.50,000/- to the plaintiff on 10.10.2008. In this respect the written statement of the defendant has been appreciated wherein the bald denial of the contents of the plaint has been made. However, it has been averred in the written statement of the defendant about the talks between plaintiff and defendant in January 2008 pertaining to the full and final settlement of dues with the plaintiff, which is denied by the plaintiff. Nevertheless, it is not denied by defendant that he made a payment of Rs.50,000/- to the plaintiff on 10.10.2008.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 7 of 25 Civil Suit No. 127/10The defendant has also claimed payment of Rs.60,690/- in his evidence but the mode and date of payment has not been specified. Therefore, the last exchange of payment admitted and duly proved on the record between the parties is the payment of Rs.50,000/- paid by the defendant to the plaintiff on 10.10.2008. The last payment of Rs.60,690/- claimed to have been paid to the plaintiff by the defendant towards the balance settlement amount is though not admitted, it is not denied or challenged by way of cross examination of DW1.
16. The court has duly appreciated the statement of accounts and documents filed on the record. It is admitted case of the defendant that there were continuous transactions between plaintiff and the defendant. It is undisputed law of land as per provisions under Item no.1 in PART I and Item no.23 in PART II of the Schedule of The Limitation Act, 1963 that in case of continuous transactions/payments between the parties, the period of limitation is to be reckoned from the last transaction/payment. It is duly brought forthwith on record that the last proved admitted payment from the defendant to the plaintiff was on 10.10.2008 and further a payment of Rs.60,690/- in cash was also made by the defendant. Even otherwise, it is the defendant's case himself that money exchanged hands towards repayment by defendant in favour of the plaintiff after January 2008. Therefore, computing the period of limitation from any of these dates of transactions, whether it is January 2008 or October 2008 or day of last payment, in cash, by defendant, the suit has been filed by the plaintiff within limitation. Issue no.2.
Whether the suit for recovery of interest alone Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 8 of 25 Civil Suit No. 127/10 is not maintainable and the loan transaction between the parties is otherwise liable to be re-open u/s 3 of The Usurious Loans Act ? OPD.
17. The onus to prove this issue was upon the defendant. The defendant has raised legal objection to the maintainability of the suit on the ground that full and final settlement had been arrived at with the plaintiff after talks in January 2008. This fact is outrightly denied by the plaintiff, though, plaintiff has admitted substantial payment by the defendant in his favour towards repayment of loan in the financial year 2007-2008 by way of payment of Rs.15,000/- on 06.11.2007, Rs.14,00,000/- on 11.11.2008 and payment of Rs.50,000/- in the subsequent financial year, on 10.10.2008. PW-1 has tendered statement of accounts of the defendant in respect of account statement of loan by the plaintiff for the period from 22.10.1999 to 31.03.2005 vide Ex.PW1/1 to Ex.PW1/6. He has also tendered ITRs for the assessment year 2001 to 2008 excepting for the assessment year 2006-2007, with annexures as Ex.PW1/8 to Ex.PW1/13.
18. Ex.PW1/1 to Ex.PW1/6 are admitted documents by the defendant and are duly proved. Without going into further details of the accounts between the parties, while adjudicating this issue, it is clear that there was stipulation of payment of interest by the defendant to the plaintiff against the amount granted in his favour as loan from the plaintiff. The admitted statement of accounts also show that some payments were being made by the defendant towards the running account against the loan taken by him from the plaintiff. The defendant has challenged the loan transaction between the parties as being hit by Section 3 of The Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 9 of 25 Civil Suit No. 127/10 Usurious Loans Act on the ground that the stipulated interest being charged by the plaintiff was unfair and exorbitant.
