Delhi District Court
M/S. S. D. Goyal & Sons (Huf) vs Priyanka Gupta on 3 March, 2015
Civil Suit No. 128/10
IN THE COURT OF MS. PREETI AGRAWAL GUPTA
ADDITIONAL DISTRICT JUDGE(CENTRAL)10:DELHI.
Civil Suit No.: 128/10
M/s. S. D. Goyal & Sons (HUF)
R/o. 10A, Utkarsh Aptt.,
Civil Lines, Delhi. ...............Plaintiff
Versus
Priyanka Gupta
W/o Kapil Aggarwal
D/o P.K.Gupta
R/o 18, Yamuna Road
Civil Lines, Delhi. ............Defendant
Date of institution of the suit : 28.10.2010
Reserved for judgment on : 19.02.2015.
Date of pronouncement of judgment : 03.03.2015.
JUDGMENT
01. A suit for recovery of Rs. 3,75,090/ under the provisions of Order XXXVII of CPC has been filed by the plaintiff against the defendant.
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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 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 payment of Rs. 1,00,000/ to the plaintiff or deposit in the court by way of voucher.
04. Subsequently, defendant filed series of applications for modification, review and clarification on the conditions imposed by the court hereinabovementioned. The defendant was directed to strictly comply with the conditions upon which his application for leave to defend was allowed. Thereafter the defendant deposited the additional amount of Rs. 1,00,000/ with the court by way of deposit in the treasury.
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 22.08.2000 defendant borrowed a sum M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 2 of 31 Civil Suit No. 128/10 of Rs.1,50,000/ on interest vide cheque no.339085 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 landed by the plaintiff to the defendant @18% per annum upto the financial year 20022003. During the passage of time defendant used to pay the interest as well as part payment of the amount from 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 15% per annum and w.e.f. 01.04.2015 @ 16.5%.
06. 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 20052006, defendant has admitted the liability to pay the sum of Rs. 7,00,423/ and as per the statement of account for the financial year 20052006, the liability of the defendant comes to Rs. 3,71,790/ as on 30.09.2010. 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. 6,00,000/ on 11.02.2008 vide Cheque no. 175902 and Rs. 1,00,423/ on 16.05.2008 vide Cheque no. 175914, both drawn on Oriental Bank of Commerce.
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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 @ 16.5% per annum upon Rs. 7,00,423/ which was due as on 01.04.2006 and further liable to pay a sum of Rs. 3,71,790/ plus Rs.3,300/ as demand notice charges, totaling to Rs. 3,75,090/.
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 initially took a loan of Rs. 1,50,000/ from the plaintiff, however, it is denied that he had 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. The defendant has subsequently denied issuance of Balance Confirmation Certificate to the plaintiff and has admitted the issuance of Statement of Accounts only from 22.08.2000 to 31.03.2001. It M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 4 of 31 Civil Suit No. 128/10 is averred in the written statement that in January, 2008, the defendant represented to the plaintiff that he had charged interest at exorbitant rate and that he was also charging compound interest. It is claimed that the negotiations were held between the parties and it was finally agreed that the defendant was to pay a sum of Rs. 7,00,423/ 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. It is the case of the defendant that the said amount was paid and all the claims of the plaintiff stood finally settled thereby denying the rest of the contents of the plaint.
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 reiterated that there was a specific contract of the parties of the suit for the payment of compound interest @18% per annum and subsequently for the period and the rate as averred in the plaint. 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 heard, the following issues were framed by the courts order dated 12.04.2012 for adjudication which are as M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 5 of 31 Civil Suit No. 128/10 under:
