In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.867 of 2006 ..... Date of decision:17.3.2008 Roop Singh .....Appellant v. Prem Nath and others .....Respondents .... Present: Mr. Rajesh Kumar Girdhar, Advocate for the appellant. Mr. J.S. Brar, Advocate for respondent No.1. ..... S.S. Saron, J. (Oral) The plaintiff-respondent No.1 filed a suit for recovery of Rs.2,47,700/- i.e. Rs.1,44,000/- as principal and Rs.1,03,700/- as interest on the basis of `Bahi' entry dated 14.12.1998. It is admitted case that defendant No.1-Roop Singh (appellant) had dealings with the plaintiff-respondent -Prem Nath. The plaintiff-respondent was doing the work of Commission Agent and defendant No.1-appellant used to sell his produce through the Commission Agency of the plaintiff. On 14.12.1998, Roop Singh took an amount of Rs.1,44,000/- as loan. The entry regarding this was thumb marked by defendant No.1 in the `Rokkar Bahi' of the plaintiff. Thereafter, on 18.1.1999, defendant through his son Bohar Singh (defendant No.2) took an amount of Rs.2,040/- and an entry to this effect was thumb marked by Bohar Singh (defendant No.2) on 15.3.1999. Thereafter, on 15.3.1999 Bohar Singh (defendant No.2) took an amount of Rs.270/- in cash and another amount of Rs.491/- on 7.4.1999. On 16.4.1999, an amount of R.S.A. No.867/2006 [2] Rs.1,500/- in cash was received by defendant No.1-appellant. On 29.4.1999, Roop Singh (defendant No.1-appellant) took an amount of Rs.1,000/- in cash. Entries in this regard were made in the `Rokkar Bahi' of the plaintiff. It is submitted that the plaintiff read over and explained the entries to defendants No.1 and 2 and they after admitting the same as correct, thumb marked on every entry. On 7.6.1999, Ajaib Singh (defendant No.3), brother-in-law of defendant No.1-appellant took an amount of Rs.3,450/- in cash from the account of defendant No.1-appellant. An entry to this effect was made in the `Rokkar Bahi' which was read over and explained to Ajaib Singh (defendant No.3). After adjusting the amount of Rs.2,000/- paid on 12.4.1999, Rs.2,625/- paid on 12.5.1999 and Rs.4,110/- paid on 29.6.1999 i.e. total amount of Rs.8,735/- by defendant No.1- appellant, an amount of Rs.1,44,000/-, it was stated, was still due from the defendants. Defendant No.1 had agreed to pay interest @ 2% per month and also customary rate of interest prevalent in the market on such advances made to the customers. The defendants denied the averments made by the plaintiff and stated that the suit was not maintainable. Besides, it was bad for non-joinder and misjoinder of necessary parties It was also stated that excess rate of interest had been charged. The defendants, in fact, had never agreed to pay interest @ 2% per month. The learned trial Court vide its judgment and decree dated 28.7.2004 partly decreed the suit of the plaintiff and a decree for recovery of Rs.1,26,350/- along with interest @ 6% per annum from the date of institution of the suit till realization was passed in favour of the plaintiff and leaving the parties to bear their own costs. Defendant No.1-appellant filed an appeal before the District R.S.A. No.867/2006 [3] Judge, Faridkot and the learned District Judge vide judgment and decree dated 8.9.2005 dismissed the appeal of defendant No.1-appellant. The plaintiff-respondent had filed cross-objections which were partly accepted with costs. The impugned judgment and decree of the learned trial Court was modified to the effect that the suit of the plaintiff was decreed against defendant No.1-appellant for the recovery of Rs.1,36,765/- with proportionate costs along with interest @ 12% per annum from the date of advancement of loans to defendant No.1 till date of decree of the lower Court. Besides, future interest @ 6% per annum from the date of decree of the lower Court till the realization of the decretal amount was passed. Aggrieved against the judgment and decree of the learned District Judge, Faridkot, defendant No.1-appellant has filed the present appeal. Learned counsel appearing for the appellant has submitted that the `Bahi' entries that have been produced on record by the plaintiff- respondent are entries which are maintained by the plaintiff-respondent himself and these have not been corroborated by any other evidence on record. It is contended that the plaintiff was assessed to income-tax and, therefore, the income-tax records were liable to be produced to corroborate the entries recorded in the `Bahi'. Therefore, for non-production of the income-tax records it is submitted an adverse inference is liable to be drawn against the plaintiff. It is submitted that the learned lower appellate Court has gravely erred in not accepting the said contention raised on behalf of defendant No.1-appellant. It is further contended that the rate of interest awarded by the learned District Judge, Faridkot is unduly high and the same R.S.A. No.867/2006 [4] is liable to be reduced to that awarded by the learned trial Court. In response, learned counsel appearing for the plaintiff- respondent has contended that non-production of the income-tax records is absolutely inconsequential as the `Bahi' entries have been duly thumb marked and proved on record. Therefore, it is submitted that the findings of facts recorded by learned both the Courts below are just and reasonable. It is further submitted that the learned lower appellate Court has awarded interest @ 12% per annum which has been based on the Reserve Bank of India interest rates. