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2000 DIGILAW 47 (GAU)

Sodhanlal Agarwalla v. UCO Bank

2000-02-04

N.C.JAIN, P.C.PHUKAN

body2000
N.C. JAIN, J. — This appeal has been filed by defendant No. 1 the Principal-Debtor against the judgment and decree of the trial Court decreeing the suit of the plaintiff bank for a sum of Rs.31,609.74 paise with interest @ 11.85% per annum from 11.1.1982 uptill the date of filing of the suit and @ 6% per annum from the date of decree till realisation of the decreetal amount. It deserves to be noticed at this stage that the decree of the trial Court has not been challenged by the guarantor who was arrayed as defendant No. 2 in the main suit. 2. The plaintiff-bank who is respondent No. 1 in this appeal filed the suit for recovery of outstanding unpaid loan amount with the averments that defendant No. 1 being a Road Transport Operator applied for loan to the plaintiff-bank on 9.1.82 for purchase of a second hand Ford truck. Defendant No. 2 being a business man stood as guarantor for defendant No. 1. The loan amount of Rs.2,05,000/- was sanctioned on 11.1.1982 to enable the defendant No. 1 to purchase the second hand Ford truck. It was further averred that the defendant Nos. 1 and 2 executed a Memorandum of Agreement with the plaintiff-bank showing therein that the defendant No. 1 was borrower whereas defendant No. 2 was guarantor for defendant No. 1. It was agreed to hypothecate the vehicle with the plaintiff-bank by way of first charge in favour of the plaintiff bank. It was agreed to repay the amount with interest @11.85% per annum in 48 equated monthly instalments. 3. It is the further case of the plaintiff-bank that the defendant No. 1 did purchase the truck from one Tapas Kumar Ghosh of Dhubri town on 11.1.1982 and got this vehicle transferred in his name under hire purchase agreement with the plaintiff-bank. Since defendant No. 1 failed to repay the instalments in accordance with the terms of agreement, demand notices were issued. In view of failure of the defendant No. 1, loan was recalled and the suit was filed. Defendant No. 1 contested the suit on the broad pleas that he did not know English language and that all the documents were prepared by the Manager which were signed by him without being explained the contents thereof. In view of failure of the defendant No. 1, loan was recalled and the suit was filed. Defendant No. 1 contested the suit on the broad pleas that he did not know English language and that all the documents were prepared by the Manager which were signed by him without being explained the contents thereof. It was further averred by defendant No. 1 that the suit was not maintainable and the same was barred by time. It was also stated by defendant No. 1 that he did not apply for loan for a second hand ford Truck and that the loan was taken for purchase of a new vehicle and further that the price of the 2nd hand Ford Truck was not Rs.2,75,000/-. Tapash Ch. Ghosh was described by the defendant to a friend of the Branch Manager of the bank and it was with a view to save said Tapash Ghosh that second hand ford truck was thrust upon on the defendant No. 1. It was further averred that from the very beginning the truck started giving trouble. 4. On the basis of respective pleas of the parties the following issues were framed by the trial Court: 1) Whether the suit is maintainable in its present form? 2) Whether there is any cause of action forme suit? 3) Whether the plaintiff is entitled for a decree of Rs.3,16,909.74 paise including interest at the agreed rate calculated upto 25.6.86 and interest for subsequent period? 4) Whether the public carrier ASG-2734 is first charge for the dates and for sale of the said public carrier for realisation of the decretal amount? 5) Cost of the suit 6) Any other relieffreliefs which deem fit and proper. 5. All the issues were decided by the trial Court in favour of; the plaintiff and against the defendants and as has been noticed in the beginning of the judgment, the suit of the plaintiff has been decreed. The counsel for the appellant has vehemently argued that the plaintiff did not examine the Manager who sanctioned the loan. He has further argued that in the application for loan no mention was made about 2nd hand Ford truck. It has further argued that none of the exhibits were filled by the defendant who did not known English language and that every thing was done by the Manager. He has further argued that in the application for loan no mention was made about 2nd hand Ford truck. It has further argued that none of the exhibits were filled by the defendant who did not known English language and that every thing was done by the Manager. The trial Court, according to the counsel, did not take into consideration the reply which was filed by defendant No. 1 to the notice of the Bank wherein it was clearly stated that the truck was out of order. 