1 IN THE COURT OF SH. [ENTITY], CIVIL JUDGE -01 CENTRAL, DELHI SUIT NO: 315/09 [ENTITY] Plaintiff VERSUS [ENTITY], "ECE HOUSE" Connaught Circus, New Delhi-110001 Defendant Date of Institution : 29.09.2004 Date on which Judgment reserved: 06.12.2012 Date of Pronouncing Judgment : 20.12.2012 Suit For Recovery of Rs. 1,35,055.40/- JUDGMENT
1. By this judgment, I shall dispose off the suit for recovery of Rs. 1,35,055.40/-
Version of plaintiff
2. The relevant facts as pleaded in the plaint are that the plaintiff is a limited company having its registered office at the address given in the Memo of parties. Sh. [ENTITY] is one of the directors of the plaintiff's company and as [PRECEDENT] [CASE NUMBER] such, is authorised to sign and verify the plaint and institute the same before this Hon'ble Court. He is also authorised to do so vide Board Resolution dated 04.05.2004.
3. It is further pleaded that the plaintiff has been maintaining a Demat Account no. 051-195071-605 client ID 10362354 with the defendant bank for facilitating share trading transactions.
4. It is further pleaded that vide [CASE NUMBER] dated 12.06.2003, the plaintiff gave specific instructions to the defendant bank for transfer of 2300 share of M/s. Bajaj Auto Ltd. to M/s. Bahrat Bhushan Equity Traders Ltd. ( CM BP ID In 5569953)
- execution date 16.06.2003.
5. It is further pleaded that the defendant being a banking corporation/company was under a legal obligation to carry out instructions of the plaintiff as referred to above. However, the defendant failed to do so inspite of reminder dated 16.06.2003 sent by the plaintiff to the defendant. Vide the said reminder it was made clear that the defendant shall be responsible for any penalty/loss on account of its failure to carry out instructions of the plaintiff for transfer of the above said shares as aforesaid. As the defendant failed to do the needful, the plaintiff again sent reminders dated 17.06.2003 and 20.06.2003 complaining about the non-execution of the instructions given by the plaintiff with regard to transfer of 2300 shares of M/s. Bajaj Auto Ltd. As aforesaid leading to auction of the said shares on 17.06.2003 at the rate of Rs. 567.48/0 per share thereby causing huge losses to the plaintiff. The defendant was further called [PRECEDENT] [CASE NUMBER] upon to make up for the loss of Rs. 1,03,888.85/ suffered by the plaintiff on account of failure of the defendant to carry out the instructions of the plaintiff thereby leading to auction of the said shares as aforesaid.
6. It is further pleaded that for the first time, the plaintiff received a letter dated 24.06.2003 from the defendant, informing that the grievance of the plaintiff is being investigated and that the plaintiff shall be informed about the same shortly. The fact, however, remains that inaction on the part of the defendant lead to auction of the said shares on 17.06.2003 leading to loss of Rs. 1,03,888.85/- to the plaintiff. However, the defendant inspite of repeated reminders dated 25.07.2003, 20.11.2003 and 05.01.2004 besides others, failed to compensate the plaintiff to the extent of loss suffered by them as aforesaid and as such became liable to pay the said amounts alongwith interest at the rate of 24% per annum. Instead of compensating the plaintiff for the losses suffered on account of failure of defendant to carry out instructions of the plaintiff, the defendant started raising false and frivolous pleas vide letters dated 30.08.2003 and 15.01.2004. So far as letters dated 27.03.2003 or 29.04.2003 as alleged by the defendant are concerned, the same were never received or served on the plaintiff. The defendant, as an after thought and with a view to avoid its liability qua the plaintiff as aforesaid, raised frivolous issues with regard to non-payment of some charges subsequently claimed by the defendant. No such claim was ever made by the defendant prior to 30.08.2003. Even otherwise, it is common banking practice to carry out the instructions of the party immediately and [PRECEDENT] [CASE NUMBER] defendant was under a legal obligation to do so even in the present case. However, the defendant totally failed to carry out the request of the plaintiff for transfer of the said shares of M/s. Bajaj Auto Ltd in pursuance to request dated 13.06.2003 (execution dated 16.06.2003). The plea of the defendant of there being some outstanding charges, is merely an after thought and an attempt to some how avoid the liability of the defendant qua the plaintiff as aforesaid.