19. It is the case of the plaintiff that there was an understanding of 18% compound interest payable by the defendant to the plaintiff and subsequently the same was reduced to 10.5% per annum w.e.f. Financial year 2004 onwards. Again, without discussing whether the plaintiff has proved the entitlement to receive the interest at the claimed rate, the defendant has not been able to discharge the onus to show that there was any unfairness of transactions or that there was any undue pressure or that defendant in any manner was in a position inferior to the plaintiff to succumb to his pressures for taking the loan on exorbitant rates of interest. On the contrary, the defendant continued to obtain timely loans and as per record, the last loan given by the plaintiff to the defendant was by way of cheque for an amount of Rs.2,75,000/- on 06.12.2006. This amount forms part of the statement of account for the financial year 2006-2007 annexed with the ITR Ex.PW1/13 and disputed by defendant but the fact of disbursement of last loan of Rs. 2,75,000/- on 06.12.2006 by the plaintiff in favour of the defendant, is not denied.
20. The court has also examined the objection of the defendant that suit for recovery of interest alone is not maintainable. Defendant has failed to bring any legal impediment in making the such claim by the plaintiff. On the contrary, as per the schedule of The Limitation Act, 1963, it is explicitly provided in item no.25 of PART II of the heading "Suits relating to contracts" of the schedule about the legal entitlement of claiming interest upon the money due from the defendant to Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 10 of 25 Civil Suit No. 127/10 the plaintiff. The defendant has not been able to show that the suit is barred by any law of the land. For the foregoing reasons and facts, this issue is decided in favour of the plaintiff and against the defendant.
Issue no.3.
Whether the plaintiff is entitled to recover the suit amount with interest ? OPP.
21. As regard this issue being the main issue of the suit, it is first relevant and necessary to consider the relevance of the objection of the defendant in respect of the alleged verification defect of the affidavit of the plaintiff on the application for issuance of summons for jugement under Order XXXVII Rule 3 (4) of CPC. During pendency of the suit, curative affidavit of the plaintiff was filed to take care of the objection of the defendant. However, it was the case of the defendant that the verification in the curative affidavit is also defective and hence, there was no affidavit against the defendant. It is prayed by the defendant that in absence of the properly verified affidavit, there is no suit against the defendant. The court vide its order dated 19.11.2011 has categorically observed that the plaint can not be rejected drastically for want of technical requirements and the parties can not continue to harp upon the same issue of procedure. It has already observed that the procedural requirement of filing of the application with affidavit for issuance of summons for judgment under Order XXXVII Rule 3 (4) of CPC are meant for promotion of justice.
22. During course of final arguments, contentions and cross contentions on the aspect have been addressed and Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 11 of 25 Civil Suit No. 127/10 appreciated. The law cited by both the sides have already been appreciated. It is necessary and appropriate for the court to observe that the courts of India have legally evolved and progressed so as to take into account the practicality so as to take a pragmatic view and pass such orders may be expedient, towards the upholding of rule of equity and justice. As relied upon by the plaintiff, our own Hon'ble High Court of Delhi has been pleased to hold in citation 204 (2013) DELHI LAW TIMES 260 titled as Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu "Defects of signing and verification of plaint cannot be fatal and are curable" .