6. We have given our thoughtful consideration of the arguments of the counsel for the appellant, but we are unable to find any force. The plaintiff was under no obligation to examine the then Branch Manager who sanctioned the loan. Whatsoever has been stated in the Court by the present Branch Manager PW-1 same is inconformity with the documentary evidence. In view thereof there was absolutely no need for the plaintiff bank to examine the previous Branch Manager. Once the truck number and the Model of the year 1981 and its make was mentioned in the application for loan, it would not make any difference to the case of the plaintiff that the application for loan for second hand ford truck was not given by defendant No. 1. The loan application was admittedly given in the year 1982 wherein the Model of the truck was mentioned 198L We are also disinclined to accept the arguments of the counsel for the appellant that the defendant No. 1 is not liable to repay the loan as all the documents were filled by the Branch Manager and not by defendant No. 1. Admittedly, the defendant No. 1 and the guarantor have signed the documents and therefore, they can be saddled with the knowledge of their contents. Moreover, the signature of the defendant No. 1 is in English. We have examined the signature and the hand writing appears to be beautiful. In absence of any cogent evidence that the defendant No. 1 did not know English language, it can be easily presumed that he understood the nature and contents of the documents before he put his signature. Moreover, the signature of the defendant No. 1 is in English. We have examined the signature and the hand writing appears to be beautiful. In absence of any cogent evidence that the defendant No. 1 did not know English language, it can be easily presumed that he understood the nature and contents of the documents before he put his signature. Moreover, defendant No. 2 the guarantor who has not filed any appeal before this Court against the judgment and order of the trial Court and it is not the case of the defendant No. 1 that his guarantor also did not know the English language. Whether the vehicle was in working condition or not at the time of giving notice by the bank authorities, the same would not absolve the appellant from his liability to repay the loan. 7. The appellant has concedly made repayment of some instalments of loan before he became defaulter and this factor goes against him. We have gone through each and every documents produced by the plaintiff-bank. The entire documentary evidence in our considered view proves the advancement of loan to the defendant No. 1. Exhibit-1 is a joint application by both the defendants for obtaining loan by defendant No. 1 and for standing guarantor by defendant No. 2. Both the defendants jointly executed exhibit-4, Memorandum of Agreement. It is clearly stated in the exhibit-4 that defendants were agreeable to be pay the loan with interest in 48 monthly instalments. Exhibit-5 is another document executed by defendant No. 1 agreeing to repay the principal and interest on certain terms and conditions. By virtue of Exhibit-11 the defendant No. 1 applied to the District Transport Officer stating therein he had purchased the vehicle in question from Tapash Ghosh under Higher Purchase Agreement with the plaintiff Bank and that the same be transferred in his name. It was further stated in the said application that the seller had already submitted a petition to the District Transport Officer in this aspect. Exhibit-8 evidences the sale from Tapash Kumar Ghosh and purchase by defendant No. 1 of the said vehicle for a sum of Rs.2,75,000/-. Before taking of the loan, a certificate Exhibit-3 was obtained from the Inspector of Motor Vehicles, Goalpara certifying the market value of the vehicle in question at Rs.2,75,000/-. Exhibit-8 evidences the sale from Tapash Kumar Ghosh and purchase by defendant No. 1 of the said vehicle for a sum of Rs.2,75,000/-. Before taking of the loan, a certificate Exhibit-3 was obtained from the Inspector of Motor Vehicles, Goalpara certifying the market value of the vehicle in question at Rs.2,75,000/-. In view thereof, it is too late for the appellant to contend that for a second hand truck Rs.2,75,000/- was not the proper price and that the same was the price for a new truck. No evidence has been brought on the record of the case from authorised dealers of Ford Truck Company that the price of a new truck in the year 1982 was Rs.2,75,000/-. In any case the bank authorities having been represented about the price of the 2nd hand vehicle, the appellant cannot successfully contend in appeal before us that he is not liable to make payment of the loan amount on account of wrong valuation. 8. For the reasons recorded above, the appeal is found to be devoid of any merit and the same is liable to be dismissed with no order as to costs.