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2018 DIGILAW 1559 (RAJ)

Sheetalnath Trading Company v. Bhim Singh Chouhan

2018-07-24

ARUN BHANSALI

body2018
JUDGMENT : ARUN BHANSALI, J. At the request of learned counsel for the parties, the matter has been finally heard. 2. This appeal is directed against the judgment & decree dated 03.04.2017 passed by the Additional District Judge, Nathdwara, whereby the suit filed by the respondent-plaintiff for recovery of money has been decreed, wherein the following decree has been passed:— 3. The decree has been passed by the trial court, by calculating the interest @ 18% per annum from 03.07.2007 to 12.04.2012 on the principal amount of Rs. 2,50,000/- and the same has been quantified at Rs. 2,14,988/-. 4. It is submitted by learned counsel for the appellant that the appellant is confining his appeal only to the extent of award of interest @ 18% per annum. It is submitted that it was nowhere the case of the plaintiff that the transaction between the parties was commercial in nature and, therefore, in view of the provisions of Section 34 CPC, the trial court could not have awarded interest beyond 6% per annum and, there fore, the decree passed by the trial court deserves to be modified. 5. Learned counsel appearing for the respondent supported the decree impugned. It was submitted that admittedly the appellant has used the money for his business and, therefore, he cannot claim that the transaction was not commercial in nature and, therefore, the trial court was justified in awarding interest @ 18% per annum and, therefore, the decree does not call for any interference. 6. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 7. A perusal of the judgment impugned indicates that the suit was filed by the plaintiff specifically indicating that plaintiff and defendant Mukesh were good friends and on 07.07.2004, Mukesh took loan of Rs. 3,00,000/- and gave a cheque for the said amount, which pertained to a closed account and, therefore, proceedings under Section 138 of the Negotiable Instrument Act, 1882 was initiated. Nowhere in the plaint, the plaintiff has indicated that the amount was lent to the appellant by way of any commercial transaction, on the other hand as noticed the averments made are that the plaintiff and the defendant were good friends and, there fore, the amount was lent to him. 8. Nowhere in the plaint, the plaintiff has indicated that the amount was lent to the appellant by way of any commercial transaction, on the other hand as noticed the averments made are that the plaintiff and the defendant were good friends and, there fore, the amount was lent to him. 8. So far as the submission made by learned counsel for the respondent that as the money was used by the defendant for his business, the same would amount to a commercial transaction, suffice it to observe that the same by itself cannot convert the transaction between plaintiff and defendant as commercial in nature. 9. Provision of Section 34 CPC reads as under:— “34. Interest. - (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit; Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.” The above provision is explicitly clear, which provides that where a decree for payment of money is passed, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, not exceeding 6% per annum. 10. The proviso, provides for an exception, wherein in case of commercial transaction, the Court can award the contractual rate of interest. 11. 10. The proviso, provides for an exception, wherein in case of commercial transaction, the Court can award the contractual rate of interest. 11. As already noticed herein before, the transaction between the parties is not a commercial transaction and, there fore, the trial court could not have awarded interest beyond 6% per annum and, therefore the decree passed by the trial court to the extent of awarding interest on the principal sum of Rs. 2,50,000/- from the date of filing of the suit to the date the amount was paid to the plaintiff i.e. 03.07.2007 to 12.04.2012 @ 18% per annum, cannot be sustained and the same is, therefore, modified to the extent that the plaintiff would be entitled to interest @ 6% per annum on the principal sum of Rs. 2,50,000/- from 03.07.2007 to 12.04.2012. 12. With the above modification, the appeal filed by the appellant stands disposed of.