HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 124 of 1999 Reserved on: 16.6.2009 Decided on: 17.6.2009 Rakesh Goel and another ………Appellants. Versus M/s Kisan Cold Storage & Ice Factory ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellants: Mr.Dharamvir Sharma, Advocate. For the respondent: Mr.Ajay Sharma, Advocate. V.K. Ahuja, J: This is a regular first appeal filed by the appellants under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 22.3.1999, passed by the learned District Judge, Una, vide which the suit of the respondent/plaintiff for recovery of Rs.3,40,147/- alongiwth interest at the rate of 12%, was decreed as against the appellant/defendants. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes - 2 - Briefly stated the facts of the case are that the respondent as plaintiff filed a suit for recovery of Rs.3,40,147/- as against the appellants, who were impleaded as defendants. The suit was filed on account of arrears of rent for storage of potatoes in the cold storage of the plaintiff, with interest and other charges. The allegations made by the plaintiff were that the plaintiff- Firm was running a cold storage in the name and style of M/s Kisan Cold Storage & Ice Factory, Amb Road, Una. The defendants were also owners of a cold storage at Yamuna Nagar. Defendant No.1, owner of defendant No.2/Firm, came to Una and wanted to store potatoes in the plaintiff’s cold storage. The defendants stored 3123 bags in the plaintiff’s cold storage on a rental of Rs.80/- per bag w.e.f. 17.4.1997 to 10.10.1997. It was also alleged that the defendants made payment of Rs.5,000/-, as advance. The plaintiff agreed to the proposal and the transportation charges and taxes were to be paid by the plaintiff. It was further alleged that the potato bags were sent by defendant No.1, which were unloaded in the cold storage of the plaintiff. The plaintiff paid the transportation charges to the extent of Rs.67,600/- as the potato bags were sent by defendant No.1 to the cold storage of the plaintiff in 20 trucks w.e.f. 17.4.1997 to 24.4.1997. The plaintiff alleged that the defendants neither paid the storage charges of the aforesaid bags of the potatoes, nor paid the - 3 - transportation charges inspite of demand. Hence the suit for the recovery of the amount alongwith interest filed by the plaintiff. In the written statement filed by the defendants, they took up preliminary objections in regard to the maintainability, verification etc. On merits, they admitted that they had sent 3123 bags of potato seeds from 17.4.1997 to 24.4.1997 but the payment of transportation charges was made by the defendants. They also took up the plea that they had paid Rs.15,000/- as advance rent to the plaintiff and the rate settled was Rs.45/- per bag and not Rs.80/-, as pleaded by the plaintiff. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the plaint is not properly signed and verified? OPD 2. Whether the plaintiff is entitled to recover Rs.3,40,147/- as arrears of rent and transportation charges from the defendant as alleged in the plaint? OPP 3. Whether the defendants have already paid Rs.15,000/- to the plaintiff as advance as alleged? OPD 4. Whether the suit has been filed by the authorized persons? OPP 5. Whether the plaintiff is entitled to charge interest to the extent of Rs.17,372/- and Rs.10,335/- from the defendants, if so, at what rate of interest? OPP 6. Relief. Parties led their evidence and the learned trial Court, vide its impugned judgment, held that the plaintiff was entitled to recover the full amount as - 4 - arrears of rent and transportation charges, as claimed by the plaintiff. It was also held that the defendants have not paid Rs.15,000/- as advance, as alleged by the defendants. The plaintiff was also held entitled to interest at the rate of 12% from the date of filing of the suit till realization of the decretal amount. I have heard the learned counsel for the parties and have gone through the record of the case. During the course of arguments, the learned counsel for the appellants had not disputed the fact that 3123 bags were sent by the defendants to the plaintiff for storage and that these potato seed bags were kept in the cold storage of the plaintiff from 17.4.1997 to 10.10.1997. The fact that this much number of bags of potato seeds were sent from 17.4.1997 to 24.4.1997 was not denied by the defendants in their written statement and they had not specifically denied that these potato seed bags were kept in the cold storage of the plaintiff for the period alleged in the plaint from April 1997 to October 1997. Therefore, the learned counsel for the appellants had confined his arguments mainly on the ground that the rate settled in between the parties was Rs.45/- per bag and not Rs.80/- per bag, as alleged by the plaintiff. It is also submitted that the payment of transportation charges were made by an employee of the defendants and not by the plaintiff. The learned counsel for the appellants also challenged the - 5 - grant of interest at the rate of 12% by the learned trial Court and therefore, the findings of the learned trial Court have been challenged mainly on these three grounds. Coming