1. Whether the suit is filed within the period of limitation ? OPP.
2. Whether the suit for recovery of interest alone is not maintainable and the loan transaction between the parties is otherwise liable to be reopen 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 as Karta of the plaintiff's firm which is stated to be HUF has tendered documents i.e. Statement of Accounts for the year from 20002001 Ex. PW1/1, 20012002 Ex. PW1/2, 20022003 Ex. PW1/3, 20032004 Ex. PW1/4, 20042005 Ex. PW1/5, 20052006 Ex. PW1/6, copy of ITR for the financial year 20002001 Ex. PW1/7, copy of ITR 20012002 Ex. PW1/8, copy of ITR 20022003 Ex. PW1/9, copy of ITR 20032004 Ex. PW1/10, copy of ITR 20042005 Ex. PW1/11, copy of ITR 20052006 Ex. PW1/12 and copy of ITR 20072008 Ex. PW1/13. There were an objections to the mode of proof of annexures to the ITRs relied upon by the witness which were deferred for an appropriate hearing at a subsequent stage. Same shall be dealt with appropriately. PW1 was cross examined, at length by Ld. counsel for the defendant on the documents, stated to be the Statement of Accounts, by the defendant, tendered as PW1/2 to Ex. PW1/5. PW1 denied the suggestion that these documents were forged and fabricated and he specifically M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 6 of 31 Civil Suit No. 128/10 denied that the annexures to Ex. PW1/7 to Ex. PW1/13 were not filed by him with the Income Tax Department. PW1 also denied the suggestion that defendant was liable to pay only simple interest but failed to admit or deny that the agreed rate of interest was 12.5% p.a.. PW1 further categorically denied any meeting with the defendant held in January, 2008 for settlement on payment of Rs. 7,00,423/ within 2 years, arrived at, with the defendant. PW1, however, admitted the payment of Rs. 6,00,000/ vide cheque bearing no. 175902 dated 11.02.208 and Rs. 1,00,423/ vide cheque bearing no. 175914 dated 16.05.2008 by the defendant to the plaintiff. It was outrightly denied that the payments were received by the plaintiff, in discharge of entire loan liability of the defendant or that the excess interest was being charged from the defendant.
12. In defence evidence, defendant examined herself as DW1 whereby the averments in the written statement were reiterated deposing that the defendant had borrowed money from the plaintiff for which plaintiff was entitled to simple interest @12.5% per annum. DW1 denied any liability to pay compound interest. Defendant as DW1 has admitted the statement of account filed by the plaintiff Ex. PW1/1 and has subsequently denied Balance Confirmation Certificate Ex. PW1/2 to Ex. PW1/5. DW1 has deposed that the entire loan amount paid by the plaintiff has been disposed of by her in full and final settlement on the M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 7 of 31 Civil Suit No. 128/10 payment of Rs. 7,00,423/ by way of two cheques of Rs. 6,00,000/ and Rs. 1,00,423/.
13. In cross examination, DW1admitted that initially the plaintiff charged interest @18% per annum and compound interest @ 15% p.a. on the loan given by the plaintiff. DW1 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 her ITRs to which she deposes that she was not aware about the rate of interest payable to the plaintiff, was shown in her ITRs. The sanctity of ITRs in absence of the annexures has been questioned, to which DW1 has answered in denial that the annexures of ITRs were not filed due to material concealment. She has denied her signatures on Ex.PW1/2 to Ex.PW1/6 which are the alleged statement of accounts maintained by defendant in respect of loan account given by the plaintiff. DW1 has specifically denied that the payments were made by her in discharge of partial liability or that she had issued a Balance Confirmation Certificate Ex. PW1/2 to Ex. PW1/5.
14. The arguments addressed by ld. counsels have been heard and appreciated in the light of facts of the case. The documents, on record, the authorities relied upon and the law relevant to the facts of the case and legal issues involved have been duly appreciated. Issuewise findings of M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 8 of 31 Civil Suit No. 128/10 the court are as under:
15. Issue no.1.
Whether the suit is filed within the period of limitation ? OPP.
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 22.08.2000 to 08.04.2004. A preliminary objection has been taken by the defendant that the suit was filed beyond limitation.