The technical defence in the pleadings should not affect root of the matter and the sole purpose of codified and evolved law is to chaff away the unnecessary technical approach to promote the interest of justice. The defects pointed out in the verification para of the affidavit accompanying the application of the plaintiff and thereafter if any, in his curative affidavit filed by the plaintiff are only cosmetic shall have no bearing on the merits of the case. Even otherwise, the sole purpose of filing of affidavit with summons for judgment application under Order 37 Rule 3 (4) of CPC is for issuance of the summons for judgment upon the defendant. Thereafter, the application for leave to defend has already been filed by the defendant and also allowed by the court subject to the conditions therein and hence the suit has come up before the court for final disposal after completion of trial of the case. These considerations are therefore, not only unnecessary but also irrelevant particularly when the parties have adduced their respective evidence and the case is at the stage of appreciation on merits.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 12 of 25 Civil Suit No. 127/1023. The court shall now examine the entitlement of the plaintiff to recover the suit amount with interest. By way of this suit, plaintiff is claiming the entitlement to recover a sum of Rs. 4,65,210/- against the defendant based upon the admission that the defendant has already paid the principal of the loan taken by him from the plaintiff and that he is entitled to pay the interest accrued thereupon for the period when the loan amount was retained by him. Plaintiff has also claimed interest upon the recoverable interest from the date of filing of the suit. The plaintiff has examined herself as PW-1 in support of averments in the plaint and has tendered documents stated to be statements of accounts maintained by the defendant in respect of loan disbursed by the plaintiff, for the financial year 1999-2000 as Ex.PW1/1, 2000-2001 as Ex.PW1/2, 2001-2002 as Ex.PW1/3, 2002-2003 as Ex.PW1/4, 2003-2004 as Ex.PW1/5, 2004-2005 as Ex.PW1/6. Copy of ITRs for the assessment years 2001-2002 as Ex.PW1/8, 2002-2003 as Ex.PW1/9, 2003-2004 as Ex.PW1/10, 2004-2005 as Ex.PW1/11, 2005-2006 as Ex.PW1/12 and 2007-2008 as Ex.PW1/13. PW-1 has duly proved statement of accounts from 1999-2000 to 2004-2005. Plaintiff had also sought to rely upon the the statement of account for the period 01.04.2005 to 31.03.2006 but the same was de-exhibited as the plaintiff failed to file the original thereof and finds part of record as Mark A. Further-more, the ITRs of the plaintiff for the assessment years 2001-2002 as Ex.PW1/8, 2002-2003 as Ex.PW1/9, 2003-2004 as Ex.PW1/10, 2004-2005 as Ex.PW1/11, 2005-2006 as Ex.PW1/12 and 2007-2008 as Ex.PW1/13 are not challenged by the defendant. PW1 has been cross examined on the aspect of annexures filed with the ITRs. PW-1 has also been Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 13 of 25 Civil Suit No. 127/10 cross examined regarding the alleged rate of interest at 18% per annum initially and thereafter, 10.5 % per annum. She has been cross examined as PW-1. PW-1 failed to give conclusive answer to the suggestion that she was not entitled to claim compound interest from the defendant. PW-1 has categorically denied the case of the defendant that the entire amount due and payable by the defendant has been paid to the plaintiff, in discharge of the entire loan liability with accrued interest.
24. The evidence of DW1 has also been appreciated. DW-1 has stated in his chief examination that he has paid a sum of Rs.15,10,0692/- to the plaintiff after full and final settlement arrived at in January 2008 and that no further amount is due towards the plaintiff. In cross examination, DW-1 has admitted that plaintiff had initially charged compound interest @ 18% per annum from him and subsequently w.e.f. 2006-2007, rate of interest @ 10.5% per annum was charged. He re-testified that there were discussions and settlement with the plaintiff in full and final about the loan and the interest. DW-1 further cross examined at length about the ITRs for the last six financial years. DW-1 failed to answer about the balance sheets and accounts maintained by his CA in respect of the creditors and debtors of the defendant. DW-1 denied that he had deliberately concealed the details of his ITRs and books of accounts. DW-1 specifically admitted his signatures at Point X on the documents Ex.PW1/1 to Ex.PW1/6 which are his own statements of accounts for the financial years 1999-2000 to 2004 - 2005 in respect of the loan transactions with the plaintiff. He has, as such denied his liability in the suit.
