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2000 DIGILAW 646 (PNJ)

Ajaib Singh v. Oriental Bank Of Commerce

2000-07-03

SWATANTER KUMAR

body2000
Judgment 1. Learned Additional Civil Judge (Senior Division), Hoshiarpur, vide his judgment and decree dated 22-9-1997, decreed the suit in favour of the Oriental Bank of Commerce and against the defendants including the present appellant for recovery of Rs. 2,29,623/- with pendente lite and further interest at the rate of 16% per annum from the date of filing of the suit till realisation. It was stated that decretal amount would be paid by the defendants within a period of six months, failing which the hypothecated houses and mortgaged property will be liable to be sold in accordance with law for satisfaction of the decree. This decree was challenged by the defendants before the learned first appellate Court, which was also dismissed vide judgment and decree dated 4-8-1999 passed by the learned District Judge, Hoshiarpur, giving rise to the present appeal. 2. M/s. Hoshiarpur Brick Kiln Gram Udyog Samity had applied for loan and defendants Nos. 2 to 9 were its office bearers and defendant No. 10 was also carrying on the business of brick kiln. The defendants No. 2 to 9 had passed a resolution authorising defendants No. 2 to 4 for applying and taking loan from the plaintiff-Bank. Defendants No. 2 to 4 also stood as personal guarantee for repayment of the loan. A loan of Rs. 2,00,000/- was sanctioned to the defendants against hypothecation of goods and personal guarantee of defendants No. 2 to 11 and registered mortgage of house of defendant No. 2. The defendants failed to repay the loan. Resultantly, after serving a notice, the plaintiff-bank filed the above suit. The suit was contested by the defendants taking the objection in regard to maintainability of the suit and they denied receipt of the notice. However, receipt of loan was admitted. Learned trial Court framed the following issues:- "1. Whether the Bank is a body corporate and Shri R.C.Mehta, was authorised to file the present suit? OPP2.Whether the plaintiff-Bank is entitled to the decree for the recovery of Rupees 229623/-? OPP3.Whether the suit is not maintainable in the present form? OPD4.Whether the plaintiff-bank has not served notice, if so, its effect? OPD5.Whether the suit is premature? OPD6.Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD7.Whether the Bank is not claiming interest as per law? OPD8.Relief." 3. OPP3.Whether the suit is not maintainable in the present form? OPD4.Whether the plaintiff-bank has not served notice, if so, its effect? OPD5.Whether the suit is premature? OPD6.Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD7.Whether the Bank is not claiming interest as per law? OPD8.Relief." 3. After providing opportunities to the parties to lead evidence, the learned trial Court answered the issues in favour of the plaintiff-Bank and against the defendants and passed the decree, as aforesaid. The learned trial Court recorded its finding as under :- "The application moved on behalf of authorised member of defendant No. 1 is Ex. P5. The Demand Promissory Note Ex. P6, cash credit agreement Ex. P7, undertaking Ex. P8, hypothecation agreement Ex. P9 was executed by the defendants. Defendant No. 2 executed the mortgage deed. The guarantee deed executed by the defendants are Exs. P11 to P20. The copy of the statement of account is Ex. P23. The copy of the statement of account show the suit amount as outstanding at the time of filing of the present suit. The entries in the statement of account is per se admissible and there is no evidence whatsoever to rebut the entries in the copy of the statement of account. Accordingly, the plaintiff is entitled to recover the suit amount, particularly when the evidence produced by the plaintiff is unrebutted and none of the defendants has dared to step into the witness-box to deny the claim of the plaintiff. The interest was agreed 5% per annum over the Reserve Bank of India rate with a minimum of 20% per annum with the quarterly rests in the Demand Promissory Note, agreement for cash credit and other security documents. The plaintiff is entitled to recover the interest at this rate. However, the further interest has been sought only at the rate of 16% per annum which the plaintiff is entitled to recover. There is nothing illegal about the rate of interest being claimed. Both these issues are decided in favour of the plaintiff and against the defendants. 4. It may also be noticed that onus to prove issues No. 3 to 6 was on the defendants and learned counsel appearing for the defendants, at the time of arguments, did not press these issues and in fact no evidence was led by them to prove these issues. 5. 4. It may also be noticed that onus to prove issues No. 3 to 6 was on the defendants and learned counsel appearing for the defendants, at the time of arguments, did not press these issues and in fact no evidence was led by them to prove these issues. 