R.S.A. No. 4148 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4148 of 2008 (O&M) Date of decision: 20.1.2009 M/s Amrit Lal Bansal and sons (HUF) ....Appellant Versus Bank of India ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Arun Jain, Sr. Advocate, with Mr. Arun Bansal, Advocate, for the appellant. ***** VINOD K. SHARMA, J C.M. Nos. 12383-C and 12386-C of 2008 C.M. No. 12383-C of 2008 has been filed under Section 5 of the Limitation Act for condoning the delay of 4 years 11 months and 5 days in filing the appeal. It is pleaded that the appeal was filed within limitation on 20.12.2003 along with certified copies of the judgment and decree of the learned trial Court well as the judgment and decree of the learned lower appellate court, which was returned on 16.1.2004. By mistake, the clerk of the counsel kept the papers in some other brief. The said brief was said to have been recovered only in the second week of January, 2006 and refiled with application for R.S.A. No. 4148 of 2008 (O&M) -2- condonation of delay. The appeal was again returned and refiled on 23.3.2006, which was again returned and filed on 23.12.2006. The office again raised objection but the clerk never informed the counsel about the same and misplaced the file. It is pleaded that on checking from the Registry it was found that the case stood returned but the same was not traced out. Another application under Section 151 for condoning the delay of two years in refiling the appeal is also filed. The reasons given read as under: - "That by mistake the clerk of the counsel kept the paper book in some other brief. The applicant bonafide believed that the aforesaid appeal stood filed and shall be pending along with the appeal filed by the respondents. However, the counsel for the applicant discovered the same in the other papers in his office few days back. The appeal, thus could not be filed due to inadvertant mistake in office of the applicant. The fact came to the knowledge of the applicant only in second week of January, 2006. That immediately the applicant after removing the objections filed the same. Thus by that time more than 40 days had elapsed and a delay of about 2 years has occurred in refiling. Hence, the delay, if any, has occurred due to the aforesaid fact. There is no malafide and intentional delay on behalf of applicant." The explanation given for condonation of delay in filing as well as refiling the appeal cannot be accepted, in view of the law laid down by this Court in Krishan Dev Dhiman Vs. Mahesh Bhatia and others, 2008(4) PLR 23. Both the applications are ordered to be dismissed. R.S.A. No. 4148 of 2008 This regular second appeal has been filed against the judgment and decree dated 15.9.2003 passed by the learned lower appellate Court R.S.A. No. 4148 of 2008 (O&M) -3- vide which the judgment and decree passed by the learned trial Court was ordered to be set aside and the suit filed by the plaintiff/appellant was remanded with a direction to the bank to calculate the simple interest @ 13.5.% per annum and refund the excess amount, if any, charged to the plaintiff with interest @ 8.5% per annum from the date when it becomes due. The judgment and decree passed by the learned lower appellate Court was challenged by the respondent-bank. R.S.A. No. 551 of 2004 filed against the judgment and decree was dismissed by this Court on 18.9.2008. Thus, the judgment and decree under challenge stands affirmed by this Court. The contention of the learned counsel for the appellant was that the learned lower appellate Court erred in law in granting interest @ 8.5.% to the appellant whereas the bank was allowed to recover interest @ 13.5% per annum. It may be noticed that interest @ 13.5% has been granted to the bank because of the admission made by the plainitf/appellant in the earlier proceeding claiming that the loan was advanced to the plaintiff/appellant @ 13.5%. In support of his contention that appellant was also entitled to interest @ 13.5%, the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in Sovintorg (India)Ltd. Vs. State Bank of India, New Delhi (1999)6 Supreme Court Cases 406. However, it may be noticed that the said case has no application as the Hon'ble Supreme Court has dealt with the grant of interest under the Consumer Protection Act, 1986. R.S.A. No. 4148 of 2008 (O&M) -4- The present case is arising out of loan advanced by the bank on agreed terms. Thus, the reliance on the judgment of the Hon'ble Supreme Court in Sovintorg (India)Ltd. Vs. State Bank of India, New Delhi (1999)6 Supreme Court Cases 406 is misplaced. The learned counsel for the appellant also placed reliance on the Division Bench judgments of this Court in M/s Swastik Tubes Pvt. Ltd. Vs. Haryana Financial Corporation Ltd. 2006(1) P.L.R. 211, M/s Tirath Ram Ahuja Ltd. Vs. The State of Haryana through the Secretary, Excise and Taxation, Chandigarh and another 1996(3) P.L.R. 504, M/s Sada Shiv Castings Ltd. Vs. Punjab State Electricity Board through its Chairman and others 2008(2) R.C.R. (Civil) 524 and M/s Escotel Mobile Communication Ltd. Vs. State of Haryana and another 2007(4) R.C.R. (Civil) 124. In case of M/s Sada Shiv Castings Ltd. Vs. Punjab State Electricity Board through its Chairman and others and M/s Swastik Tubes Pvt. Ltd. Vs. Haryana Financial Corporation Ltd. (supra) this Court dealt with refund of taxes received in excess along with interest whereas in M/s Swastik Tubes Pvt. Ltd. Vs. Haryana Financial Corporation Ltd. (supra) the loanee was held entitled to refund of the excess amount of sale consideration retained by Corporation. In the present case, the loan was by way of two separate agreements, which stipulated the terms of the loan and thus, the judgments can have no application to the facts of the present case. At the cost of repetition, it can be said that the interest awarded to the bank is as per agreed terms and thus, no fault can be found with the finding recorded by the learned lower appellate Court. It R.S.A. No. 4148 of 2008 (O&M) -5- may also be observed that the judgment and decree stand approved by this Court in R.S.A. No. 551 of 2004. The appeal, therefore, raises no substantial question of law for consideration by this Court. Even otherwise, the applications for condonation of delay in filing as well as refiling the appeal stand dismissed. This appeal is accordingly dismissed on the ground of limitation as well as merit. (Vinod K. Sharma) Judge January 20, 2009 R.S.