25. After due consideration of the documents on the Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 14 of 25 Civil Suit No. 127/10 record in light of the evidence recorded, it is undisputed and proved that friendly loan was given by the plaintiff to the defendant and that the first loan given by the plaintiff to the defendant was in the year 1999 for a sum of Rs.1,50,000/-. The duly proved statement of accounts Ex.PW1/1 to Ex.PW1/6 clearly reflect that there were regular ongoing transactions of give and take between plaintiff and defendant and that the amount exchanged hands between the parties primarily by cheques, neither of which are disputed or challenged by the other side. Therefore, the last admitted statement of account filed for the year 2004-2005 shows the credit balance of Rs.8,45,360/-, payable by the defendant in favour of the plaintiff. It is also considered that it is case of the defendant himself that a substantial sum of money exchanged hands between the parties to the suit. The substantial last two payments in this regard are for a sum of Rs.14,00,000/- and Rs.50,000/- paid by the defendant in favour of the plaintiff on 11.02.2008 and 10.10.2008 respectively (besides Rs.15,000/- on 06.11.2007). These payments have been averred in the plaint and not denied by the defendant. The only case put forth by the defendant is that the payment made to the plaintiff after January 2008 were in full and final settlement of all dues against the principal and interest. This fact is outrightly denied by the plaintiff. The defendant has claimed that he paid Rs.60,690/- in cash to the plaintiff after January 2008 in addition to the aforesaid amounts paid by cheque of Rs.14,00,000/- and Rs.50,000/-. The said amount of alleged cash payment of Rs.60,690/- claimed by the defendant is not supported by any documents, statement of account or receipt issued in this regard. However, it is not denied to have been Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 15 of 25 Civil Suit No. 127/10 received by the plaintiff, either in cross examination of DW1 or in any other manner. It is also relevant that the present suit has been filed by the plaintiff claiming the right to recover interest on the amount due as on 01.04.2006 to the tune of Rs.13,00,690/-. It is not the case of the plaintiff that any principal amount is balance or recoverable against the defendant. It is also worth mentioning that as per accounts statements of financial year 2006-2007 of the defendant, as annexure to Ex.PW1/13, a balance credit is shown as Rs.15,25,690/- in favour of plaintiff.
26. In this regard, it is also important to observe that the statement of account Ex.PW1/1 to Ex.PW1/6 only show the balance confirmation of the carry forward balance upto 31.03.2005 as admitted by the defendant. The balance shown in subsequent statement of account are not admitted by the defendant. However, it is case of the defendant himself that he made the payments to the tune of Rs.15,10,690/- in due discharge of all his liabilities. The receipt of amount is not denied by the plaintiff. On the contrary, it is the case of the plaintiff that the defendant has also paid another sum of Rs.15,000/- on 06.11.2007 which makes the total amount admittedly paid by the defendant to the plaintiff, after the year 2006 as Rs.15,25,690/-. However, plaintiff has denied that any full and final settlement was arrived at with the defendant or that there is any due and payable interest in favour of plaintiff.
27. Therefore, it is clear that there was subsequent transactions between the parties even after 31.03.2005 (last date of admitted statement of accounts Ex.PW1/6), otherwise there would have been no occasion/question of payment of an amount of Rs.14,65,000/- as stated by the plaintiff or Rs.15,10,690/- as Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 16 of 25 Civil Suit No. 127/10 stated by the defendant after 31.03.2005. As discussed after examining the case of both the parties, it is proved on record that a total sum of Rs.15,25,690/-, infact, was paid by the defendant to the plaintiff by way of part payments made on 06.11.2007, 11.02.2008, 10.10.2008 and lastly of amount of Rs.65,690/- for which date is not disclosed but the payment is claimed and proved.
28. The court has to rely upon the material available on the record and the believable depositions of the parties that appeal to the court as reasonable and believable, after examining the facts and claims, relying upon preponderance of probabilities. Besides the admitted statement of accounts, from the financial year 1999-2000 to 2004 - 2005, court finds mark A also worthy of credit and belief, despite that fact that the original thereof has not been produced. The copy of statement of account of financial year 2005-2006 reveals that credit balance of Rs.13,00,690/- shown due upon the defendant and payable in favour of the plaintiff has been supported by another documents which is statement of account of financial year 2006-2007 filed as annexure to Ex.PW1/13 which is ITR return for the assessment year 2007-2008. The carry forward balance as on 01.04.2006 is shown to be Rs.13,00,690/-, in the statement of account of financial year 2006-2007. Thereafter, a cheque of Rs.50,000/- dated 29.11.2006 has been by paid by the defendant in favour of the plaintiff and a cheque of Rs.2,75,000/- has been paid by the plaintiff in favour of the defendant on 06.12.2006. Neither of these payments by cheque are denied by either the plaintiff or the defendant, against each other. If these payments have been made, there is no reason for the court to disbelieve the statement Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 17 of 25 Civil Suit No. 127/10 of account of the financial year 01.04.2006 to 31.03.2007 wherein there is no other transaction between the parties except the carry forward balance and the final balance.
