RSA No.168/2008 Page 1 of 3 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 13.12.2010 + RSA No.168/2008 M/S H.S.TRADERS ………..Appellant Through: Mr.Manoj Kumar, Advocate. Versus M/S LATEST WEARS ……….Respondent Through: None. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) CM No.10360/2008 (condonation of delay) There is no opposition to the application. The application is allowed. RSA No.168/2008 1. This appeal has impugned the judgment and decree dated 27.10.2004 which had modified the judgment of the Trial Judge dated 12.4.2004. Vide judgment and decree dated 02.4.2004 the suit of the plaintiff/appellant had been decreed in his favour along with interest @ 9% per annum from the date of filing of the suit. Defendant/appellant had filed an appeal; cross objections had been filed by the plaintiff. The appeal had been dismissed; the judgment of the Trial Judge dated 02.4.2004 had however been modified; interest was awarded to the plaintiff on the decreetal RSA No.168/2008 Page 2 of 3 amount @ 9% per annum from the date of the notice i.e. from July 1998. 2. The findings in the impugned judgment are reproduced hereinbelow: “19. A perusal of the plaint reveals that the respondent/plaintiff had prayed that the interest be paid from the date of institution till realization. In the plaint, the respondent/plaintiff had claimed an amount of Rs.1,35,819.40/- being the amount of the bills Ex.PW1/A to Ex.PW1/D and interest Rs.94,168/- being interest @ Rs.24% per annum from 21-7-99 till the filing of the suit. The Ld. Trial Court had awarded interest @ Rs.9% per annum only on the principal amount and that too from the date of the filing of the suit. The Ld. Trial Court should have kept in mind the fact that it was a commercial transaction. The respondent/plaintiff had sent a notice dated 27.5.98 (Ex.PW1/5) vide registered post. The postal receipt is Ex.PW1/G and the AD Card is Ex.PW1/1. No reply had been given by the appellant. In the cross-examination, it has been admitted by DW1 that the AD Card Ex.PW1/I bears the correct address of his factory. The UPC also bears the correct address. In these circumstances, a presumption against the appellant/defendant will have to be drawn. It will have to be taken that the notice had been duly served. Reliance can be placed on “P.C.Jain vs. J.P.Gupta” 1988 (25) DLT 279 and “K.Bhaskaran vs. Shanrana” AIR 1999 SC 3762. The Ld. Trial Court should have awarded the interest on the principal amount @ Rs.9% per annum from July, 1998. No reason has been given by Ld. Trial Court record as to why the respondent/plaintiff had been deprived of the interest. The cross objection of the respondent/plaintiff is, therefore, liable to be accepted. The respondent/plaintiff is entitled to claim interest @ Rs.9% per annum on the principal amount ofRs.1,35,819.40/- from July, 1998 till realization.” 3. On behalf of the appellant, it has been urged that a substantial question of law has arisen qua the bills which have been proved by the plaintiff which show that interest as to be awarded on delayed payments @ 24% per annum. The first Court had disposed of this argument of the learned counsel for the appellant while dealing with issue no.5. It had recorded a finding that the plaintiff had not led any evidence as to how he is entitled RSA No.168/2008 Page 3 of 3 to the afforested rate of interest. The aforestated judgment also recorded the finding reproduced herein above. The Court had exercised its discretion in awarding the interest @ 9% per annum; the Court below had specifically recorded that no evidence had been led by the plaintiff on this issue. The exercise of discretion is just and fair. It cannot in any manner termed to be arbitrary. No substantial question of law is made out. Appeal is dismissed. INDERMEET KAUR, J. DECEMBER 13, 2010 nandan