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2001 DIGILAW 71 (DEL)

ORIENTAL BANK OF COMMERCE v. C. K. ASHA SINHA

2001-01-22

J.D.KAPOOR

body2001
J. D. KAPOOR ( 1 ) THROUGH this suit the plaintiff Bank, a body corporate constituted under the banking Companies Act 1980 has sought a joint and several decree in its favour and against the defendant for a sum of Rs. 7,73,389 alongwith pendente lite and future interest from the date of filing of the suit till the realisation of the decretal amount at the rate of 19. 5 per cent per annum with quarterly rest. The facts giving rise to the suit are as under: ( 2 ) DEFENDANT No. 1 is a qualified doctor, and has been running a clinic at A/b-7, shalimar Bagh, Delhi. He approached the plaintiff Bank for sanction of Term Loan of Rs. 3,00,000. 00 for the purpose of Blood Detector Fluriscent Microscope and accessories and submitted a Standard Loan Application dated 26. 5. 1990. Defendant No. 2 is also a practising doctor and is the husband of the defendant no. 1. He stood as guarantor for the defendant No. 1. Defendant No. 1 declared that she was the owner of the house No. A-B/7, Shalimar Bagh, Delhi and house no. 198, Nathu Pura, Delhi measuring 150 Sq. Yds. Plaintiff Bank considered the request of the defendant No. 1 and sanctioned Term Loan of Rs. 3,00,000. 00. Pursuant thereto the defendant executed the following documents. a) Agreement of loan and hypothecation dated 31. 5. 90 executed by defendant No. 1. b ). Guarantee Agreement dated 31. 5. 90 executed by defendant No. 2, in favour of the Bank. ( 3 ) DEFENDANT No. 2 also executed a letter of continuing guarantee. Pay Order in a sum of Rs. 3,00,000. 00 was handed over to defendant No. 1 in the name ofsamrat gupta from whom the said machine was to be purchased. The last payment made by the defendant towards repayment of the loan was on 15. 2. 92 for the amount of Rs. 6000. 00. Thereafter he neglected and failed to pay the balance amount as well as interest. The balance confirmation letters executed by defendant No. 1 are as under:as on 1/04/1992 an amount of Rs. 4,02,633. 00 was due and at the time of filing of the suit it rose to Rs. 7,73,389. 00. ( 4 ) THE summons of the suit were issued both by ordinary as well as registered a. D. post. The balance confirmation letters executed by defendant No. 1 are as under:as on 1/04/1992 an amount of Rs. 4,02,633. 00 was due and at the time of filing of the suit it rose to Rs. 7,73,389. 00. ( 4 ) THE summons of the suit were issued both by ordinary as well as registered a. D. post. Despite service by way of publication in the statesman none of the defendants put in appearance. Consequently, they were proceeded ex-parte. The plaintiff has filed the affidavit by way of ex-parte evidence in support of the aforesaid averments. ( 5 ) THE affidavit has been filed by Sh. Krishan Bhatia, Sr. Manager and the principal Officer and attorney of the plaintiff bank. General power of attorney executed by the bank in his favour is exhibit Public Witness1/8. Through power of attorney he has been authorised to sign and verify the present suit in terms of the authorisation letter Ex. Public Witness-1/b. ( 6 ) STATEMENT of account certified under the Banking Book of Evidence Act is ex. Public Witness 1/c. In view of the statement of account and the affidavit the factum of sanction of term loan stand established. The request by the defendant in writing is exhibit Public Witness 2/1. The invoice for purchasing Blood Detector Fluriscent Microscope duly signed by Mr. Samrat Gupta is Ex. Public Witness2/9. Loan Application Form bearing the signature of defendant No. 1 isex. Public Witness 1/2. Agreement of Loan and Hypothecation is Ex. Public Witness 2/10. The Guarantor form is Ex. Public Witness 2/11. Vide Exhibit Public Witness2/5 the advance was debited in the account of the defendant. Public Witness2/4 is the sanction letter. Exhibits Public Witness2/12, Public Witness2/13 and Public Witness1/14 are the balance confirmation letters. Public Witness 2/ 9 is the letter from the plaintiff to Mr. Samrat Gupta regarding the remittance of Rs. 3,00,000 towards value of the new Blood Detector Fluriscent Microscope and accessories Machine. ( 7 ) IN view of the aforesaid documents the claim of the plaintiff has been well established entitling the plaintiff to decree. Suit is decreed with cost in favour of the plaintiff and against the defendant for a sum of Rs. 7,73,389. 00 alongwith pendente lite and future interest from the date of filing of the suit till realisation of the decretal amount @ 19. 5% per annum. Suit is decreed with cost in favour of the plaintiff and against the defendant for a sum of Rs. 7,73,389. 00 alongwith pendente lite and future interest from the date of filing of the suit till realisation of the decretal amount @ 19. 5% per annum. In case the amount is not recovered the hypothecated blood Detector fluriscent miscroscope and accessories shall be put on sale through Court and the sale proceeds thereof after deducting the expenses of sale shall be paid to the plaintiff Bank towards satisfaction of the decretal amount. A decree sheet be prepared accordingly.