29. In view of these reasons, the statement of account, as deemed proved for the amount paid by the plaintiff to the defendant, are detailed as under :-
Period / Details of Amount Document
Financial payment of loan exhibited/
Year (from plaintiff to Marked
defendant)
22.10.1999 to 22.10.1999 Rs.1,50,000/- Ex.PW1/1
31.03.2000 By Ch. 336302-BOI
01.04.2000 to 24.11.2000 Rs.1,00,000/- Ex.PW1/2
31.03.2001 By Ch.262002-BOI
01.04.2001 to Nil Only previous Ex.PW1/3
31.03.2002 Loan
01.04.2002 to 24.09.2002 Rs.1,30,000/- Ex.PW1/4
31.03.2003 By Ch.422635-BOI
01.04.2003 to 17.10.2003 Rs.4,65,000/- Ex.PW1/5
31.03.2004 By Ch.446714-BOI
01.04.2004 to Nil Only previous Ex.PW1/6
31.03.2005 Loan
01.04.2005 to 02.05.2005 Rs.40,000/- Mark A
31.03.2006 By Ch.001379-BOI
-do- 18.07.2005 Rs.3,11,575/- Mark A
By Ch.009265-BOI
01.04.2006 to 06.12.2006 Rs.2,75,000/- Ex.PW1/13
31.03.2007 By Ch.074189-BOI Annexure
30. Likewise, the statement of account, as deemed proved for the amount paid by the defendant to the plaintiff, are detailed as under :-
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 18 of 25 Civil Suit No. 127/10 Period/ Details of Amount Document
Financial payment exhibited /
Year (from defendant Marked
to plaintiff)
22.10.1999 to Nil Ex.PW1/1
31.03.2000
01.04.2000 to 15.02.2001 Rs.80,000/- Ex.PW1/2
31.03.2001 To Ch.685258-CTB
-do- 22.03.2001 Rs.65,000/- -do-
To Ch.032978-OBC
01.04.2001 to 07.03.2002 Rs.40,000/- Ex.PW1/3
31.03.2002 To Ch.585345-OBC
01.04.2002 to 11.03.2003 Rs.10,000/- Ex.PW1/4
31.03.2003 To Ch.416306-OBC
01.04.2003 to Nil Ex.PW1/5
31.03.2004
01.04.2004 to 19.03.2005 Rs.40,000/- Ex.PW1/6
31.03.2005 To Ch.488463-OBC
01.04.2005 to Nil Mark A
31.03.2006
01.04.2006 to 29.11.2006 Rs.50,000/- Ex.PW1/13
31.03.2007 To Ch.191134-OBC Annexure
After January Cash Rs.60,690/- Nil document.
2008 Deposition of
DW-1
31. The above statements of accounts clearly reflect that a total sum of Rs.14,71,575/- has been paid by the plaintiff to the defendant w.e.f.22.10.1999 to 06.12.2006, by way of cheques. It is admitted case of both the parties that the payments were made by the plaintiff to the defendant as loan transactions to the defendant. There have been part payments by defendant towards loan account of the plaintiff from the financial year 1999-2000 to financial year 2006-2007 and these payments by Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 19 of 25 Civil Suit No. 127/10 the defendant stands reflected and adjusted in the balance confirmation certificates/statements maintained by the defendant himself whereby carry forward balance has been shown in respect of the previous financial year as the opening entry of the subsequent financial year.
