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1996 DIGILAW 408 (DEL)

NEW BANK OF INDIA v. BHUPINDER SINGH BRAR

1996-05-01

LOKESHWAR PRASAD

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LOKESHWAR PRASAD ( 1 ) THE Plaintiff Bank has filed the suit for the recovery of Rs. 2,62,277. 00 with costs and interest against the defendants. The case of the Plaintiff Bank, in brief, is that the Plaintiff Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, Carrying of the business of banking, having its Head Office at 1, Tolstoy Marg, New Delhi and amongst others a Branch Office also at 1, Tolstoy Marg, New Delhi. Sh. A. K. Garyali, Manager of the Plaintiff Bank is duly authorised to sign and verify the plaint and to institute the suit on behalf of the plaintiff Bank. 1. 1 It is alleged that defendant No. 1 applied to the Plaintiff Bank for a term loan of Rs. 2,00,000. 00 (Rs. Two Lacs) for the purchase of a bus vide application dated 11th August, 1982. On the application of defendant No. 1, the plaintiff bank sanctioned a term loan of Rs. 1,70,000. 00in favour of defendant No. 1 and intimated the same to him vide letter dated 19. 10. 1982. Defendant No. 1 vide letter dated 15. 2. 1983 requested the plaintiff Bank to convert the purpose of loan from purchase of a bus, to purchase of a truck which was acceeded to by the plaintiff bank and a term loan of Rs. 1,48. 000. 00 instead of Rs. 1,70,000. 00 was sanctioned by the plaintiff bank in favour of the defendant No. 1 1. 2 Defendant No. 1, it is alleged, agreed to repay the loan amount in monthly instalment of Rs. 5,100. 00 such and also agreed to pay interest @ 2. 5% over and above the Reserve Bank of India rate with a minimum of 12. 5% per annum. Defendant No. 1 and also executed an undertaking, a deed of hypothecation,-a Promisory note and a letter of Waiver, all dated the 14th July, 1983. 1. 3 Defendant No. 2 and 3 offered themselves as guarantors of defendants No. 1 for the repayment of the loan amount be defendant No. 1 and also executed a Deed of Guarantee dated the 14th July, 1983 in favour of the Plaintiff Bank guaranting repaying of loan amount by them in case of any default by defendant No. 1. 1. 3 Defendant No. 2 and 3 offered themselves as guarantors of defendants No. 1 for the repayment of the loan amount be defendant No. 1 and also executed a Deed of Guarantee dated the 14th July, 1983 in favour of the Plaintiff Bank guaranting repaying of loan amount by them in case of any default by defendant No. 1. Thus, as per the case of the plaintiff bank, the liability of defendant No. 2 and 3 is co- extensive with the liability of defendant No. 1. 1. 4 It is alleged that in consideration of the defendants executing the above mentioned documents, the plaintiff bank advanced the loan amount of Rs. 1,48,000. 00 - to defendant No. 1 for the purchase of truck. A Truck, bearing Registration No. DEG 4297, was purchased and was hypothecated with the plaintiff bank which fact : was also noted in the records of the State Transport Authority, Delhi and in the Registration Certificate of the aforesaid vehicle. 1. 511 is averred that after availing of the above said loan, defendant No. 1 became irregular in the matter of payment of instalments and did not repay the whole loan amount and on the date of filing of the suit a sum of Rs. 2,62,277. 00 was due and payable from defendant No. 1 to the plaintiff bank on account of principal sum, interest and other charges. 1. 6 It is alleged that the plaintiff re-quested defendant No. 1 to pay the aforesaid amount but the defendant failed to do so and ultimately the plaintiff bank through its legal Advisor served upon all the defendants a legal notice dated the 21st August, 1987 calling upon them to pay the aforesaid amount to the plaintiff bank. The defendants did not pay the amount due and payable to the plaintiff bank and hence the suit. It has been prayed by the plaintiff bank that a decree for the recovery of Rs. 2,62,277. 00 alongwith pendent lite and future interest @ 15% per annum from the date of filing of the suit till realisation be passed in favour of the plaintiff bank and against the defendants making them jointly and severally liable to pay a decreetal amount with costs. It has also been prayed that the plaintiff bank be allowed to seii the hypothecated vehicle i. e. truck bearing Registration No. DEG-4297. It has also been prayed that the plaintiff bank be allowed to seii the hypothecated vehicle i. e. truck bearing Registration No. DEG-4297. ( 2 ) ON 8th March, 1994 an application (IA 2770/94) was, filed under Order 22 Rule 10 read with Section 151 Civil Procedure Code by the plaintiff bank seeking leave to continue the suit by the Punjab National Bank in place of the plaintiff bank. It has been stated in the above said application that during the pendency of the suit the plaintiff bank was transferred to and vested in Punjab National Bank Vide Notification No. 50662 (E) dated the 4th September, 1993, issued by the Government of India, Ministry of Finance (Department of Economic