IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No.125 of 1996 alongwith RFA No.13 of 1997. Date of decision: 12.03.2010. 1. RFA No.125 of 1996. Ram Gopal Saraf & Anr. ….Appellants Versus H.P. Financial Corporation & Ors. …Respondents 2. RFA No.13 of 1997. H.P. Financial Corporation …Appellant Versus M/s.Hypine Carbons Ltd. & Ors. …Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. The Hon’ble Mr.Justice Kuldip Singh,J. Whether approved for reporting ?1 No. RFA No.125 of 1996. For the Appellants: Mr.Ramakant Sharma Advocate. For Respondent No.1: Mr.Ajay Kumar, Advocate. For Respondent No.2: Mr.Tarlok Chauhan, Advocate. For respondent No.3(b): Mr.M.M. Khanna, Senior Advocate with Mr.Vayur Gautam, Advocate. RFA No.13 of 1997. For the Appellant: Mr.Ajay Kumar Advocate. For Respondent No.2(b): Mr.M.M. Khanna, Senior Advocate with Mr.Vayur Gautam, Advocate. For Respondent No.3: Mr.Ramakant Sharma, Advocate. For Respondent No.6: Mr.Tarlok Chauhan, Advocate. Per Dev Darshan Sud,J.(Oral). Both these appeals are being disposed of by a common judgment as they arise out of the same judgment of the Hon’ble Single Judge. The suit of the plaintiff-H.P. Financial Corporation was decreed for a 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 sum of Rs.57,19,487.06 denying interest to the plaintiff-Corporation on the ground that the litigation was protracted and tortuous. Both the plaintiff and the defendants have challenged this judgment. It is undisputed before us that the Financial Corporation instituted a suit for the amount as claimed in the plaint. It is also undisputed that a decree in terms of the suit amount as claimed in the plaint has been passed for the sum adjudged in favour of the plaintiff and against defendants No.2, 3, 5, 6 and 7 in the suit. Interest has been denied. Defendants No.1 and 4 in the suit were proceeded against ex-parte. Learned counsel appearing for the appellants (defendants in the suit) in RFA No.125 of 1996 submits that the Hon’ble Single Judge was not correct in law in refusing an opportunity to the defendants to file their written statement. We cannot accept this contention. The order sheet in Civil Suit shows that on 4.9.1980, an opportunity was granted by the Hon’ble Single Judge to these defendants to file their written statements. This Court records:- “4.9.1980. Present: Shri Kailash Chand counsel for the plaintiff. Sh.S.S. Ahuja counsel for defendants 2 & 3. Shri A.K. Goel counsel for defendants 5 to 7. 3 None for defendants 1 and 4. The defendants are directed to file their written statements on or before 17.9.1980, failing which it shall be presumed that they don’t want to contest the suit. O.M.P. No.148 of 1980. The plaintiff to file reply to this petition on 17.9.1980. Sd/- Sept.4, 80 (T.R. Handa) JUDGE.” When the case was taken up on a later date OMP No.162 of 1980 filed by the efendants No.2 and 3 praying for extension of time to file written statement, which application was rejected by the Hon’ble Single Judge on the ground that ample opportunity had been given to these defendants, while the application was disposed of by the Court holding:- “18.9.1980. Present: Shri Kailash Chand counsel for the plaintiff. Sh.S.S. Ahuja counsel for defendants 2 & 3. Shri A.K. Goel counsel for defendants 5 to 7. No written statement has been filed on behalf of defendants 2 & 3 inspite of the clear order dated 4 4.9.1980. It is, therefore, presumed that these defendants do not want to contest the suit. The defendants Nos.5 to 7 have filed their written statement. Copy of the same be delivered to the counsel for the plaintiff. Replication be filed within ten days. O.M.P. No.162 of 1980. The counsel for defendants Nos.2 and 3 has made an application praying for extension of one month’s time for filing the written statement. These defendants were served in April 1980 and have been allowed several opportunities for filing the written statements. No sufficient ground has been made out for granting any further time to these defendants for filing the written statement. This petition is accordingly dismissed. Sd/- Sept.18, 80 (T.R. Handa) JUDGE.” We find no infirmity in this order. A period of more than six months had been granted to the defendants to file written statement, but this opportunity was not availed by them. Another grievance made is that the learned Court did not give any opportunity to these defendants to lead evidence. We cannot accept this contention. 