2008 Supreme(Bom) 141

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
B.P. DHARMADHIKARI, J.
Pushpakunj Cooperative Housing Society Limited - APPELLANT
Versus
H.S.B. Construction - RESPONDENT
FIRST APPEAL NO. 300 OF 2001
Decided on : JANUARY 31, 2008.

Headnote:Civil Procedure Code, 1908 - Section 34-Compensatory interest -Grant of-Plaintiff claiming 24% interest as he incurred loan to defendant/society for construction work-Filed no document to prove same-Examined one witness from Bank-Plaintiff’s loan application not brought on record-Plaintiff not entitled to penalty/interest as claimed.-Next question to be gone into is whether plaintiff proves its entitlement to 24 per cent compensatory interest? Plaintiff claimed such rate of interest only because of its contention that said loan was incurred for the purposes of construction work of Defendant society. Cross-examination of PW-1 in paragraph 40 shows that he had availed of loan facility for the purposes of construction work of Defendant but he did not file any document for that purpose on record. Though he examined witness from bank Shri Nagrale at Exhibit 209, plaintiff’s loan application has not been brought on record. PW-1 accepted that it was cash credit facility and checks issued by Defendant society were credited by him into this loan account. He accepted that cash amount paid by Society was not credited into this account by him. He could not assign any reason as to why he did not deposit cash receipts in this account. It is obvious that cash amount received from members is also not therefore deposited by him in this loan account. Bank had therefore, continued to levy interest on it even though amount was received by plaintiff. Said amount therefore obviously was utilised for its business by plaintiff without paying any interest itself and at the cost of members or society, as the case may be, who paid said amount to it. Evidence of PW-3 i.e. bank witness Shri Nagrale does not show that loan was for construction work of defendant only. And it cannot be forgotten that PW-1 managing partner or plaintiff did not find it necessary to give account of balance amount of Rs. 20 lakh and the reason as to why this amount was not deposited with Bank. Justification given by him for demanding such rate of interest has not been substantiated but on the contrary is found to be incorrect. In view of this position, plaintiff is not entitled to rate of 24 per cent as compensatory interest, plaintiff has not pointed out as to exactly what amount was not deposited by it with Bank. Bank therefore charged interest on account of fault of plaintiff and plaintiff cannot be allowed to pass it over to Defendant. It appears that there is resolution by which meaning committee of Defendant resolved to pay Rs. 200/- per day as late payment charges if bills of plaintiff were not cleared within 7 days. However for that purpose, plaintiff ought to have brought on record evidence bill-wise or demand-wise indicating the date on which demand was made and date on which it was fulfilled or period during which it remained unfulfilled. No bill on record i.e. either Exhibit 139 or 141 furnishes these details. It is therefore obvious that in present matter, plaintiff has not proved even that claim.

       Civil Procedure Code, 1908 - Section 34-Interest-Grant of-Suit for recovery of money-Commercial transaction between parties-Suit decreed-Grant of interest on total amount just and proper-Refusal to grant future interest on entire amount unjustified.-Court below has allowed interest to plaintiff on entire amount i.e. as found due by it. Plaint prayer (a) is to grant decree for Rs. 6,12,130.16 while by prayer (b) plaintiff is seeking 18% on Rs. 4,42,395.33 only. But then there is prayer (c) also by which future interest is prayed for on decretal amount till its realisation. There is also a residuary prayer to grant any relief as may be deemed just. Trial Court has found Rs. 6,12,130.16 to be due to plaintiff and awarded interest at 18% on it from the date of institution of suit till realisation. When all prayers are seen together, it becomes clear grant of interest is supported by prayer "c" and is not in excess of prayers in plaint. Section 34, CPC permitted the Court to do so and even in the absence of specific prayer covering complete amount. Trial Court was justified in awarding interest on total amount for which suit was filed. Suit filed by plaintiff was money suit and transaction between parties is commercial one. Court below therefore could have granted future interest on entire amount. The contention that no future interest would have been awarded on interest component.