Affairs) (Banking Division ). It has been prayed in the above said application that Punjab National Bank, having its head office A-7, Bhikajikama Place, New Delhi and a Branch Office at 1, Tolstoy Marg, be permitted to continue the present suit in place of New Bank of India against the defendants. The above mentioned application was allowed by the learned predecessor of this Court vide order dated 13th February, 1995 as a result of which Punjab National Bank has been permitted to continue the present suit in place of New Bank of India against the defendants. ( 3 ) AS the defendants absented themselves despite service, they were proceeded ex parte in the present proceedings vide order dated 23rd July, 1992. ( 4 ) THE plaintiff bank in support of its case has adduced the evidence by means of affidavit. Sh. A. K. Gariyali, Sr. Manager of the plaintiff bank has filed his affidavit dated the 5th January, 1996 by way of evidence in support of the case of the plaintiff bank. Sh. S. K. Gariyali in his affidavit, filed by him by way of evidence, has supported the case of the plaintiff bank in toto. The evidence of Sh. A. K. Gariyali, Sr. Manager of the plaintiff bank has gone on record unrebutted and unchallenged. ( 5 ) I have heard the learned counsel for the plaintiff and have also carefully gone through the documents/material on record. On a consideration of the pleadings in the plaint, the facts disclosed in the affidavit dated the 5th January, 1996 of Sh. A. K. Gariyali, Sr. Manager of the plaintiff bank has gone on record unrebutted and unchallenged. ( 5 ) I have heard the learned counsel for the plaintiff and have also carefully gone through the documents/material on record. On a consideration of the pleadings in the plaint, the facts disclosed in the affidavit dated the 5th January, 1996 of Sh. A. K. Gariyali, Sr. Manager, of the plaintiff bank, tendered by way of evidence in support of the case of the plaintiff bank, it is established that the plaintiff bank on an application by defendant No. 1 advanced a loan of Rs. 1,48,000. 00 to defendant No. 1 for purchase of a truck vide letter dated 17th June, 1983 (Ex. Public Witness/6 ). The defendant No. 1 executed undertaking (Ex. Public Witness 1/7), deed of hypothecation (Ex. Public Witness 1/8), Promisory note dated the 14th July, 1983 (Ex. Public Witness 1/9) and letter of waiver (Ex. Public Witness 1 /10 ). It is further established that defendants Nos. 2 and 3 in their capacity as guarantors for defendants No. 1 executed a deed of gmrantee (Ex. Public Witness 1/11) in favour of the plaintiff bank. It is also established that defendant No. 1 purchased a truck bearing registration No. DEG 4297 which was hypothecated with the plaintiff bank. It is further established that after availing of the loan defendant No. 1 become irregular in the matter of repayment as per terms of agreement and did not care to pay the amount due and payable to the plaintiff bank despite repeated requests. The defendants despite service of legal notice (Ex. , Public Witness 1/14) did not care to liquidate their liability is also established that on the date of the filing of the suit a sum of Rs. 2,62,277. 00- with interest and costs is due and payable to the plaintiff bank by the defendants and the liability of the defendants is joint and several. ( 6 ) IT is further established that during the pendency of the suit the plaintiff bank (New Bank of India) was transferred-to and vested in Punjab National Bank vide notification No. SO 662 (E) dated the 14th September, 1993 issued by the Government of India, Ministry of Finance (Department of Economic Affairs) (Banking Division ). ( 6 ) IT is further established that during the pendency of the suit the plaintiff bank (New Bank of India) was transferred-to and vested in Punjab National Bank vide notification No. SO 662 (E) dated the 14th September, 1993 issued by the Government of India, Ministry of Finance (Department of Economic Affairs) (Banking Division ). On an application made by the Punjab National Bank Under Order 22 Rule 10 read with Section 151 Civil Procedure Code the Punjab National Bank, having its Head Office at 7, Bhikaji Kama Place and a branch at 1, Tolstoy Marg, New Delhi has been permitted to continue the present suit in place of New Bank of India against the defendants vide order dated 13th February, 1995. In view of the above discussion a decree for the recovery of Rs. 2,62,277. 00 (Rupees two lakhs sixty two thousand two hundred and seventy seven only) with costs and pendent-life and future interest @ 15% per annum from the date of the filing of the suit till realisation is passed in favour of the plaintiff bank (Punjab National Bank) against the defendants. The liability of the defendants will be joint and several As regards the prayer of the plaintiff bank to permit to sell the hypothecated vehicle, it is directed that the plaintiff bank may apply for the sale of the hypothecated truck on execution side. Decree sheet be drawn up accordingly. and thereafter the file be consigned to record room.