32. It is further case of the plaintiff that defendant has repaid sums of Rs.15,000/- on 06.11.2007, Rs.14,00,000/- on 11.02.2008 and Rs.50,000/- on 10.10.2008 totaling to Rs. 14,65,000/-. The claimed amounts of cash payment of Rs. 60,690/- after January 2008, as claimed by the defendant, is duly proved in terms of the above detailed discussions. Detailed and careful perusal of the transaction between the parties make it reasonable and prudent for the court to hold that the last two business transactions between the parties were, by way of payment of Rs.50,000/- by the defendant by way of cheque dated 29.11.2006 in favour of the plaintiff and the last payment by the plaintiff by way of loan to the defendant was by way of cheque dated 06.12.2006 for amount of Rs.2,75,000/-. Therefore, the amounts paid by the defendant in favour of the plaintiff for Rs. 15,000/- on 06.11.2007, Rs.14,00,000/- on 11.02.2008 and Rs. 50,000/- on 10.10.2008 and another sum of Rs.60,690/- in cash (totaling to Rs.15,25,690/-) are towards the discharge of liabilities of the defendant towards the plaintiff, after the business transactions pertaining to give and take of loan between the parties ceased.
33. Hence, it is proved that a total sum of Rs.14,71,575/- has been paid by the plaintiff as loan to the defendant during the period from 22.10.1999 to 06.12.2006. Neither of the parties have been able to conclusively prove as to how much interest Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 20 of 25 Civil Suit No. 127/10 was liable to be paid by the defendant against which loan amount advanced by the plaintiff in favour of the defendant. It is also brought forth that during the course of business, there were talks between the parties for reducing the rate of interest. A careful appreciation of statements of accounts reveals that there were charges of interest upon the credit forward balance which included the balance unpaid interest and principal of the previous financial year and this procedure continued upto the financial year 2006. This fact is reflected from the admitted statements of accounts of the defendant himself vide Ex.PW1/1 to Ex.PW1/6.
34. It is also clear that during the course of business, the defendant realised that the excessive and exorbitant interest was being charged by the plaintiff and therefore, the subsequent periods w.e.f. 2006-2007, parties agreed at a lesser rate of interest which is stated to be 10.5% per annum. No document has been proved to show any understanding between the parties for payment of compound interest. The acknowledgment of interest payable on the interest amount included in carried forward balance of the previous year in the admitted statements of accounts of the defendant Ex.PW1/1 to Ex.PW1/6 can not be deemed to be an admission against the defendant as there were continuous business transactions between the plaintiff and defendant. As discussed, the last business transaction between the plaintiff and the defendant was the payment of loan of Rs. 2,75,000/- by the plaintiff to the defendant by way of cheque dated 06.12.2006 as reflected in the statement of account for the financial year 2006-2007 which is found annexed with Ex.PW1/13. This statement of account is not admitted by the defendant and is disputed. The proved facts remain that the two transactions Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 21 of 25 Civil Suit No. 127/10 dated 29.11.2006 by way of cheque for an amount of Rs.50,000/- paid by defendant to the plaintiff and dated 06.12.2006 for an amount of Rs.2,75,000/- paid by the plaintiff to the defendant, are not denied by the defendant. The statement of account for the financial year 2006-2007 annexed in Ex.PW1/13, hence inspires confidence of the court.
35. After duly considering the payments and repayments between the parties, it is proved that there was a credit balance of Rs.15,25,390/- as on 01.04.2007 due and payable in favour of the plaintiff and against the defendant. It is also proved that the defendant has repaid an amount in the sum of Rs.15,25,390/- by way of part payments w.e.f. 06.11.2007 to 10.10.2008 and another undated payment of Rs.60,690/-, within the financial year 2007-2008. It has not been proved that there was any express or implied contract for rate of chargeable interest and nature of chargeable interest as simple or compound. The claim of the defendant that full and final settlement of dues and claims between the parties was entered in or around January 2008 is not substantiated by any supporting evidence except his sole disputed deposition. Therefore, the court has to make such calculations so that to uphold the rule of equity and fair play so that neither of the parties are put to a disadvantageous position and the balance of convenience and rule of equity is maintained. As reflected from the discussions here-above, in absence of any specific or implied business agreement proved to show the agreed rate of interest between the parties, it shall be appropriate to allow an interest @12% per annum for the period for which the interest is unpaid. The plaintiff is, accordingly, entitled to a Decree for recovery of the unpaid interest upon Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 22 of 25 Civil Suit No. 127/10 outstanding dues against the defendant as under:-
principal amount upon Period Interest
which plaintiff is granted
entitled for interest to the
plaintiff.