5. As already noticed, there was hardly any controversy in the present case which called for determination by the learned first appellate Court and resultantly the appeal was dismissed. 6. Learned counsel for the appellant has mainly contended that co-defendants of the appellant have been able to frustrate the due process of law and it is the property of the present appellant which is being put to auction despite the fact that decree was passed against all the defendants. In this regard, he referred to the order dated 14-3-1995 passed by the High Court. 7. This contention of the learned counsel for the appellant has hardly any merit. The order of the High Court dated 14-8-1995 was in proceedings inter se between the defendants and the plaintiff bank was not a party to the said proceedings. The dispute primarily related between the parties in relation to the sale of the brick kiln or the mortgaged propriety which were security to the bank for repayment of its loan. That dispute related to the partnership dispute between defendant No. 2 on one hand and some of other defendants on the other, who were partners of the partnership concern. As such, this order is not binding upon the bank. The order of the High Court dated 14-3-1995 passed in a revision inter se parties, reads as under :- "Mr. G.S.Jaiswal, learned counsel for the petitioner, has urged that he is confining his prayer at the present stage to three matters, firstly, that the house belonging to the petitioner, which is being kept as security with the Oriental Bank of Commerce, be got released from the Bank by the respondents; secondly, the accounts of the partnership be rendered in the trial Court; and thirdly, the brick kilns of the respondents be attached2.After hearing the learned counsel for the parties. I find that the first two prayers of Mr. Jaiswal have merit, Mr. K.S.Dadwal, learned counsel for the respondents, has stated on receiving instructions form Mr. I find that the first two prayers of Mr. Jaiswal have merit, Mr. K.S.Dadwal, learned counsel for the respondents, has stated on receiving instructions form Mr. Juginder Lal, President of the Society, who is present in Court, that the respondents would take over the liability with regard to the house and discharge the petitioner from that liability by 31st March, 1995. It is accordingly directed as such. It is also ordered that the accounts of the partnership be rendered in the trial Court within 2 weeks from now and also to furnish the later accounts every four months thereafter. As far as third prayer of Mr. Jaiswal that the brick kilns of the respondents be attached is concerned, the petitioner may make an application to the trial Court who will decide the matter according to law. In case the undertakings given by Mr. Dadwal are not honoured or complied with by 31st March, 1995, the petitioner would be at liberty to move an application in the Court for further action against the respondents. The parties, through their counsel, are directed to appear in the trial Court on 7th April, 1995. The petitioner is disposed of as above.14th March, 1995Sd/- H.S.Bedi, Judge" 8. A dispute inter se defendants cannot in law, cause any impediment legal or otherwise, in determination of the dispute between the bank on one hand and all other defendants on the other. What the Court has to see is whether the judgment and decree under appeal suffers from any error which would justify interference by this Court in concurrent finding of facts arrived at by the learned Courts below. It must be noticed that there could hardly be any challenge to the judgment and decrees of the Courts below, as all documents in relation to the loan have been admitted by the defendants at the initial stages or in evidence. Once the loan documents and consideration thereto is proved, the defendants cannot have any advantage out of the aforesaid order. 9. The order of the High Court dated 14-3-1995, in any case, is a self contained order and the petitioner therein (appellant herein) is at liberty to take action for violation of the said order by the other defendants. Once the loan documents and consideration thereto is proved, the defendants cannot have any advantage out of the aforesaid order. 9. The order of the High Court dated 14-3-1995, in any case, is a self contained order and the petitioner therein (appellant herein) is at liberty to take action for violation of the said order by the other defendants. A decree for recovery of money has been passed and the loan of the bank is fully secured by the immovable property, which was mortgaged to the bank and the bank has every right to proceed against the said property in terms of the judgment and decree of the learned Court below. 10. I find no merit in this appeal. Resultantly, interim order dated 28-3-2000 shall stand vacated. The appeal is dismissed without any order as to costs.Appeal dismissed.