1. The plaintiff has filed this suit under Order XXXIV, C. P. C. For record--very of Rs. 1,71,315.
2. The defendant had an account with the plaintiff and was allowed loan! Cash credit over-draft facility to the extent of Rs. 2,50,000. The defendant utilised the facility and as a security for the loan executed o promissory note for Rs. 1.00,000 coupled with an agreement for cash credit on security of pledge of goods, produce and merchandise. As The defendant filed his written statement and pleaded that the plaintiff had entered into a contract for sale of the frustrated cargo where by the defendant had purchased 14 drums of cables which were lying art the custody of the customs Authorities. The defendant paid Rs. 70,000 to the plaintiff towards the price of the goods but later on demand being made by the Customs Authorities he had to pay a sum of Rs. 1,67,858 which included the sum of Rs. 70,000. The defendant, therefore, claimed that as Rs. 70,000 was paid for and on behalf of the plaintiff and again the same amount was included in the sale consideration the defen--dant is entitled to its refund for which he has fled a counter-claim. The defendant did not dispute the principal amount of loan but pleaded that the calculation of interest was not correct. In view of these pleadings the plaintiff agreed to give credit of Rs. 70,000 to the defendant provided the said amount is remitted to the plaintiff by the Customs Authorities. During the proceedings the plaintiff stated that the said amount has been traced and remitted pack to the plaintiff. In these circumstances the parties agreed that issue No. 1 is not pressed and only issue No. 2 viz. "to what interest is the plaintiff entitled" is to be decided. The learned counsel for the plaintiff stated that the plaintiff would check the calcula--tion of interest and file a statement. The statement was filed by the plaintiff where by after giving credit of Rs. 70,000 a sum of Rs. 1,64,160.93 is payable. The plaintiff has also claimed legal expenses of Rs. 9,843. The parties have agreed that the documents filed by them should be taken in evidence for purposes of deciding this issue.
3. Mr. Sher Afgan the learned counsel for the defendants has stated that as the defendant had paid Rs. 70,000 on behalf of the plaintiffs in the year 1975 the plaintiffs are not entitled to recover interest on that amount From the documents tiled by the parties it seems that the defendant had agreed to purchase 14 drums of cable which were lying with the Customs Authorities and the price as assessed by the Customs Authorities gas to be paid by the Plaintiff to them.
4. From the defendant's letter dated 28th October, 1976, it seems that according to it the C & F cost was first assessed at Rs. 70,000. The defendant conveyed this information to the plaintiff and at his request the, plaintiff issued a pay order for Rs. 70.000 which the defendant hastened' to deposit with the Customs Authorities. However, later it transpired that the C & F value of the goods was assessed by the Customs Authori--ties, at Rs. 1,67,858 and in order to avoid impending auction of the goods the defendant deposited the said amount with the Customs Authori--ties for which a pay order was issued by the plaintiff at the request of the. Defendant. According to the agreement the defendants were to pay the C & F value as assessed by the Customs and were to pay all other taxes, duties and charges to the Government and K. P. T. Direct. In the circumstances the question of plaintiff coming into the picture or instruc--ting the defendant to pay the price and does not arise. It seems that the defendant had first made enquiries according to which Rs. 70,000 was said to have been assessed by the Customs Authorities which the defendant paid to them However, later it transpired that the reserve price had been fixed at Rs. 1,67.858 and in order to save the goods from being auctioned the defendant had to pay the said amount. This clearly demonstrates that the defendant had been dealing with the matter and as he has admitted in this letter on 18th October, that Rs. 70,000 was paid inadvertently it does not lie in his mouth to say that it was paid on behalf of the plaintiff. In these circumstances the defendant cannot take benefit of the payment made by him to the Customs Authorities. It, therefore. Follows that the defendant's claim that the interest on Rs. 70,000 should not be charged cannot be accepted.
5. Except this there is no other objection to the calculation of interest made by the Plaintiffs.
6. According to the interest calculated by the Plaintiff the defendant is liable to pay interest on Rs.
7. 1,71,315@12% per annum from 16th August, 1978 to 5th May, 1981, when the sum of Rs. 70,000 was received by the plaintiff. The interest for this period comes to Rs. 56,317.40. After giving credit to the defendant for Rs. 70,000 the amount due was reduced to Rs. 1,57,632.40. The plaintiffs shall further be entitled to interest on Rs. 1,57, 632.40 @12% per annum from 6th May, 1981 till recovery. The counter-claim is also decreed to the extent of Rs. 70,000 only and as the plaintiff has given credit for the said amount the same stands satis--fied.
8. In the circumstances it is declared that upto 5th May, 1981 a sum of Rs. 1,57,632.40 is due and payable by the defendant with interest @ 12--Jo per annum from 6th May, 1981 till recovery with cost and 1 pass a preliminary decree in terms of Order XXXIV, rule 2, C. P. C. The defen--dant is allowed to pay the decretal amount in Court within 6 months.
9. The plaintiff will be entitled to proportionate cost on the amount of Rs. 1,01,315. The cost has been awarded on the original claim less Rs. 70,C00 because if the plaintiff would have acted diligently in recovering Rs. 70,000 from the Customs Authorities perhaps the defendant have settled the claim.