16. 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.6,00,000/ vide cheque bearing no. 175902 dated 11.02.2008 and Rs. 1,00,423/ vide cheque bearing no. 175914 dated 16.05.2008 both drawn on OBC, to the plaintiff. 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 M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 9 of 31 Civil Suit No. 128/10 the plaintiff. Nevertheless, it is not denied by defendant that he made a payment of Rs. 7,00,423/ by way of above mentioned cheques on 11.02.2008 and 16.05.2008 to the plaintiff. Therefore, the last exchange of payment admitted and duly proved on the record between the parties is the payment of Rs. 1,00,423/ paid by the defendant to the plaintiff on 16.05.2008 vide cheque bearing no. 175914.
17. 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 16.05.2008. 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 February 2008 or May 2008.
17. Issue no.2.
Whether the suit for recovery of interest alone is not maintainable M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 10 of 31 Civil Suit No. 128/10 and the loan transaction between the parties is otherwise liable to be reopen u/s 3 of The Usurious Loans Act ? OPD.
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 20072008 by way of payment of Rs. 6,00,000/ on 11.02.2008 and Rs. 1,00,423/ on 16.05.2008. PW1 has tendered statement of accounts of the defendant in respect of account statement of loan by the plaintiff for the period from 22.08.2000 to 31.03.2006 vide Ex.PW1/1 to Ex.PW1/6. He has also tendered ITRs for the assessment year 2001 to 2002 to assessment year 20072008, with annexures as Ex.PW1/7 to Ex.PW1/12.
19. 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 account also shows that some payments were being M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 11 of 31 Civil Suit No. 128/10 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 Usurious Loans Act on the ground that the stipulated interest being charged by the plaintiff was unfair and exorbitant.
20. 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 15% per annum w.e.f. Financial year 2004 and w.e.f. 01.04.2005 onwards, the rate of interest was modified to 16.5%. 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. 90,000/ on 08.04.2004. This amount forms part of the statement of account for the financial year 20042005 which is tendered on behalf of plaintiff as Ex. PW1/5. Though the signatures of defendant are denied on Ex. PW1/5 but the fact remains that the payment by way of M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 12 of 31 Civil Suit No. 128/10 cheque to the defendant is not challenged or denied.
21. 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 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.
22. Issue no.3.
Whether the plaintiff is entitled to recover the suit amount with interest ? OPP.
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 judgment 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 M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 13 of 31 Civil Suit No. 128/10 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.
23. During course of final arguments, contentions and cross contentions on the aspect have been addressed and 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" .
M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 14 of 31 Civil Suit No. 128/10 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.
24. 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. 3,75,090/ 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 M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 15 of 31 Civil Suit No. 128/10 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 Sh. Saurabh Goyal, Karta of the plaintiff as PW1 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 19992000 as Ex. PW1/1, 20002001 as Ex.PW1/2, 20012002 as Ex.PW1/3, 20022003 as Ex.PW1/4, 20032004 as Ex.PW1/5, 20042005 as Ex.PW1/6. Copy of ITRs for the assessment years 20012002 as Ex.PW1/8, 20022003 as Ex.PW1/9, 20032004 as Ex. PW1/10, 20042005 as Ex.PW1/11, 20052006 as Ex.PW1/12 and 20072008 as Ex.PW1/13. PW1 has duly proved statement of accounts for 22.08.2000 to 31.03.2001. The subsequent Statements of accounts tendered as Ex. PW1/2 to Ex. PW1/6 for the period starting from F.Y. 20012002 to F.Y. 20052006, are denied by the defendant. The statements have been carefully perused in light of the disputed and non admission by the defendant. During arguments, attention of the court has been drawn to the signatures appended at point X on Ex. PW1/2 to Ex. PW1/6 praying to compare the same with the signatures at point X on Ex. PW1/1. The court in exercise of its powers U/s 47 of The Indian Evidence Act, appreciated the signatures which are materially