to the first ground taken during the course of arguments in regard to the rate if it was Rs.45/- or Rs.80/-, per bag, the impugned judgment shows that in paragraph 19 of the judgment, the learned trial Court had referred to the receipts proved on record as Exts.P-8 to P- 28, in which the rental has been mentioned as Rs.80/-. These receipts are of different dates of the period in April 1997. In his statement as DW-4, defendant Rakesh Goel has not specifically stated that the rate of Rs.80/- mentioned in these receipts was incorrect or that it was never settled in between the parties. The defendants have only placed reliance on a complaint Ext.DC made by him in which, for the first time, the complaint was made that the rate of rent was Rs.45/- per bag, but this complaint is dated 17.10.1997, which shows that this may have been sent by the defendants to create evidence since a dispute had already arisen in between the parties. The learned trial Court has referred to some over-writings in this letter in regard to the number of bags and had not relied upon the said complaint. The learned trial Court had also referred to a letter Ext.P-1 written by Vipin Kumar, brother of defendant No.1, that the plaintiff can charge interest w.e.f. 1.5.1997 on the payment which was due as against the - 6 - defendants on account of storage of potatoes. The details of payment to the extent of Rs.67,600/- has also been written on the back of the letter by the said Vipin Kumar. He had not stepped into the witness box to deny this letter and the defendant has also not proved that he was not authorized to make any such submissions on his behalf. The learned trial Court has also referred to the question that when the transportation charges are paid by the owners/drivers, the GRs will be in the possession of the person paying the amount and in case the same had been paid by the defendants in advance while sending the potato bags, the GRs should have been in possession of the defendants, but they were in the possession of the plaintiff, as admitted by DW-4 Rakesh Goel (defendant). The learned trial Court has also referred to the fact that the defendant had taken plea that this amount was paid on their behalf by one Ramji Dass, who was staying at Una during this period and had made the payments. However, the defendant had not been able to state as to where this person was living, whether he was an employee of the defendants and he has also not been produced to substantiate the plea taken by the defendants. No such receipt taken by the said Ramji Dass, while making the payment to the truck owners/drivers, has also been produced on record. - 7 - It is, therefore, clear from the above discussion that the learned trial Court had rightly concluded that the rate of rent per bag was Rs.80/- and that transportation charges to the extent of Rs.67,600/-, as claimed by the plaintiff, were also paid by the plaintiff at the time the plaintiff received the potato seed bags at Una. The only question left for consideration is in regard to the grant of interest at the rate of 12%. The plaintiff had claimed that he was entitled to interest at the rate of 18% per annum as per usage and practice prevalent in the market. However, the defendant, in his statement as DW-4, has not denied that the usual practice prevalent at that time was to pay the interest at the rate of 18%. According to the provisions of Section 34 of the Code of Civil Procedure, the Court can grant interest in case of money decree from the date of the suit to the date of decree at such rate as the court deems reasonable to be paid on the principal sum adjudged. The learned trial Court has granted interest from the date of the suit till realization of the decretal amount and according to the provisions of Section 34 of the Code of Civil Procedure, upto the date of decree, it could have been granted at any rate deemed reasonable by the court. Therefore, in so far as the grant of interest from the date - 8 - of suit till the date of decree is concerned, the grant of interest at the rate of 12% can be said to be permitted by law and it was reasonable as found by the learned trial Court. However, in so far as the grant of interest from the date of decree till realization is concerned, Section 34 of the Code of Civil Procedure provides that it can be granted at the rate of 6% per annum, but where the liability is in relation to the sum so adjudged had arisen out of a commercial transaction, it can exceed 6%, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transaction. Therefore, grant of interest at the rate of 12% from the date of decree till realization, by the learned trial Court, can also be said to be in accordance with law and the practice prevalent and it cannot be termed as unreasonable in any manner. In view of the above discussion, I accordingly hold that the findings of the learned trial Court are based upon correct appreciation of evidence and law and these do not call for an interference by this Court. Therefore, there is no merit in the appeal filed by the appellants which is dismissed alongwith costs. Decree sheet be drawn accordingly. June 17, 2009. (V.K. Ahuja), (TILAK) Judge.