SYNDICATE BANK v. DOABA PAINT HOUSE — 1993 DIGILAW 36 (DEL)

C. M. Nayar, J. ( 1 ) THE present suit is filed by the plaintiff for recovery of Rs. 1,24,441. 18 against the defendants. ( 2 ) THE plaintiff is a Bank, constituted and functioning under the Banking Companies (Acquisition and Transfer of Undertekings) Act, 1970, with the Head office at Manipal, South Kanara District of Karnataka State and a branch, amongst others at Punjabi Bagh, Delhi It is alleged in the plaint that the plaint is signed, verified and the suit instituted by Smt. Vathsala Pant, who was the Manager and Principal Officer of the plaintiff Bank at Punjabi Bagh, New Delhi. She was duly authorised to file the suit, sign and verify the plaint and-was also conversant with the facts of the case. ( 3 ) DEFENDANTS 2 and 3, who are father and son respectively have been carrying on business in the partnership under the name and style of defendant no. 1. It is alleged that at the request of the defendants, the plaintiff bank granted overdraft limit of Rs. 25,000. 00 against hypothecation of stocks, consisting of paints and varnish etc. and an overdraft limit of Rs. 25,000. 00 against pledge of goods and another limit of Rs. 5,000. 00 against discounting of cheque and drafts. The said facilities were required to be secured by way of equitable mortgage of property owned by defendant no. 2 and in this context, the said defendant deposited the original Title Deed of property No. 17a/29q, Anand Parbat Industrial Arca,new Delhi as collateral security. The defendants further requested on November 25,. 1972 that they were facing certain practical difficulties regarding the pledge; account and that the overdraft against hypothecation of stocks be enhanced to Rs. 50,000. 00 in cancellation of the pledge account. The plaintiff Bank agreed to the said request and accordingly enhanced the over-draft limit against pledge of goods. The defendants executed various documents, including the Demand Promissory Note dated April 4, 1973 for Rs. 50,000/ - carrying interest at the rate of 4 % per annum above the bank rate with a minimum of 10% per annum compounded quarterly. ( 4 ) PLAINTIFF Bank has given the particulars of the equitable mortgage created by defendant no. The defendants executed various documents, including the Demand Promissory Note dated April 4, 1973 for Rs. 50,000/ - carrying interest at the rate of 4 % per annum above the bank rate with a minimum of 10% per annum compounded quarterly. ( 4 ) PLAINTIFF Bank has given the particulars of the equitable mortgage created by defendant no. 2 in favour of the Bank and the amount due it the time of filing of the suit is referred to in paragraph 11 of the plaint, which reads as follows: A) Date 4. 4. 1973 b) Name of the mortgagor Shri Nand Raj Bhardwaj c) Name of the Mortgagee Syndicate Bank d) Amount secured Rs-55,000 (Rupees Fifty five thousand e) Property subject to Property No. 17a/29a, mortgage/particulars Anand Parbat Industri of title deeds at Area, New Delhi. Original Sale Deed dated 24. 2. 1959 executed by Shri K. L. Kapoor as General Attorney of Shri Jagmohan Kapoor in favour of Pt. Nand Raj Bhardwaj and registered as no. ll75 in Addl. Book No. I, Vol. No. 3138 on pages 327 to 329 on 18. 11. 1959 with S. R. Delhi. f)Amount now due Rs. l,24,441. 18 (Rupees One Lakh twenty four thousand four hundred forty one and paise eighteen only. ( 5 ) DEFENDANTS failed to pay the amount and, as a consequence, a registered legal notice dated July 24,1978 was issued by counsel for the plaintiff bank to the defendants, calling upon them to pay the amount then due within the time stipulated therein,but inspite of the same the defendants failed to pay the amounts and regularise the account. The plaintiff Bank accordingly had no option but to file the present suit for the recovery of the amount, as stated above. ( 6 ) DEFENDANT no. 2 has filed the written statement, in which he accepted the liability of the plaintiff Bank to pay the amount. Reference may be made to paragraph 24 of the written statement, which reads as follows: "24) Para 24 of the plaint is prayer of the plaintiff. The suit is liable to be dismissed on account of preliminary objections raised above and also on merits. The defendant no. 2 is, however, admitting the execution of various documents and after reasonable amount interest is allowed to the plaintiff the defendant no. The suit is liable to be dismissed on account of preliminary objections raised above and also on merits. The defendant no. 2 is, however, admitting the execution of various documents and after reasonable amount interest is allowed to the plaintiff the defendant no. 2 is voluntarily ready to pay back the principal amount and interest to the plaintiff out of the income of rent of the mortgaged immovable property in instalments fixed by the Court. " ( 7 ) THE following issues were framed on October 3, 1980: 1. IS the suit barred by limitation? OPD 2. Was Smt. Vatsala Pant authorised to sign and verify the plaint? OPP 3. To how much interest and at what rate the plaintiff is entitled? OPP 4. Relief. ( 8 ) IN support of their case, the plaintiff as well as defendants have led their respective evidence. Reliance has also been placed on the documents on record. I have heard learned counsel for the parties and have also gone through the record. ISSUE NO. 1 ( 9 ) AN objection has been raised by the defendant no. 2 that the suit is barred by time. I have perused the plaint and the evidence on record. The suit, filed by the plaintiff, is within time as is proved from the averments made in the plaint and the evidence on record and there is no evidence contrary to the same. The issue is decided, in favour of the plaintiff. ISSUE NO. 2 ( 10 ) PLAINTIFF bank examined Shri V. K. Bhardwaj Public Witness 1, who reiterated the averments made in the plaint. He has stated that he knew Mrs. Vathsala