different from the admitted signatures of the defendant at point X on Ex. PW1/1. Plaintiff M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 16 of 31 Civil Suit No. 128/10 has not put forth any explanation as to the person who has signed Ex.PW1/2 to PW1/6 if not the defendant herself. It is interestingly also observed that one Statement of Account allegedly of the defendant for the financial year 20062007 is annexed with the ITR of the plaintiff for the assessment year 20072008 which is tendered as Ex. PW1/13. In this statement, the surname of the defendant has been changed. The perusal of memo of parties of the suit shows that the defendant is the wife of Sh. Kapil Aggarwal and apparently the stamp of the defendant on the top of the statement of accounts Ex. PW1/2 to Ex. PW1/6 and the statement of accounts for the financial year 20062007 annexed with ITR Ex.PW1/13 also shows the change in use of surname by the defendant, may be out of choice or by marriage. It is also observed that there is a payment of Rs. 15,000/ by way of cheque dated 11.03.2003 bearing no. 792137 by the defendant in favour of the plaintiff reflected in Ex. PW1/3, loan of Rs. 70,000/ from the plaintiff to the defendant by way of cheque on 07.10.2005 shown in Ex. PW1/4 and as above discussed, another payment of Rs. 90,000/ as loan from the plaintiff to the defendant by way of cheque on 08.04.2004 in Ex. PW1/5. However, the disputed statement of account Ex. PW1/6 shown a carry forward balance of Rs. 7,00,423/ for the financial year 20052006. It is also pertinent to observe that the statement of accounts for the financial year 20062007 annexed with Ex. PW1/3 shows that there was no interest addition for the period 20062007 M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 17 of 31 Civil Suit No. 128/10 whereby the carry forward balance remains the same at the amount of Rs. 7,00,423/. PW1 has been cross examined with the allegations that the Statement of Accounts Ex.PW1/2 to Ex. PW1/6 and the annexed ITRs were forged and fabricated. PW1 as Karta of the plaintiff's firm has outrightly denied the suggestion. During the cross examination, PW1 stood by his stand that the statement of accounts Ex. PW1/2 to Ex. PW1/5 were not issued by him.
25. Now the aspect of interest claim by the plaintiff against the defendant shall be examined. PW1 has denied the suggestion that the defendant was liable to pay only simple interest @ 12.5% p.a.. He, however, failed to admit or deny that the agreed rate of interest was 12.5 % p.a. PW1 categorically denied any meeting with the defendant in 2008 for alleged settlement with the defendant for payment of Rs. 7,00,423/. PW1, however, admitted the payment of Rs. 6,00,000/ vide cheque bearing no. 175902 dated 11.02.2008 and Rs. 1,00,423/ vide cheque bearing no. 175914 dated 16.05.2008. PW1 denied that the amounts have been received by him in duly discharge of entire loan liability of the defendant and that excess interest was being charged from the defendant. On this aspect DW1 has testified in support of written statement about the entitlement of the plaintiff to simple interest @ 12.5% p.a.. She denied her liability to pay compound interest. In further cross examination M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 18 of 31 Civil Suit No. 128/10 DW1admitted that initially the plaintiff charged interest @18% per annum and compound interest @ 15% p.a. on the loan taken by her.
26. After due consideration of the documents on the 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 and admission of the defendant that there were continued business transactions for which the alleged amounts were paid by her after January, 2008 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 20052006 shows the credit balance of Rs. 7,00,423/, payable by the defendant in favour of the plaintiff. As above discussed, the statement of accounts for the financial year 20062007 annexed with ITR Ex. PW1/13 shows the same credit balance with no interest credit during the year. 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. 6,00,000/ and Rs. 1,00,423/ paid by the defendant in favour of the plaintiff on 11.02.2008 and 16.05.2008. These M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 19 of 31 Civil Suit No. 128/10 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. 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 01.04.2008 to the tune of Rs. 7,00,423/. It is not the case of the plaintiff that any principal amount is balance or recoverable against the defendant. It is also observed and discussed hereinabove that as per account statements of financial year 20052006 and 20062007 of the defendant, allegedly a balance credit is shown as Rs. 7,00,423/ in favour of plaintiff.