7. It is further pleaded that cause of action for filing the present suit arose on 12.06.2003 when the plaintiff gave instructions to the defendant to the defendant for transfer of all the shares in question. It further arose on various dates when the defendant failed to carry out the instructions of the plaintiff. It also arose on 16.06.2003 when a reminder was sent to the defendant. It further arose on 17.06.2003, 20.06.2003, 25.07.2003, 20.11.2003 and 05.01.2004 when the plaintiff called upon the defendant to compensate the plaintiff for the loss suffered on account of failure of the defendant to carry out instruction of the plaintiff. It also arose on 30.08.2003 and 15.01.2004 when the defendant sent replies raising false and frivolous pleas. It further arose when the plaintiff served a legal notice dated 05.05.2004 and defendant instead of complying with the terms of the said notice, sent a reply dated 02.06.2004 falsely denying the claim of the plaintiff. As the defendant has failed to compensate the plaintiff for losses suffered on account of failure of defendant to carry out instructions of the plaintiff, the said cause of action still subsists.
[PRECEDENT] Page No:4/20 [CASE NUMBER]
8. The plaintiff has made the following prayer:
A. Recovery in favour of the plaintiff and against the defendant for recovery of Rs. 1,35,0550/- inclusive of interest at the rate of 24% per annum till the filing of the present suit alongwith pendente-lite and future interest at the rate if 24% till realisation.
B. The cost of the be also awarded in favour of the plaintiff and against the defendant. C. Such other further costs, as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the plaintiff and against the defendant.
Version of defendant
9. It is pleaded by the defendant that in the instant suit the plaintiff has no cause of action against the defendant. Therefore, the suit is liable to be dismissed under [SECTION], [ACT].
10. It is further pleaded by the defendant that the suit is liable to be dismissed on the ground that the defendant was under no legal obligation to carry out instructions given by the plaintiff vide [CASE NUMBER] dated 12.06.2003, as the plaintiff had full knowledge that the account of the plaintiff was liable to be frozen on account of the neglect and/or failure of the plaintiff to pay the dues despite several reminders and warnings from the defendant. The defendant was unable to process the plaintiff's instructions because the plaintiff's account with the defendant had been locked/frozen due to non-payment of dues/charges by the defendant despite several reminders. It is submitted that the plaintiff had defaulted in making payment of charges for the account since March 2003. The suit is thus liable to be dismissed in limine. Reference is made to the instructions [PRECEDENT] Page No:5/20 [CASE NUMBER] of Depository Services Personal Account Opening Form wherein it has been clearly mentioned that "In the event of us being unable to recover service charges due to non-maintenance of adequate balance in the designated Bank Account, in keeping with the [ACT] business rules for depository participants, all depository services for your account will be temporarily discontinued and the account will be frozen after giving two days notice to the client."
11. It is further pleaded that without prejudice to submissions of the defendant that the plaintiff was solely responsible for the non-execution of [CASE NUMBER] dated 12.06.2003, the defendant submits that the plaintiff has not come before this Court with clean hands in as much as the plaintiff has suppressed material facts that as a result of non-execution of [CASE NUMBER] dated 12.06.2003 of the plaintiff for the transfer of 2300 shares of Bajaj Auto Ltd., the plaintiff would have gained a sum of Rs. 346, 728.90/- if the plaintiff had sold the shares on 29 August 2003, when the said fact was made aware to the plaintiff. Thus it would be clear that no loss has occurred to the plaintiff on account of non-execution of [CASE NUMBER] dated 12.06.2003 of the plaintiff for the transfer of 2300 shares of Bajaj Auto Ltd. As on 11 January 2005 the plaintiff holds 1963 shares and if it sold the same it would make a gain of Rs. 10 lakhs. On this ground alone the suit is liable to be dismissed with exemplary costs.
12. It is further pleaded that the defendant humbly submits that even if it is assumed that the plaintiff suffered the alleged loss for any reason attributable to the defendant, still the plaintiff in law or equity is not entitled to seek any [PRECEDENT] [CASE NUMBER] recovery of alleged loss suffered on account of inability to deliver the shares on a particular date, since the plaintiff had not sold the shares in the market on the first opportunity available to it. The plaintiff continued to hold most of the shares of Bajaj Auto Ltd. which it attempted but failed to sell vide [CASE NUMBER] dated June 12, 2003 with the intent to reap the benefit of the upswing in the market price of the shares.