Pant who was the manager in Syndicate Bank, Punjabi Bagh, Delhi and he had seen her writing and signing. This witness identified her signatures on the plaint. Public Witness 2 Mr. Fredrick, the Assistant Manager of the plaintiff Bank also identified the signatures of Mrs. Vathsala (Vatsala) Pant at the end of the plaint as well as on the verification. He identified her signatures and brought the power of attorney, which is Exhibit P. 21. This document shows that Mrs. Vathsala Pant was authorised to sign, verify and institute the suit. A perusal of the plaint further shows that it has been signed and verified by Mrs. Vatsala Pant, Manager of the plaintiff Bank. He identified her signatures and brought the power of attorney, which is Exhibit P. 21. This document shows that Mrs. Vathsala Pant was authorised to sign, verify and institute the suit. A perusal of the plaint further shows that it has been signed and verified by Mrs. Vatsala Pant, Manager of the plaintiff Bank. In these circumstances, it is clear that the plaintiff has proved that the plaint has been signed and verified by a duly authorised person and, this issue is decided in favour of the plaintiff. Issues No. 3 and 4 ( 11 ) PUBLIC Witness 1 Mr. V. K. Bhardwaj has stated on oath that the rate of interest, which was payable by the defendants,at the time of granting of the loan, was 4 per cent above. the Reserve Bank rate with a minimum of 10%. Defendants have examined Shri N. R. Bhardwaj, defendant no. 2, who did not deny the dealings with regard to the loan facilities from the plaintiff bank. He, however, submitted that he had approached the Bank for the purpose of settlement of the matter and had proposed that he will give Rs. 50,000. 00 towards repayment of the amount, advanced and also pay an additional amount of Rs. 30,000. 00 , being the maturity value of his Life Insurance policy. He deposed that he is a heart patient and has got pacemaker fitted on his person. He also gets convulsion and bad not been able to do the work since 1982-83. ( 12 ) THE plaintiff Bank has also filed documents Exhibits P. I to P. 21 to support its claim. Exhibit P. 4 is the Statement-of Account, which is duly certified as a true and correct copy, maintained by the bank in its ordinary course of business and the amount due from the defendants is indicated therein as Rs. 1,24,441/18. ( 13 ) THE Counsel for the defendants has fairly conceded that the defendants are liable to pay the amount, as claimed in the suit and in this context be has brought to my notice that the sum of Rs. 50,000. 00 was paid to the plaintiff bank by four different pay orders in the year 1984 itself. The said payment has been admitted by learned counsel for the plaintiff. It is farther not in dispute that the insurance policy of the value of Rs. 30,000. 50,000. 00 was paid to the plaintiff bank by four different pay orders in the year 1984 itself. The said payment has been admitted by learned counsel for the plaintiff. It is farther not in dispute that the insurance policy of the value of Rs. 30,000. 00 is lying with the plaintiff bank and they will be at liberty to adjust the amount received in lieu thereof for the part payment of the amount, which may be held due from the defendants, as a result of the decree being passed in the suit. ( 14 ) COUNSEL for the defendants has submitted that the-plaintiff maybe directed to hand over the Life Insurance Policy to defendant no. 2, who will present the same for payment to the LIC so that the liability may be reduced by paying the amount to the plaintiff bank, so recceived from the Life Insurance Corporation. Learned counsel for the plaintiff has no objection to this arrangement. He states that the policy will be given to defendant no. 2 within one week from today and learned counsel for the defendants states that the amount so paid in respect of this policy by the LIC shall be deposited with the plaintiff Bank in part satisfaction of the decree in the present suit within one week of receipt. It is further submitted that the defendant has been ready and willing to discharge his debts to the plaintiff bank and he has made every attempt to do the same and that the defendant no. 2 may be directed to pay the future interest at the rate of 10 per cent per annum and the balance decretal amount, which may accrue to the plaintiff bank, be directed to be paid in monthly instalments. ( 15 ) I have carefully considered the matter and there is no doubt that defendant no. 2 has been bonafide in his approach and he has made efforts to minimise the liability towards the plaintiff bank. The daughter of defendant no. 2. Dr. Shashi Bhardwaj, who is present in Court, has farther undertaken that she will deposit National Saving Certificates of the value of Rs. 20,000. 00 with the plaintiff to discharge the debts. ( 16 ) IN view of the facts and circumstances mentioned above, I pass a decree for Rs. 1,24,441. 18 in favour of the plaintiff and against the defendants. Shashi Bhardwaj, who is present in Court, has farther undertaken that she will deposit National Saving Certificates of the value of Rs. 20,000. 00 with the plaintiff to discharge the debts. ( 16 ) IN view of the facts and circumstances mentioned above, I pass a decree for Rs. 1,24,441. 18 in favour of the plaintiff and against the defendants. The plaintiff shall be entitled to recover future interest at the rate of 10 per cent per annum from the date of institution of the suit till realisation. No order as to costs. ( 17 ) DEFENDANT no. 2 is permitted to pay the balance decretal amount by means of instalments at the rate of Rs. l,500. 00 per month till fall satisfaction of the decree, which shall commence from March, 1993. The amount of monthly instalment shall be deposited with the plaintiff by 7th of each succeeding month. In case of default of more than two instalments, the decree shall be executable forthwith.