27. In this regard, though the statement of account Ex. PW1/2 to Ex. PW1/6 are denied by the defendant. It is case of the defendant himself that he made the payments to the tune of Rs.7,00,423/ in due discharge of all his liabilities. The receipt of amount is not denied by the plaintiff. 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. Therefore, it is clear that there were subsequent transactions between the parties even after 31.03.2001 (last date of admitted statement of account Ex.PW1/1), otherwise there would have been no occasion/question of payment of an amount of Rs.7,00,423/ as stated by M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 20 of 31 Civil Suit No. 128/10 both the plaintiff as well as the defendant. As discussed after examining the case of both the parties, it is proved on record that a total sum of Rs. 7,00,423/, infact, was paid by the defendant to the plaintiff by way of part payments made on 11.02.2008 and 16.05.2008 by cheques bearing no. 175902 and 175914 respectively.
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 account from the financial year 20002001, court finds Ex. PW1/2 to Ex. PW1/6 and the statement of account for the financial year 20062007 also worthy of credit and belief, despite that fact that they are disputed by the defendant. The aspect of signatures on Ex. PW1/2 to Ex. PW1/6 for the financial year 20062007 are definitely not matching with the statement of accounts of defendant Ex. PW1/1. However, in view of the above observed facts thereby the disputed statements of accounts may not be deemed admitted by the defendant on the aspect of chargeable interest recorded therein, neither of the transactions recorded by way of cheque are denied by either the plaintiff or the defendant. The copy of statement of account of financial year 20052006 reveals that credit balance of Rs. 7,00,423/ shown due upon the defendant and payable in favour of the M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 21 of 31 Civil Suit No. 128/10 plaintiff has been supported by another documents which is statement of account of financial year 20062007 filed as annexure to Ex.PW1/13 which is ITR return for the assessment year 20072008. The carry forward balance as on 01.04.2007 is shown to be Rs.7,00,423/, in the statement of account of financial year 20052006. Same balance has been shown in the subsequent statements of accounts of financial year 20062007 annexed with Ex. PW1/13. The very fact that the amount of Rs. 7,00,423/ is shown as credit found balance in the statement Ex. PW1/6 as well as in the statement of accounts of subsequent financial year 20062007 annexed with Ex. PW1/13 is enough to conclude beyond any confusion and doubt that business transactions with accrued interest were going on between parties upto 31.03.2006. In the subsequent financial year 20062007 where no interest has been added even in the statement of accounts relied upon by the plaintiff itself shows that there was no more ongoing business transactions and no fixed stipulated rate of interest has been shown in the statement of accounts for the financial year 20062007. Therefore, it is the duly proved that the carried forward balance as per the business transactions of the parties, was Rs. 7,00,423/, upto 31.03.2006.