13. Replication has been filed by the plaintiff in response to the written statement filed by the defendant. In the replication, contents of the written statement have been denied while contents of the plaint have been reaffirmed as true and correct.
ISSUES
14. Issues were framed by the Ld. Predecessor of the Court by the order dated 28.04.2005:
i) Whether the suit of the plaintiff is liable to be dismissed under [SECTION], [ACT] as alleged in para no.1 of the preliminary objections?(OPD)
ii) Whether the suit of the plaintiff is liable to be dismissed as alleged in para no. 2,3&4 of the preliminary objections? (OPD)
iii) Whether the suit of the plaintiff is malafide as alleged in para no.5 of the preliminary objection? (OPD)
iv) Whether the plaintiff is entitled for a decree for recovery of Rs.
1,35,055.40/-or any other amount as claimed in the plaint? (OPP)
v) Whether the plaintiff is entitled to interest? If so on what amount, at what rate and for what period? (OPP)
vi) Relief Evidence
15. To prove his case, the plaintiff has examined Sh. [ENTITY] as PW-1 and reiterated the facts as mentioned in the plaint and relied upon following [PRECEDENT] Page No:7/20 [CASE NUMBER] documents:
Ex. PW-1/1 : Certified true copy of the resolution dated 14.04.2005 Ex. PW-1/2 : Certified true copy of the resolution dated 04.05.2004 Ex. PW-1/3 : Photocopy of [CASE NUMBER] dated 12.06.2003 Ex. PW-1/4 : Letter dated 16.06.2003 Ex. PW-1/5 : Copy of reminder dated 17.06.2003 Ex. PW-1/6 : Copy of reminder dated 20.06.2003 Ex. PW-1/7 : Letter dated 24.06.2003 Ex. PW-1/8 : Office copy of reminder dated 30.06.2003 Ex. PW-1/9 : Office copy of reminder dated 08.07.2003 Ex. PW-1/10 : Office copy of reminder dated 25.07/2003 Ex. PW-1/11 : Office copy of reminder dated 02.08.2003 Ex. PW-1/12 : Postal receipt Ex. PW-1/13 : Reminder dated 18.08.2003 Ex. PW-1/14 : Postal receipt Ex. PW-1/15 : Another copy of reminder dated 18.08.2003 Ex. PW-1/16 : Office copy of the reminder dated 18.08.2003 sent to the defendant Ex. PW-1/17 : Postal receipt Ex. PW-1/18 : Another copy of reminder dated 18.08.2003 [PRECEDENT] [CASE NUMBER] bearing original endorsement of the defendant Ex. PW-1/19 : The office copy of the reminder dated 18.08.2003 sent to SEBI Ex. PW-1/20 : Postal receipt Ex. PW-1/21 : Another copy of the reminder dated 18.08.2003 bearing the endorsement of SEBI Ex. PW-1/22 : Original letter dated 21.08.2003 Ex. PW-1/23 : Reply dated 27.08.2003 Ex. PW-1/24 : Original letter dated 30.08.2003 Ex. PW-1/25 : Office copy of the reminder dated 25.09.2003 Ex. PW-1/26 : Office copy of the reminder dated 25.09.2003 bearing original endorsement Ex. PW-1/27 : Original letter dated 20.10.2003 Ex. PW-1/28 : Office copy of the reply 27.10.2003 to the letter dated 20.10.2003 of the defendant Ex. PW-1/29 : Copy of the letter dated 10.11.2003 Ex. PW-1/30 : Office copy of the letter dated 20.11.2003 bearing the original endorsement of the SEBI Ex. PW-1/31 : Office copy of the letter dated 20.11.2003 bearing the original endorsement of the defendant Ex. PW-1/32 : Office copy of the letter dated 05.10.2004 [PRECEDENT] Page No:9/20 [CASE NUMBER] Ex. PW-1/33 : Office copy of the legal notice dated 05.05.2004 Ex. PW-1/34 : Original registered post Ex. PW-1/35 : Original UPC slip Ex. PW-1/36 : Reply to the legal notice dated 05.05.2004 Ex. PW-1/37to : Original contract notes respectively Ex. PW-1/39 Ex. PW-1/40 & 41 : Original bills dated 16.06.2003 and 20.062003 Ex. PW-1/42 : Original statement of Account
16. To defend itself defendant examined Sh. [ENTITY], Principal Officer and Attorney of defendant Bank as DW-1 who reiterated the facts as mentioned in the written statement and relied upon the following document:
Mark A : Power of Attorney Ex. DW-1B : Reminder dated dated 27.03.2003 by the defendant to the plaintiff Ex. DW-1C : Reminder dated 29.04.2003 sent by the plaintiff to the defendant
17. Final arguments are heard. The record is perused. The issue-wise findings are as under:
"Whether the suit of the plaintiff is liable to be dismissed under [SECTION], [ACT] as alleged in para no. 1 of the preliminary objections? OPD"
[PRECEDENT] [CASE NUMBER]
18. The onus to prove this issue was upon the defendant. It is contended that the plaintiff has no cause of action and therefore, the plaint is liable to be rejected under [SECTION], [ACT]. In order to decide whether the plaint is liable to be rejected, only the plaint has to be seen and not the defence of the defendant. It is a case of the plaintiff that cause of action arose when the defendant did not carry out the instructions given by the plaintiff to the defendant which has allegedly caused loss to the plaintiff.