From To
1. Rs. 15,25,690/- 01.04.2007 05.11.2007
Rs.15,000/- paid by
defendant on 06.11.2007
2. Rs. 15,10,690/- 06.11.2007 10.02.2008 @12%
p.a.
Rs.14,00,000/- paid by
defendant on 11.02.08.
3. Rs. 1,10,690/- 11.02.2008 09.10.2008
Rs.50,000/- paid by
defendant on 10.10.2008.
4. Rs.60,690/- 10.10.2008 31.03.2009
*
* Date of payment not specified but fact of payment before 31.03.2009 proved by the defendant. Hence, period of chargeable interest computed at the end of the relevant financial year.
36. The plaintiff shall be entitled to a Decree for recovery of unpaid interest, as per tabulated calculations given herein- above against the defendant @ 12% per annum simple interest. Plaintiff shall further be entitled to recover a simple interest @12% per annum w.e.f.01.04.2009 upon the amounts so calculated as unpaid interest, till the date of realisation of the Decreetal amount.
In view of the above findings, issue no.3 is disposed of accordingly.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 23 of 25 Civil Suit No. 127/10Issue no.4.
Relief.
37. In view of the above findings, plaintiff is, entitled to a Decree for Recovery of the unpaid interest upon outstanding dues against the defendant as under:-
principal amount upon Period Interest
which plaintiff is entitled granted
for interest to the
plaintiff.
From To
1. Rs. 15,25,690/- 01.04.2007 05.11.2007
Rs.15,000/- paid by defendant
on 06.11.2007
2. Rs. 15,10,690/- 06.11.2007 10.02.2008
@12% p.a.
Rs.14,00,000/- paid by
defendant on 11.02.08.
3. Rs. 1,10,690/- 11.02.2008 09.10.2008
Rs.50,000/- paid by defendant
on 10.10.2008.
4. Rs.60,690/- 10.10.2008 31.03.2009*
* Date of payment not specified but fact of payment before 31.03.2009 proved by the defendant. Hence, period of chargeable interest computed at the end of the relevant financial year.
38. The plaintiff shall be entitled to a Decree for Recovery of unpaid interest, as per tabulated calculations given herein- above against the defendant @ 12% per annum simple interest. Plaintiff shall further be entitled to recover a simple interest @12% per annum w.e.f.01.04.2009 upon the amounts so calculated as unpaid interest, till the date of realisation of the Decreetal amount.
Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 24 of 25 Civil Suit No. 127/1039. The amount of Rs.3,00,000/- deposited by the defendant with the court is liable to be adjusted as per the Decree. The plaintiff shall submit the calculation chart, as per Decree, along with an application for withdrawal of the amount deposited by the defendant in the court. In case of any balance recovery, plaintiff may take appropriate steps, as per law.
40. The amount deposited, if found excess in satisfaction of the Decree, shall be returned to the defendant, on proper application in this regard.
41. Parties to bear their respective costs of the suit. Plaintiff shall also be entitled to recover half of the court fees paid by him as costs of the suit from the defendant.
42. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today on 27.02.2015 (Preeti Agrawal Gupta) ADJ/Central-10, Tis Hazari Courts, Delhi 27.02.2015 Mrs. Mrinalini Goyal Vs. Ravinder Kumar Gupta Page 25 of 25