29. In view of these reasons, amount transacted as per the statements of account, as deemed proved for the amount paid by the plaintiff to the defendant, are detailed as under : M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 22 of 31 Civil Suit No. 128/10 Period / Details of payment Amount Document Financial Year of loan (from exhibited/ plaintiff to Marked defendant) 22.08.2000 to 22.08.2000 Rs.1,50,000/ Ex.PW1/1 31.03.2001 By Ch. 339085 BOI do 23.11.2000 Rs.1,35,000/ do By Ch.346272 BOI 01.04.2001 to Nil Only previous Ex.PW1/2 31.03.2002 Loan 01.04.2002 to Nil Only Previous Ex.PW1/3 31.03.2003 Loan 01.04.2003 to 07.10.2003 Rs. 70,000/ Ex.PW1/4 31.03.2004 By Cheque 01.04.2004 to 08.04.2004 Rs. 90,000/ Ex.PW1/5 31.03.2005 By Ch. 373067 BOI 01.04.2005 to Nil Only Previous Ex. PW1/6 31.03.2006 Loan 01.04.2006 to Nil Only Previous Ex. PW1/13 31.03.2007 Loan (Annexure)
30. Likewise, the amount paid by the defendant to the plaintiff as per the statement of account, as deemed proved, are detailed as under : M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 23 of 31 Civil Suit No. 128/10 Period/ Details of payment Amount Document Financial Year (from defendant to exhibited / plaintiff) Marked 22.08.2000 to 15.02.2001 Rs. 80,000/ Ex.PW1/1 31.03.2001 To Ch. 070227 OBC 01.04.2001 to Nil Ex. PW1/2 31.03.2002 01.04.2002 to 11.03.2003 Rs. 15,000/ Ex. PW1/3 31.03.2003 To Ch. 792137 OBC 01.04.2003 to Nil Ex.PW1/4 31.03.2004 01.04.2004 to Nil Ex.PW1/5 31.03.2005 01.04.2005 to Nil Ex.PW1/6 31.03.2006 01.04.2006 to Nil Ex.PW1/13 31.03.2007 (Annexure) 11.02.2008 Rs. 6,00,000/ To Ch. 175902 OBC 16.05.2008. Rs. 1,00,423/ To Ch. 175914 OBC
31. The above tabulated inventory of amount paid by one party to M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 24 of 31 Civil Suit No. 128/10 the other by way of cheques are duly proved and nonchallenged. It is therefore, proved that a total sum of Rs.4,45,000/ has been paid by the plaintiff to the defendant w.e.f. 22.08.2000 to 08.04.2004, 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 during the financial year 20002001 and financial year 20022003 and these payments by the defendant stands reflected and adjusted in the balance confirmation certificates/statements allegedly maintained by the defendant herself whereby carried forward balance has been shown in respect of the previous financial year as the opening entry of the subsequent financial year.
31. It is further the case of the plaintiff that defendant has repaid sums of Rs. 6,00,000/ on 11.02.2008 vide cheque bearing no. 175902 and Rs. 1,00,423/ on 16.05.2008 vide cheque bearing no. 175914 both drawn on OBC totaling to Rs. 7,00,423/. 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 loan of Rs. 70,000/ to the defendant by way of cheque dated 07.10.2003 by the plaintiff and the last payment by the plaintiff by way of loan to the defendant was by way of cheque dated 08.04.2004 for M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 25 of 31 Civil Suit No. 128/10 amount of Rs. 90,000/. Therefore, there are no payments by way of cheques from either of the parties to the other one after the financial year 20042005 when the last cheque of Rs. 90,000/ paid by the plaintiff towards the loan to the defendant on 08.04.2004. Therefore, amounts paid by the defendant in favour of the plaintiff for Rs. 70,000/ on 07.10.2003 and Rs. 90,000/ on 08.04.2004 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.
32. Hence, it is proved that a total sum of Rs.4,45,000/ has been paid by the plaintiff as loan to the defendant during the period from 22.08.2000 to 31.03.2007. Since statement of accounts for the financial year 20052006 and 20062007 are disputed and signatures of the defendant not proved upon them, it has already been observed that same shall be relevant for the purpose of bringing the carried forward balance of Rs 7,00,423/ shown as the correct balance in the statement of accounts of F.Y. 20062007 appended with the ITRs in Ex. PW1/13. Neither of the parties have been able to conclusively prove as to how much interest 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 admitted statements of M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 26 of 31 Civil Suit No. 128/10 accounts Ex. PW1/1 reveals that there were charges of interest upon the amount of loans given by the plaintiff in favour of the defendant. However, factum of alleged stipulated rate of interest for the purpose claimed has not duly been proved by the plaintiff.
