RSA No.1957 of 2009 (O&M)

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

RSA No.1957 of 2009 (O&M)

Date of Decision.04.11.2016

M/s Pragati Steels through its partner Smt. Pragati Gupta.......Appellant

Vs

Smt. Nirmala Devi and others

........Respondents

2.

RSA No.4278 of 2009 (O&M)

Smt. Indu Lekha

.......Appellant

Vs

Pragati Gupta

........Respondent

3.

RSA No.4281 of 2009 (O&M)

Smt. Nirmala Devi

.......Appellant

Vs

M/s Pragati Steels through its partner and others

........Respondents

Present:

Mr. Rakesh Bhatia Advocate

for the appellant in RSA No.1957 of 2009 and

for respondent in RSA No.4278 and 4281 of 2009.

Mr. Aman Bahri, Advocate

for the appellant in RSA Nos.4278 and 4281 of 2009 and

for respondent No.1 in RSA No.1957 of 2009.

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

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AMIT RAWAL J. (ORAL)

C.M. No.14506-C of 2016 in RSA No.1957 of 2009

C.M. No.14319-C of 2016 in RSA No.4281 of 2009

The applications for impleading the legal representatives of

deceased-respondent No.1, Nirmala Devi in the second appeal bearing

No.1957 of 2009 and appellant in RSA No.4281 of 2009 are allowed

subject to all just exceptions and the legal representatives are ordered to be

brought on record.

PANKAJ KUMAR

2016.11.30 13:04

I attest to the accuracy and

integrity of this document

RSA No.1957 of 2009 (O&M)

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Amended memo of parties are taken on record and the registry

is directed to put them at the appropriate place in the respective cases.

Main cases

This order of mine shall dispose of three regular second

appeals. RSA Nos.1957 of 2009 and 4281 of 2009 are the appeal and cross

appeal arising out of filing of Civil Suit bearing No.449 of 2006 titled as

“Smt. Nirmala Devi Vs. M/s Pragati Steels and others” (hereinafter called as

the 1^st suit). The former second appeal is filed at the instance of the

company and the latter one is filed by the plaintiff whereas the RSA bearing

No.4278 of 2009 is at the instance of the plaintiff in Civil Suit No.444 of

2006 titled as “Indu Lekha Vs. Pragati Gupta” (hereinafter called as the 2^nd

suit).

In the first suit, the claim made was for recovery of `3,74,076/-

as principal plus interest @`11,223/-, total `3,85,299/- and future interest

and in the second suit, recovery of `49,500/- as principal plus interest

@`6870/-, total `56,370/- with future interest on the premise that the

plaintiff in the respective cases lent family loans to the defendant for

running the business of the firm under the name and style of M/s Pragati

Steels through its partner Smt. Pragati Gupta, 166, Industrial Area, Phase-II,

Chandigarh. According to the averments in the plaint, the loan had been

extended by way of cheque and the interest accrued was 18%. The

contention of the defendant before the Court below was that the amount had

been repaid to the plaintiff(s) but the plaintiff(s) did not appropriate the

same towards the principal but towards the interest and in this backdrop of

the matter, the suit had been filed, though there was no outstanding due

required to be recovered. The trial Court dismissed both the suits, however,

PANKAJ KUMAR

2016.11.30 13:04

I attest to the accuracy and

integrity of this document

RSA No.1957 of 2009 (O&M)

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the lower Appellate Court by taking into consideration certain facts, much

less, of equity, granted 6% interest on the total amount and not on principal.

In this backdrop of the matter, the present appeals are filed before this

Court.

Mr. Rakesh Bhatia, learned counsel appearing for the appellant

in RSA No.1957 of 2009 submits that except the payment of loan by way of

cheque and return of the same through cheque, there was no other written

agreement of charging of interest @18%, in essence, the plaintiff has failed

to discharge the onus with regard to the rate of interest. There is no

evidence to that effect. It was not a commercial transaction and rightly so,

the Courts below have awarded interest @6%. Durin