5 We find from the record that opportunity to cross- examine the witness of the plaintiff was granted to all defendants. We also find that by an order dated 22.7.1985 the parties to this suit closed their respective right to lead evidence. The order reads:- “22.7.1985. Present: Shri Kailash Chand, Advocate, ld. counsel for the plaintiffs. Sh.G.S. Ahuja, Advocate, for defendants No.2 & 3. Shri Inder Singh, Advocate, ld.counsel for defendants 5 to 7. The evidence of the parties is over. The statements of their counsels have been recorded. The case be now fixed for arguments. Dewan Govind Sahai was summoned for today, as a witness by defendants No.5 to 7. A sum of Rs.25/- was deposited towards his expenses in the Registry. The witness has brought to my notice that he has not been paid anything till now and further says that he has traveled from Delhi to Shimla in order to be present in the court today. The ld.counsel for the defendants No.5 to 7 has submitted that he has his residence at Shimla as well and that the process was issued to him at Shimla where he was served. The witness, however, further states that he has his houses at Shimla as well as Delhi. In these 6 circumstances, the appropriate course would be that the witness should move an application duly supported by an affidavit, if so advised. Sd/- July 22, 1985 (V.P. Bhatnagar) J.” We find from the bare perusal of the orders that the Hon’ble Single Judge on various occasions has been, to say the least, reasonable and granted ample opportunity to the defendants granting time for filing the written statement as also an opportunity to lead evidence. We cannot allow this appeal to be converted to an original trial after the lapse of a period of 30 years. The order also records that learned counsel for defendants No.2 and 3 was present and no prayer was made either for any extension or for production of evidence. The last contention raised by the learned counsel appearing for the appellant is that the amount realized in execution proceedings in the Court of learned District Judge, Solan have not been adjusted. Learned counsel appearing for the respondent submits that it is but natural if any such proceeds have been received, those would have been given details in the proceedings which may be instituted against the defendants. In RFA No.13 of 1997 the Financial Corporation, plaintiff in the suit, challenged the 7 decree denying interest to the plaintiff. While decreeing the suit, the Hon’ble Single Judge holds:- “For the reasons recorded above, the suit of the plaintiff-corporation is decreed and a decree for Rs.57,19,487.06 is hereby passed in favour of the plaintiff and against the defendants No.2, 3, 5, 6 and 7, whose liability shall be joint and several. In view of the protracted and tortuous nature of litigation between the parties no further interest is awarded, nor there will be any order as to costs. Decree-Sheet be prepared accordingly.” We cannot accept this to be the correct position in law. It is now well settled that under Section 34 of the Code of Civil Procedure interest at the agreed rate between the parties has to be granted. The reasoning adopted by the Hon’ble Single Judge cannot be upheld. The transaction between the parties was of a commercial transaction and there was no agreement stipulating that interest would not be charged. The law is now well settled that interest is to be granted at the agreed rate. It is undisputed before us that the transaction between the Financial Corporation and the respondent was of a commercial nature. Issue No.5, as framed on the pleadings of the parties, was with respect to the amount due to the plaintiff. While disposing of this 8 issue, the Court holds that a sum of Rs.57,19,487.06 was due from the defendants to the plaintiff on the date when the suit was instituted. However, interest from the date of suit till its realization has been denied to the plaintiff. As we held that there is no justification for denial of such interest on the reasoning as advanced by the Hon’ble Single Judge, we accordingly allow this appeal and modify the judgment and decree of the Hon’ble Single Judge and hold that the appellant-plaintiff shall be entitled to interest at the rate of 9% per annum as simple interest basis from the date of suit on the sum determined by this Court from the date of institution of the suit till its realization. Both appeals are disposed of in terms of this judgment. We also direct that in case any amount has been realized by the Financial Corporation in execution proceedings, it shall be adjusted in the account of the judgment debtors in accordance with law. There shall be no order as to costs. All interim orders are vacated. All miscellaneous applications are disposed of. (Dev Darshan Sud) Judge. March 12, 2010. (Kuldip Singh) (aks) Judge.