33. It is also clear that during the course of business, the defendant realized that the excessive and exorbitant interest was being charged by the plaintiff and therefore, the subsequent periods w.e.f. 20062007 vide disputed statement of accounts, no accrual of interest upon the carried forward balance is reflected. No document has been proved to show any understanding between the parties for payment of compound interest. The interest amount calculated upon carried forward balance of the previous year in the alleged statements of accounts of the defendant Ex.PW1/2 to Ex.PW1/6 can not be deemed to be proved as the statement of accounts are materially disputed and it is clear that there were continuous business transactions between the plaintiff and defendant. As discussed, the last business transaction between the plaintiff and the defendant was of the payment of loan of Rs. 90,000/ by the plaintiff to the defendant by way of cheque dated 08.04.2004 and the same is reflected in the disputed statement of account for the financial year 20042005 which is found annexed with Ex.PW1/5. This statement of account is not admitted by the defendant and is disputed. The proved facts remain that the two M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 27 of 31 Civil Suit No. 128/10 transactions dated 15.02.2001 by way of cheque for an amount of Rs. 80,000/ and the other dated 11.03.2003 by way of cheque for a sum of Rs. 15,000/ and further the principal loan amount of Rs. 4,45,000/ paid by the plaintiff to the defendant by various cheques as detailed hereinabove, are not denied by the defendant. The factum of the amount of Rs. 7,00,423/ shown as carried forward balance in Ex. PW1/6, though disputed by the defendant, inspires confidence of the court as it is the case of the defendant that he paid a sum of Rs. 7,00,423/ to the plaintiff by way of Rs. 6,00,000/ on 11.02.2008 and Rs. 1,00,423/ on 16.05.2008 towards the discharge of her liability in respect of her loan advanced by the plaintiff in her favour.
34. After duly considering the payments and repayments between the parties, it is proved that there was a credit balance of Rs.7,00,423/ 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. 6,00,000/ by way of part payments on 11.02.2008 and Rs. 1,00,423/ on 16.05.2008, within the financial year 20072008 and 20082008. 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 M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 28 of 31 Civil Suit No. 128/10 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 hereabove, 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 outstanding dues against the defendant as under: principal amount upon Period Interest which plaintiff is entitled granted to for interest the plaintiff.
From To
1. Rs. 7,00,423/ 01.04.2007 10.02.2008
Rs. 6,00,000/ paid by the
defendant on 11.02.2008.
@12%
2. Rs. 1,00,423/ 11.02.2008 15.05.2008
p.a.
Rs.1,00,423/ paid by
defendant on 16.05.08.
Issue no. 3 is disposed of accordingly.
M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 29 of 31
Civil Suit No. 128/10
35. Issue no.4.
Relief.
Plaintiff is entitled to a Decree for Recovery of unpaid interest, as per tabulated calculations given hereinabove against the defendant.
principal amount upon Period Interest
which plaintiff is entitled granted to
for interest the
plaintiff.
From To
1. Rs. 7,00,423/ 01.04.2007 10.02.2008
Rs. 6,00,000/ paid by the
defendant on 11.02.2008.
@12%
2. Rs. 1,00,423/ 11.02.2008 15.05.2008
p.a.
Rs.1,00,423/ paid by
defendant on 16.05.08.
Plaintiff shall further be entitled to recover a simple interest @12% per annum w.e.f. 16.05.2008 upon the amounts so calculated as unpaid interest, till the date of realisation of the Decreetal amount.
36. The amount of Rs. 1,00,000/ deposited by the defendant with the court is liable to be adjusted as per the Decree. The plaintiff shall M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 30 of 31 Civil Suit No. 128/10 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.
37. The amount deposited, if found excess in satisfaction of the Decree, shall be returned to the defendant, on proper application in this regard.
38. 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.
39. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today on 03.03.2015 (Preeti Agrawal Gupta) Addl. District Judge (Central)10 Tis Hazari: Delhi M/s. S.D. Goyal & Sons Vs. Priyanka Gupta Page No. 31 of 31