RSA No. 4228 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4228 of 2010 (O&M) Date of decision: November 30, 2010 Mohinder Singh ...Appellant Versus Balbir Singh Walia and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. K.S. Boparai, Advocate, for the appellant. GURDEV SINGH, J. Appellant/defendant-Mohinder Singh, against whom the suit filed by the respondent/plaintiff-Balbir Singh Walia, for recovery of ` 1,15,500/-; ` 1 lakh as principal amount and ` 15,500/- as interest, was decreed by the trial court and the first appeal was dismissed by the appellate court, has come up with this second appeal. The plaintiff came up with the case that the defendant requested him to borrow money from him on account of urgent need. He advanced a sum of ` 1 lakh by means of three bank drafts and he agreed to re-pay that amount on or before 30.9.1997, but failed to do so, inspite of repeated requests. The plaintiff claimed interest on the amount so advanced @ 24% as per custom and usage prevailing in the market. The claim of the plaintiff was contested by the defendant. He came up with the plea that no such amount was advanced to him by the plaintiff. In fact, Tarlochan Singh Walia, who is the real brother of the RSA No. 4228 of 2010 2 plaintiff, entered into an agreement dated 5.5.1997 with him, vide which he agreed to purchase 25% share of Renuka Packages private Limited, Trilokpur Road, Kala Amb Nahan (HP), of which he is the Managing Director, for ` 23 lakhs and agreed to pay the total amount before the share could be transferred in his name and also agreed to clear the total payment in parts before 31.10.1997. It was one of the conditions of the contract that in case he failed to make the full payment by that date, the agreement shall be treated as cancelled and the amount paid by him be forfeited. The draft so mentioned in the plaint was given to him by that Tarlochan Singh Walia, who failed to make the payment of the balance price by the stipulated date and, as such, the agreement stood cancelled and the amount forfeited. On the pleadings of the parties, issues were framed and they were called upon to produce evidence in support of their respective cases. After going through the evidence so produced on the record and hearing learned counsel for both the sides, findings were recorded on all the issues by the trial court and the suit of the plaintiff was decreed for ` 1 lakh alongwith interest @ 9% per annum from the date of payment till the date of decree and future interest @ 6% per annum from the date of decree till the actual realization of the decreetal amount. The first appeal preferred by the defendant was dismissed by the first appellate court. I have heard learned counsel for the defendant. It has been submitted by the learned counsel for the defendant that the defendant successfully proved that there was no privity of contract between him and the plaintiff and there was no question giving any amount to him. In fact, the agreement was entered into with his brother Tarlochan RSA No. 4228 of 2010 3 Singh Walia, vide which he agreed to purchase 25% shares in his concern and on account of non-payment of the total consideration that agreement stood cancelled and the amount forfeited. Both the lower courts committed an illegality by not placing reliance on that evidence and, as such, it can easily be said that the findings recorded by those courts in favour of the plaintiff are perverse and that a substantial question of law arises in the present appeal. He also challenged the finding of those courts regarding the payment of interest on the ground that the interest was claimed by way of custom and usage prevailing in the market and no evidence was produced by the plaintiff to prove such custom and usage. Concurrent findings of facts were recorded by both the courts against the defendant. The agreement put forward by the defendant and exhibited as D.1 was found to be the result of collusion between him and Tarlochan Singh Walia. It was also found that the real sisters are married to the defendant and Tarlochan Singh Walia, which was motive on the part of that Tarlochan Singh Walia to execute an affidavit in favour of the defendants. It is pertinent to note that the draft in question was never issued in the name of M/s Renuka Packages Private Limited. The same was issued in the name of the defendant. That falsifies the contention of the defendant that the same was given for purchasing 25% shares of that concern. After careful perusal of the judgments of the lower courts, it has been found by this Court that the finding so recorded against the defendant does not suffer from any perversity nor it can be said that the same is based on the misreading of the evidence. It was a case of advancing of money and even in the absence of an agreement between the parties to pay the interest, the plaintiff still could RSA No. 4228 of 2010 4 have claimed the interest on the ground that he had been deprived of the use of this money. The interest so allowed by the lower courts is not on the higher side. No substantial question of law is involved in the present appeal and the same is hereby dismissed. November 30, 2010 (GURDEV SINGH ) prem JUDGE