Second appeal filed by a partnership concern against a decree for recovery of debts and business dealings. The appellate court rejected the appeal due to lack of substantial question of law and no interference required with concurrent findings below.
Appeal dismissed; impugned judgments and decrees of lower courts upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
206
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: 09.12.2021
M/s Sound Trading Company through its partners ...Appellants
Versus
Rajesh Bajaj and another ...Respondents
CORAM: HON’BLE MR. JUSTICE ARUN MONGA
Present: Mr. Akhilesh Vyas, Advocate, for the appellants.
Ms. Vanita Sapra, Advocate, For the respondents.
ARUN MONGA, J. (ORAL)
CM-11688-C-2018
For the reasons stated in the application, same is allowed and delay of 46 days in re-filing the appeal is condoned .
Main Case
For convenience, parties herein are described as per recitals before the trial Court.
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
1. Whether the plaintiff is entitled to recovery of Rs.3,34,694.16 along with pendent lite and future interest @ 24% per annum ? OPP.
2. Whether suit has been filed by a duly authorised and competent person? OPP.
3. Whether suit is within limitation ?OPP.
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
4. Whether the suit amount stands already paid by the defendants to the plaintiff ? OPD.
5. Relief.
“22. The only material plea raised by defendants/appellants is that the bills and account statements have not been proved as per the provisions of Indian Evidence Act but since the plaintiffs have examined PW2 Narinder Kumar who is conversant with the facts of the case and further Banwari Lal due to his death he could not come present for his cross examination plaintiffs have proved that the account books were maintained in due
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
course of business and there was a running account of the defendants so the said account books are admissible in evidence as per Section 34 of Indian Evidence Act. Apart from the books of accounts there is oral evidence of the plaintiffs also. The defendants have failed to rebut the said evidence inspite of the fact that entire onus was upon the defendants to prove that the payment of due amount has been made. Though some of the payment made by the defendants of the amount of tallies with the bills which were raised against the defendants but it has come on record that whatsoever payment has been made by defendants that has been adjusted against due amount and defendants never instructed the plaintiffs to adjust the said amount against any particular bills. So, in the absence of specific instruction as such the amount 17 being received from defendants was being adjusted against the entire due amount and as per the record on 31.12.2009 total amount of Rs.2,74,399.16 paise was due towards the defendants so the defendants have failed to discharge the entire onus which was upon them.
23. Further it is proved on file that the last payment was made by defendants to the plaintiffs on 31.12.2009. Since there being a running account the suit is to be filed by plaintiffs within a period of three years from the date of last payment received from the defendants acknowledging the liability, therefore, the suit of the plaintiffs was within limitation.
24. Further it is proved that plaintiff Rajesh Bajaj is 'karta' of plaintiff no.1 and sole proprietor of plaintiff no.2 so in view of said circumstances the plaintiff has been able to prove that on 31.12.2009 Rs.2,74,339.16 paise were due towards the defendants. These facts and evidence have been rightly considered by the learned lower Court and it has given a well reasoned finding on all the issues which requires no interference. The case law cited by learned counsel for the appellants is not applicable to the facts of present case. There is
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
no force in arguments advanced by counsel for appellants. The appeal is without any merit and hence the same stands dismissed.
25. So far as cross-objections are concerned the plaintiffs have claimed that after 31.12.2009 till the filing of the suit the interest at the rate of 24% per annum was due towards the defendants which has not been awarded by the learned Trial Court and even during the pendency of suit and till realization the interest of 24% per annum was required to be awarded but from the perusal of file it reveals that the learned Lower court decreed the suit for a sum of Rs.2,74,339.16 paise which were due towards defendants as on 31.12.2009 and the learned lower Court has granted interest @ 6% pr annum during the pendency of suit and till realization. This Court is of the opinion that award of interest at the rate of 24% per annum during the pendency of suit and even prior to that and till realization will be excessive and exorbitant. The interest awarded by learned Lower Court at the rate of 6% per annum is totally justified but it seems that the learned Lower Court inadvertently has not awarded interest from 31.12.2009 till the filing of suit on the sum of Rs.2,74,339.16 paise. So, even prior to filing of suit also the plaintiff is entitled to interest @ 6% per annum on the due amount which was due on 31.12.2009. So, to that extent the cross-objections are allowed and plaintiff is awarded interest @ 6% per annum on the amount of Rs.2,74,339.16 paise from 31.12.2009 till the filing of suit. With this observation the appeal titled M/s Sound Trading Company and others vs. Rajesh Bajaj and another filed by M/s Sound Trading Company and others stands dismissed and cross objections titled M/s Sound Trading Company and others vs. Rajesh Bajaj 19 filed by Rajesh Bajaj and another stands partly allowed.”
after due and correct appreciation of evidence adduced by the respective
parties.
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
DECEMBER 09, 2021 (ARUN MONGA) shalini JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No
SHALINI BHATIA 2021.12.23 17:19 I attest to the accuracy of this order.
3 issues framed by the court
Whether a second appeal is maintainable as the facts were appreciated correctly by courts below with no substantial question of law involved.
Whether any fresh ground of interference is made out to disturb the concurrent findings of facts.
Whether the impugned judgments and decrees by courts below are liable to be set aside.
2 provisions across 2 enactments
M/s Sound Trading Company
Rajesh Bajaj
Arun Monga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
