1 S.5868.98.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 5868 OF 1998 The Janata Sahakari Bank Ltd., Pune. ... Plaintiffs. V/s. M/s. Priya Investments. ... Defendant. Mr. Ramnath Ravi i/b. M/s. Ramanathsekhar & Co. for the Plaintiffs. None for the Defendant. CORAM : R.Y. GANOO, J. DATED : 24th FEBRUARY 2011. ORAL JUDGMENT :- The Plaintiffs have instituted this Suit against the Defendant to recover Rs.2,40,250.24 ps. and have also claimed interest at the rate of 22% per annum on Rs. 2,40,250.24 ps. from 12th November 1998 till payment and or realization. The Plaintiffs have prayed for the costs. 2. According to the Plaintiffs, Mr. R. Baskar happened to be the proprietor of M/s. Priya Investments, the Defendant. Said Mr. Baskar opened a current account with the Plaintiffs in the name of the firm M/s. Priya Investments on or about 13th December 1996. According to the Plaintiffs, the Defendant was granted overdraft facility and the Defendant enjoyed the 2 S.5868.98.sxw over draft facility and by about 13th August 1998, a sum of Rs. 1,68,894/- was found to be outstanding. The Plaintiffs had no doubt received a letter dated 3rd December 1998 at Exhibit P-4 from the Defendant. By the said letter, the Defendant had promised to pay the amount then outstanding. 3. The Plaintiffs had issued demand notice dated 12th September 1998 at Exhibit P-5 to recover their dues. The Plaintiffs state that the Defendant failed to comply with the demand notice. According to the Plaintiffs, the Defendant had paid to Plaintiffs Rs.3,50,000/- on 26th March 1993 to reduce the liability. The Plaintiffs had no alternative but to institute the Suit looking to the conduct of the Defendant. 4. The Suit was filed on 13th November 1998. The Writ of Summons was served upon the Defendant. The Defendant did not appear and did not file any written statement. Consequently, the Suit was treated as undefended Suit. 5. The Plaintiffs placed their case before the Court through the evidence of Mr. Sitakant Mendjogi, an Officer of the Plaintiffs. The Plaintiffs have produced before the Court the current account opening form of the Defendant at Exhibit P-2. The cheque honored by the Plaintiffs to the tune of Rs. 5,00,000/- at Exhibit P-3 which was honored towards the grant of overdraft facility. Exhibit P-4 is the letter acknowledging the liability by the Defendants. Exhibit P-5 is demand notice dated 12th September 1998 calling upon the Defendant to pay 3 S.5868.98.sxw the Bank dues. Exhibit P-6 is the particulars of claim. Exhibit P-7 is the statement of accounts. Exhibit P-9 is letter dated 3rd September 1999 sent by the Defendant to the Plaintiffs admitting their liability and promising to pay the installments from November 1999. 6. Learned Counsel Mr. Ramnath Ravi had taken me through the record including the evidence of PW-1 Sitakant Mendjogi and the various documents discussed above. A perusal of the statement of account would go to show that the over draft facility was enjoyed by the Defendant on 13th December 1996 and thereafter, regularly till 9th January 1997. To the good luck of the Plaintiffs, the Defendant paid a sum of Rs.3,50,000/- to bring down the liability. Since last payment was made on 26th May 1997 and as the Suit was instituted on 13th November 1998, the institution of Suit is within the period of limitation. 7. The letter dated 3rd December 1998 at Exhibit P-4 and letter dated 3rd September 1999 at Exhibit P-9 clearly indicate that the Defendant had temporary overdraft facility from the Plaintiffs and that the Defendant had agreed and admitted to pay off the said liabilities may be in installments. Hence, the Plaintiffs have been able to show on the basis of these letters as well as statement of accounts at Exhibit P-7 that the Defendant was liable to pay to the Plaintiffs Rs.1,68,894/- at the foot of the account. 4 S.5868.98.sxw 8. So far as the rate of interest is concerned, the Plaintiffs have demanded interest at the rate of 22% per annum vide demand notice at Exhibit P-5. Evidence of Mr. Mendjogi is also indicative of the fact that the Plaintiffs have demanded interest at the rate of 22% per annum. Looking to the un- controverted evidence of Mr. Mendjogi, PW-1, the Plaintiffs have been able to prove that the Defendant is liable to pay to the Plaintiffs Rs.1,68,894/- as the amount payable as of 30th September 1998. The Plaintiffs have also been able to prove that rate of interest have to be charged is 22% per annum. It is seen that the Plaintiffs had not applied interest from 1st April 1997 to 12th November 1998. The unapplied interest for the aforesaid period is Rs.71,356.24 ps. Taking into consideration the debt balance as on 30th September 1998 at Rs.1,69,894/- and the unapplied interest from 1st April 1997 up to 12th November 1998, the Plaintiffs are entitled to recover Rs. 2,40,250.24 ps. on the date of the filing of the Suit. As mentioned earlier, the Plaintiffs have also made out the case to charge interest at the rate of 22% per annum. Hence, the Plaintiffs would be able to recover interest at the rate of 22% per annum from 13th November 1998 till filing of the Suit on Rs.2,40,250.24 ps. Since the Defendant enjoyed the over draft facility and since the Defendant is a commercial establishment, the Defendant will have to pay interest at the rate of 22% per annum even after the passing of the decree till realization. Appropriate decree shall be passed in that behalf. The Plaintiffs of course would be entitled to recover the costs from the Defendant. 5 S.5868.98.sxw 9. For the reasons mentioned aforesaid, I pass the following decree :- (i) Defendant do pay to the Plaintiffs Rs.2,40,250.24 ps. (ii) Defendant do pay to the Plaintiffs interest at the rate of 22% per annum on Rs.1,68,894/-from the date of the filing of the Suit till realization. (iii) Defendant do pay to the Plaintiffs costs of the Suit. (R.Y. GANOO, J.)