R. S. A. No. 2417 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2417 of 2008 (O&M) Date of Decision : February 10, 2011 Subhash Chander Gagneja .... Appellant Vs. Krishana Kanta and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sandeep Punchhi, Advocate for the appellant. Mr. Mansur Ali, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : C. M. No. 7118-C of 2008 : This is application for impleading legal representatives of original plaintiff Kharait Lal, who died after decision by the lower appellate court and before filing of the instant second appeal. It is alleged that the deceased-plaintiff has left behind five persons, as mentioned in paragraph 2 of the application, as his only legal heirs. The application is accompanied by affidavit and is not opposed by the proposed legal representatives, who R. S. A. No. 2417 of 2008 (O&M) 2 have already put in appearance through counsel. Accordingly, the application is allowed, subject to all just exceptions and persons mentioned in paragraph 2 of the application are ordered to be impleaded as legal representatives of plaintiff Kharait Lal (since deceased) for the purpose of this appeal. Main Appeal : Defendant Subhash Chander Gagneja having lost in both the courts below has filed the instant second appeal. Suit was filed by Kharait Lal – plaintiff (since deceased and represented by respondents as his legal representatives) alleging that the defendant took loan of Rs.4,00,000/- vide cheque dated 10.08.2000 and agreed to repay the same with interest @ 2% per month, but did not repay the loan or interest in spite of requests including written notice. Accordingly, the plaintiff filed suit for Rs.4,00,000/- as principal amount and Rs.2,72,000/- as interest at the aforesaid rate, thereby seeking recovery of Rs.6,72,000/-. Stand of the defendant is of total denial. Learned Additional Civil Judge (Senior Division), Jalalabad, vide judgment and decree dated 15.09.2005, decreed the plaintiff's suit with cost holding the plaintiff entitled to interest @ 18% per annum from the date of advancement of loan till date of decree of the trial court and future interest @ 6% per annum till recovery. First appeal preferred by the R. S. A. No. 2417 of 2008 (O&M) 3 defendant has been dismissed by learned District Judge, Ferozepur vide judgment and decree dated 14.02.2008. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, learned counsel for the appellant pointed out that if decree of the trial court is read literally, it would mean that the suit has been decreed for recovery of the suit amount of Rs.6,72,000/-, which includes pre-suit interest of Rs.2,72,000/- and the plaintiff has also been awarded interest @ 18% per annum from the date of advancement of loan till date of decree of trial court, which includes pre-suit period as well, for which interest has already been included in the suit amount. However, learned counsel for the respondents conceded that the suit be deemed to have been decreed for recovery of principal amount of Rs.4,00,000/- with interest thereon @ 18% per annum from the date of advancement of loan till decree of the trial court and future interest @ 6% per annum. Consequently, the aforesaid contention is rendered infructuous. Even otherwise, it has to be in the manner that the suit is decreed for principal amount with interest, as stipulated by the trial court. That is the intent and meaning of the decree of the trial court, although not happily worded leading to confusion giving rise to contention, which has been raised by counsel for the appellant. However, the main question to be decided in this second appeal R. S. A. No. 2417 of 2008 (O&M) 4 is regarding rate of interest from the date of advancement of loan till date of decree of the trial court. Learned counsel for the appellant vehemently contended that interest @ 18% per annum for the said period, as awarded by the courts below is excessive and the same be reduced to 9% per annum. It was also contended that Section 80 of the Negotiable Instruments Act (in short – the Act) is not applicable as the suit amount is not due on account of any pronote, bill of exchange or cheque, executed or issued by the defendant-appellant. On the other hand, counsel for the plaintiff- respondents contended that Section 80 of the Act is applicable and therefore, interest @ 18% per annum for pre-suit period and pendente lite has been rightly awarded by the courts below. I have carefully considered the aforesaid contentions. In my considered opinion, Section 80 of the Act is not applicable because it was the plaintiff, who advanced the amount by way of cheque. The defendant has not issued any cheque, which may have been dishonoured. No pronote or bill of exchange is involved. If the amount had been due on account of cheque issued by the defendant, then Section 80 of the Act would have been applicable. In the instant case, however, it is not so. This conclusion becomes clear from bare reading of Sections 78, 79 and 80 of the Act together. The said sections are reproduced hereunder :- “78. To whom payment should be made – Subject to the provisions of section 82, R. S. A. No. 2417 of 2008 (O&M) 5 clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument. 79. Interest when rate specified – When interest at a specified rate is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the court directs. 80. Interest when no rate specified – When no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of eighteen per centum per annum, from the R. S. A. No. 2417 of 2008 (O&M) 6 date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs. Explanation – When the party charged is the indorser of an instrument dishonoured by non-payment, he is liable to pay interest only from the time that he receives notice of the dishonour.” It is manifest from the aforesaid provisions that if the amount is due on a pronote, bill of exchange or cheque, only then these provisions are attracted. In the instant case, the suit amount is not due on a cheque, which may have been issued by the defendant. Consequently, Section 80 of the Act is not applicable to the instant case. The next question is as to what would be the reasonable rate of interest. In my considered opinion, the reasonable rate of interest from the date of advancement of loan till the date of decree of the trial court shall be 12% per annum. Substantial question of law, arising in the instant second appeal, regarding rate of interest for the aforesaid period, is answered accordingly. For the reasons aforesaid, the instant appeal is allowed partly R. S. A. No. 2417 of 2008 (O&M) 7 and judgments and decrees of both the courts below are modified and suit filed by the plaintiff stands decreed for recovery of Rs.4,00,000/- with interest thereon @12% per annum w.e.f. 10.08.2000 – the date of advancement of loan till 15.09.2005 – the date of decree of the trial court and future interest @ 6% per annum w.e.f. 15.09.2005 – the date of decree of the trial court till recovery. February 10, 2011 ( L. N. MITTAL ) monika JUDGE