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and perused the judgments of the Courts below. The findings recorded by the Courts below are based on evidence and material on record and are findings of facts. Both the Courts below have concurrently held the plaintiff-respondent to be entitled to the amount of Rs.1,36,765/- along with interest. The said findings admittedly are pure findings of facts. The mere fact that the income-tax records were not produced is hardly of any consequence as it has conclusively been held by the learned lower appellate Court that defendant No.1-appellant borrowed a sum of Rs.1,44,000/- on 14.12.1998 and Rs.15,000/- on 16.4.1999 from the plaintiff and thumb marked the entries of the `Rokkar Bahi', which are Ex.P.1 and Ex.P.5. Therefore, it was held that the plaintiff was entitled to recover the said amount from defendant No.1-appellant. As regards the amount of Rs.7,235/- allegedly taken by defendants No.2 and 3 in the accounts of defendant No.1 from the plaintiff-firm, it was held that the plaintiff was not entitled to recover the same from defendant No.1 as the R.S.A. No.867/2006 [5] entries regarding these transactions were thumb marked/signed by defendants No.2 and 3 on the accounts books of the plaintiff. It was also held that the plaintiff had not produced any documentary evidence to prove that defendant No.1 had instructed/authorized the plaintiff to make payment to defendants No.2 and 3 in his accounts. In the circumstances, it was held that the plaintiff was entitled to recover an amount of Rs.1,36,765/- from defendant No.1. The interest has been awarded @ 12% per annum by taking into account the instructions of the Reserve Bank of India regarding rates of interest which have been awarded from the date of advancement of loan to defendant No.1 till date of decree of the lower Court and future interest thereafter @ 6% per annum. Therefore, the question as to what rate of interest is liable to be fixed which is to be paid to the plaintiff. In Clariant International Ltd. and another v. Securities & Exchange Board of India, (2004) 8 SCC 524, it was held that in absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate. Such interest is payable upon establishment of the totality of circumstances justifying exercise of such equitable jurisdiction. When a benchmark is fixed by a statute, the question as to whether a discretion has been judicially or properly exercised or not will have to be determined in the context of the facts of the particular case. When a benchmark is fixed or the court grants interest at the agreed rate, it may not be necessary to give reasons, but where interest is granted at a higher or lesser rate, some reasons are required to be assigned. The courts of law can take judicial notice of both inflation as also fall in bank rate of interest. The bank rate of interest both for commercial purposes and other purposes has been the subject- R.S.A. No.867/2006 [6] matter of statutory provisions as also judge-made laws. Even in cases of victims of motor vehicle accidents, the courts have upon taking note of the fall in the rate of interest held 9% interest to be reasonable. Therefore, in the circumstances, in the present case the appropriate rate of interest is liable to be fixed at 9% per annum. Therefore, in view of the above, I find no ground to interfere with the judgment and decree of the trial Court, however, it would be just and expedient that the rate of interest which has been awarded @ 12% per annum from the date of advancement of loan to defendant No.1 till the date of decree is reduced to 9% per annum. Accordingly, the suit of the plaintiff-respondent filed for recovery of Rs.1,36,765/- which has been decreed by the learned District Judge, Faridkot shall remain intact. However, the proportionate costs along with interest shall be @ 9% per annum from the date of advancement of loan to defendant No.1 till the date of decree of the trial Court and future interest @ 6% per annum from the date of the decree of the trial Court till the realization of the decretal amount. Accordingly, the judgment and decree of the learned District Judge with its modification with regard to the rate of interest @ 9% per annum from 12% per annum in the manner indicated above shall stand dismissed. March 17, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No