19. The averment that the instructions were not carried out since the account of the plaintiff was frozen due to non-payment of charges is a defence which can not be looked at while deciding if the plaint is to be rejected. Even otherwise, the plaintiff has denied having received a two days notice which is a prerequisite to the freezing of account. Therefore, this issue is decided against the defendant and in favour of the plaintiff.
"Whether the suit of the plaintiff is liable to be dismissed as alleged in para no. 2, 3 & 4 of the preliminary objections? (OPD)"
"Whether the plaintiff is entitled for a decree for recovery of Rs.1,35,055.40/- or any other amount as claimed in the plaint? (OPP)"
20. The onus to prove issue no. 2 was upon the defendant and onus to prove issue no. 4 was upon the plaintiff. Both these issues shall be decided together. It is the case of the plaintiff that instructions were given to the defendant by the document proved as Ex.PW1/3. It is contended that the defendant wrongly did not [PRECEDENT] [CASE NUMBER] carry out the said instructions.
21. The defendant has contended that the instructions given by the plaintiff were not carried out as the account of the plaintiff with the defendant bank was frozen due to non-payment of charges.
22. Whether the defendant was wrong in not carrying out the instructions given to it by the plaintiff?
23. As per the defendant's own admission, the instructions of the Depository Account Opening Form prescribe that the account can be frozen after giving a 2 days notice to the client. The defendant is relying on 'Final Reminder' dated 29.04.2003 proved as Ex.DW1/C as a 15 days notice given to the plaintiff that its account will be frozen. The plaintiff had objected to the mode of proof of document Ex.DW1/C. The objection was not decided by the Ld. Predecessor of this Court. In any case, since the plaintiff has denied having received the document and since the defendant has not proved how the document Ex.DW1/C was delivered to the plaintiff, the same can not be considered as a notice duly served upon the plaintiff of its account being frozen. In the cross examination dated 06.08.2011, DW1 deposed the following:-
"There are different modes of sending a letter by the bank to the client/party. I am not sure as to by which mode letters Ex.DW-1/B and Ex.DW-1/C were sent to the plaintiff. After going through the court record, I say that it is correct that we have not placed on record any postal receipts or fax delivery report on the court record with regard to the postage and/or sending the above mentioned two letters by fax to the plaintiff."
[PRECEDENT] Page No:12/20 [CASE NUMBER]
24. Therefore, as a notice of friezing of account was not given to the plaintiff in accordance with the instructions in Depository Account Opening Form which is admitted by the defendant to be a prerequisite, the defendant wrongly froze the account of the plaintiff. It is therefore held that the defendant was wrong in not carrying out the instructions given to it by the plaintiff.
25. Whether the plaintiff suffered any loss due to the failure of the defendant in carrying out instructions?
26. The defendant has denied that the plaintiff has suffered a loss due to the defendant not carrying out the instructions of the plaintiff. It is contended by the defendant that the rate of the shares has increased after the date of contact of the plaintiff.
There are three rules of mitigation as mentioned in Indian Contract & Specific Relief Acts by [ENTITY] & [ENTITY], Vol.1, Twelfth Edition which are reproduced hereinbelow:
The doctrine of mitigation has been stated as governed by three rules. Firstly, the plaintiff cannot recover the loss consequent upon the default of the defendant if the plaintiff could have avoided the loss by taking reasonable steps. Secondly, if the plaintiff avoids or mitigates the loss, he cannot recover for such avoided loss even if he takes steps which are more than what was reasonably required of him. Thirdly, where the plaintiff suffers loss or incurs expense by taking reasonable steps to avoid or mitigate the loss resulting from the defendant's default, he may recover the further loss or expense from the defendant."
