Girdhari Singh v. Rajasthan State Electricity Board
2005-08-12
MANAK MOHTA
body2005
DigiLaw.ai
Judgment Manak Mohta, J.-The plaintiff-appellant filed this appeal against the Judgment and decree dated 20.12.1988 passed by the learned Additional District Judge, Nagaur in Civil Suit No. 38 of 1987 whereby the suit for recovery of Rs. 14,148.37 preferred by the plaintiff was partly decreed with interest @ 6% p.a. from the date of filing the suit. 2. Brief facts giving rise to the present appeal are that on 03.03.1986 an agreement was executed between plaintiff-Girdhari Singh and defendant-RSEB to execute the work 11KV Line erection for electrifying Village Pipasar District Nagaur. After completion of work, the plaintiff intimated the defendant who accepted the same, which was posted in the measurement Book No. 17 at pages 26 to 30 on 17.04.1986. The defendant prepared final bill amounting to Rs. 11,190/-and got the signatures of the plaintiff on the bill. It was stipulated in the agreement that the payment of the bill was to be made within a month from the date of submission of the bill i.e., 17.04.1986 but that was not made inspite of written requests, when the payment was not made to the plaintiff , then he sent a registered notice to the defendant but no response was received. Consequently, the plaintiff filed a civil suit under Order 37 Rule 3, CPC for recovery of Rs. 11,190/-plus interest Rs. 2937.37 at the market-rate of interest 18% p.a. and notice expenses Rs. 21/-total Rs. 14,148.37 in the Court of learned Additional District Judge, Nagaur. 3. It is also revealed that on notice, the officer-in-charge appeared on behalf of the defendant and applied for leave to defend the suit but after consideration, it was found that there was no dispute between the parties with regard to the principal amount, the learned Court-below vide order dated 26.08.1989 rejected the application. 4. Thereafter considering the material on record and after hearing both the parties, the learned Court-below came to the conclusion that there was no written agreement between the parties with regard to interest on due amount on that basis looking to the scope of the suit, which was filed under Order 37, CPC the learned Court-below declined to grant claim of interest Rs. 2937.37 and decreed the suit in favour of the plaintiff-appellant for original due amount Rs. 11,190/-plus interest @ 6% per annum from the date of filing of the suit till payment is made with cost. 5.
2937.37 and decreed the suit in favour of the plaintiff-appellant for original due amount Rs. 11,190/-plus interest @ 6% per annum from the date of filing of the suit till payment is made with cost. 5. Being aggrieved by the rejection of the claim of interest amount Rs. 2937.37, the plaintiff-appellant filed this appeal in this Court. Notice of appeal was given to the defendant-respondent-RSEB. 6. I have heard learned Counsel for the parties and have carefully gone through the record of the case. 7. During the course of argument, the learned Counsel for the plaintiff-appellant submitted that as per the agreed terms of the contract, payment was to be made within one month after preparation of the final bill but that has not been made for long time. It was contended that the learned Court-below has disallowed the interest merely on the ground that there was no contract between the parties for the payment of interest but as the due money has not been paid inspite of written demand without any fault of the plaintiff-appellant. He was entitled to get reasonable interest as per prevailing market rate at that time @ 18% per annum but the learned Court-below has rejected the claim of interest. In this way, the findings of the learned Court-below is erroneous and the Judgment and decree of the learned Court-below to this extent is liable to be set aside. Learned Counsel for the appellant placed reliance on Dena Bank vs. M/s K. Moti Ram Vakil & Ors., reported in AIR 1989 Bom 264 and Hanuman Prasad vs. Surendra Kumar reported in 1999 WLC (Raj.) UC 247 in support of his contentions and prayed that claim of the interest amount be decreed in favour of the plaintiff-appellant. The appeal be allowed. 8. On the other hand, the learned Counsel for the respondent supported the Judgment and decree of the learned Court-below and urged that the plaintiff has filed the suit under Order 37, CPC and in such type of suit, the interest was only recoverable if that was based on the written contract. Admittedly, in the present case, the interest has not been claimed on the basis of the written contract but it has been claimed @ 18% per annum on the basis of market rate that was not awardable.
Admittedly, in the present case, the interest has not been claimed on the basis of the written contract but it has been claimed @ 18% per annum on the basis of market rate that was not awardable. It was prayed that the Judgment and decree of the learned Court-below be maintained and the appeal be disallowed. 9. I have considered the rival contentions raised by the learned Counsel for the parties and perused the authorities cited by the learned Counsel for the appellant. It is admitted fact that the plaintiff -appellant has filed this suit for recovery of Rs. 14,148.37 under Order 37, CPC of summary procedure with regard to liquidated demand in money payable by the defendant-respondent, which has been raised on a written contract. The demand of interest was not based on any term of the written contract. Under Order 37 Rule 2(b)(i) such demand of interest can only be made on written contract. For ready reference, the relevant portion of Order 37, CPC is reproduced below:- “Order 37 Summary Procedure:- .(1) . . . . . . . . . . . . . . . . . . . . . . . .(2) Subject to the provisions of Sub-rule (1), the order applies to the following classes of suits namely:- .(a) ........ .(b) Suitsin which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising:- .(i) on a written contract; or .(ii) ....... ........... ............... (iii) ....... ........... ........... 10. The learned Court-below on the basis of the above legal position disallowed the claim of interest. The learned Counsel for the appellant referred the decision of Dena Bank (Supra), in which the interest was claimed under the Interest Act, 1978. In the present suit, the demand of interest has not been made under that Act. Thus, this authority does not support the contentions. In Hanuman Prasads case (Supra), pendente lite and future interest at the rate of 6% per annum awarded by the learned lower Court was affirmed under Section 34, CPC but the claimed interest was disallowed by the learned Court-below that was not restored. In the present case, the learned Court-below has already awarded interest @ 6% per annum from the date of filing of the suit.
In the present case, the learned Court-below has already awarded interest @ 6% per annum from the date of filing of the suit. In this way, this authority is not supporting the contentions raised by the appellants side. 11. In the result, the appeal of the appellant is disallowed and the Judgment and decree of the learned Court-below dated 20.12.1988 is affirmed. No order as to cost.