The following provision of [ACT] is also relevant:
[PRECEDENT] Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted or (if no time was fixed for acceptance) at the time of the refusal to accept."
Even though in the facts of the present case, there is no refusal to accept goods, however, the aforementioned provision can be taken into consideration to understand how the the alleged loss of the plaintiff is to be measured.
Explanation to [SECTION] of the [ACT] reads as under: "In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused-by the non-performance of the contract must be taken into account."
In the case of [PRECEDENT] decided by the Hon'ble Delhi High Court on 05.02.2010 in [CASE NUMBER], it has been held that measure of damages is that the difference in the contract price and the price on the date of breach. The following portion of the judgment is relevant:
"Consequently, in a case like the one in hand, measure of damages would be the difference in the contract and market price on the date of breach. Both the parties have also taken the stand that there was an available market price for the contracted goods on the date of breach
Moreover, in my view, law does not mandate that respondent-claimant is bound to sell on the date of breach to establish the market price."
[PRECEDENT] [CASE NUMBER] In the present case, the date of breach is 16.06.2003. The parties have not brought on record the price that was in existence on 16.06.2003.
In [PRECEDENT]. Reported in [PRECEDENT], the Hon'ble Supreme Court has clearly laid down the test of measure of damages as under:
"The two principles on which damages in such cases are calculated are well-settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what the contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed; but this principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps Even if the respondent did not actually buy them in the market at Kanpur on the date of breach it would be entitled to damages on proof of the rate for similar canvas prevalent in Kanpur on the date of breach, if that rate was above the contracted rate resulting in loss to it. But the respondent did not make any attempt to prove the rate for similar canvas prevalent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course of things."
Since the plaintiff has not proved the price on the date of breach, in view of the aforementioned decision, the plaintiff shall not be entitled to recover the alleged loss that it would have suffered if the price of 16.06.2003 would have been lesser than the contract price. Even if in the circumstances of the present case it is presumed that the plaintiff could not have been expected to sell/auction the shares on 16.06.2003, and we consider the price of 17.06.2003 as this was the date when the plaintiff had the first opportunity to sell/auction the shares, it still [PRECEDENT] [CASE NUMBER] cannot be held that the plaintiff suffered the loss as it claims to have suffered.
27. It is the case of the plaintiff that since the defendant did not carry out the instructions of the plaintiff, "the" shares had to be auctioned on 17.06.2003. It is also admitted by the plaintiff that on 17.06.2003, the price was higher than the price on 12.06.2003 i.e. the date when the contract price was fixed. It is admitted by the plaintiff that the money that was obtained on auction was more than the money which the plaintiff would have received if the defendant had carried out plaintiff's instructions. Therefore, it cannot be held that the plaintiff suffered a loss. Since the plaintiff has not suffered any loss, it can not seek indemnification towards the same from the defendant, except to the extent of penalty that it had to pay for not performing its part of the contract. As per the short written submissions filed on 16.12.2012, the penalty paid by the plaintiff is Rs.26,105/-. This amount of penalty has also been proved by way of document Ex.PW1/6. The plaintiff shall also be entitled to the interest on this amount. The rate of interest of 24% per annum that the plaintiff is claiming is not based on a written contract and in my view is high. The Hon'ble High Court of Delhi in [PRECEDENT] decided on 17th January, 2012 has held the following:
"6. Though, learned counsel for the respondent/defendant has not argued one aspect with respect to the interest, I however feel in the facts and circumstances of the case, the appellant/plaintiff ought not to be granted interest at 24% per annum for the pre-suit period and at 18% per annum pendente lite and future as claimed by the appellant/plaintiff. I may note that the Supreme Court in the recent catena of judgments reported as Rajendra Construction Co. v.
[PRECEDENT] Page No:16/20 [CASE NUMBER] Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, [PRECEDENT], [PRECEDENT], Krishna Bhagya Jala Nigam Ltd.
v. G.Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC) has held that the Courts should be alive to the change of interest regime, and Courts should reduce the unnecessary high rates of interest, especially considering the long pendency of litigation. A Division Bench judgment of this Court in the case of [PRECEDENT], has also held that the rate of interest for the pre- suit period, if the same is unnecessarily excessive, is violative of public policy.
7. Accordingly, in view of the aforesaid judgments of Supreme Court and a Division Bench judgment of this Court I deem it fit that the pre- suit interest, pendente lite interest and future interest till payment should be at 12% per annum simple and which is granted accordingly."
28. I deem it fit to award pre-litigation interest at the rate of 9% per annum. It appears from the document Ex.PW1/40 that the penalty was imposed on the plaintiff on 20.06.2003. So, the plaintiff is awarded Rs.26,105/- alongwith interest @ 9% per annum from 20.06.2003 till the date of institution of the suit.
29. During the course of arguments that took place on 06.12.2012, it was given to understand that since the defendant did not transfer the shares of the plaintiff to M/s Bharat Bhushan Equity Traders Ltd., the latter had to buy the shares from the open market by way of auction. It was submitted that since the rate had increased on 17.06.2003, M/s Bharat Bhushan Equity Traders Ltd. had to pay a higher price which it recovered from the plaintiff. M/s Bharat Bhushan Equity Traders Ltd. also imposed penalty on the plaintiff. It was submitted that the plaintiff by way of present suit is seeking to recover the amount that M/s [PRECEDENT] [CASE NUMBER] Bhushan Equity Traders Ltd. charged the plaintiff i.e. higher amount that M/s Bharat Bhushan Equity Traders Ltd. had to pay and the penalty imposed.
30. On perusal of the record, it is noticed that the aforesaid has not been stated in the plaint nor has it come in evidence of the plaintiff. It has not come in the plaint or in the testimony of PW1 that M/s Bharat Bhushan Equity Traders Ltd. purchased shares from the open market at a higher price and that loss of M/s Bharat Bhushan Equity Traders Ltd. was indemnified by the plaintiff which it now claims from the defendant. All that has come in evidence is that non-execution of instructions led to "auction of the said shares". Even in the short written submissions filed on 06.12.2012, it has been stated that "the shares were auctioned on 17.06.2003". In cross examination of PW1, PW1 has testified "I have sold my shares through the documents Ex.PW1/37 to Ex.PW1/42". As discussed above, the auction of shares has admittedly fetched a higher price. Therefore, it cannot be said that the plaintiff suffered a loss except to the extent of penalty that it had to pay for failure to transfer shares. In these circumstances, issue no. 2 is decided in favour of defendant and against the plaintiff in part and issue no. 4 is decided in favour of the plaintiff and against the defendant in part. The plaintiff is awarded a sum of Rs.26,105/- alongwith interest @ 9% per annum from 20.06.2003 till the institution of the suit.
ISSUE No.3 "Whether the suit of the plaintiff is malafide as alleged in para no. 5 of the preliminary objection? (OPD)"
[PRECEDENT] Page No:18/20 [CASE NUMBER]
31. The onus to prove this issue was upon the defendant. The defendant has not come forward to disclose the basis of the allegation that the suit has been filed with malafide intentions. As has already been discussed in Issue no. 1, the plaintiff appears to have a valid cause of action to file the present suit. It cannot be held that it was filed with malafide intention. This issue is therefore decided against the defendant and in favour of the plaintiff.
"Whether the plaintiff is entitled to interest? If so on what amount, at what rate and for what period? OPP"
32. The onus to prove this issue is upon the plaintiff. It has already been held while deciding issue no. 4 that the plaintiff is entitled to pre-litigation interest at the rate of 9% per annum. No evidence has been led by the parties on this issue. Plaintiff is entitled to interest i.e. Pendente-lite interest at the rate of 9% per annum from the date of filing of the present suit till date of decree and future interest at the rate of 9% per annum from the date of decree till its realisation on decreetal amount.
Issue No. 6 -Relief
33. In view of the above mentioned discussion, the suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs.26,105/- alongwith 9% interest for the period 20.06.2003 till the institution of the suit and pendente-lite interest @ 9% p.a., from the date of filing of preset suit till the date of decree and future interest @ 9% p.a., from date of decree till its realisation on [PRECEDENT] [CASE NUMBER] amount. Decree sheet be prepared accordingly. File be consigned to record room.
(ANNOUNCED IN THE OPEN COURT) ([ENTITY]) ON 20th Of December 2012 CIVIL/JUDGE/CENTRAL-01 ALL PAGES SIGNED [PRECEDENT] Page No:20/20 [CASE NUMBER]