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2003 DIGILAW 575 (MP)

Bank of India v. Gulab Singh

2003-04-22

A.K.AWASTHY

body2003
Judgment ( 1. ) APPELLANT/plaintiff has filed the appeal under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 5. 8. 1988 passed by IInd Additional Judge to the Court of District Judge, Sehore in Civil Suit No. 109-B/87 wherein the suit for recovery of Rs. 21,733 with interest was dismissed. ( 2. ) THE admitted facts of the case are that the respondent/defendant No. 1 applied for the loan for purchasing bullocks and buffaloes to run a dairy business and on 6. 6. 1978 the plaintiff Bank extended for the same two loans of Rs. 6,000/- and Rs. 2,000/- to the defendant No. 1. It is also not in dispute that the defendant Nos. 2 and 3 were the guarantors. That respondent defendants have agreed in writing to pay with interest at the rate of 13% per annum to the plaintiff Bank. ( 3. ) THE case of the plaintiff/bank is that the amount of loan was not repaid by the respondent even after several demands and service of legal notice dated 20. 11. 81. That decree for Rs. 21,733. 79 be passed in favour of the plaintiff/bank against the defendants, jointly and severally, along with the interest at the rate of 13% per annum. ( 4. ) DEFENDANT Nos. 1 and 2 have filed the written statement and defendant No. 3 proceeded exparte. Defendant Nos. 1 and 2 have slated that the bullocks and buffaloes purchased from the loan given by the plaintiff Bank were insured by the plaintiff Bank. That the defendant has paid the instalments of the insurance. That it was agreed with the Insurance Company will pay the loan to the Bank on behalf of defendant in the event of death of the buffaloes and bullocks. The defendant has pleaded that within two years of the purchase of the bullocks and buffalows, they had died and about the death the information was given to the plaintiff-Bank. That the assurance was given by the officials of the Bank that the outstanding loan of defendant will be realised from the Insurance Company and the defendants will not be required to pay the loan. ( 5. That the assurance was given by the officials of the Bank that the outstanding loan of defendant will be realised from the Insurance Company and the defendants will not be required to pay the loan. ( 5. ) LEARNED trial Court has dismissed the suit on the simple ground that the bullocks and buffaloes have died within two years of taking of the loan and as such according to the payment with plaintiff/bank, the liability to make good the loan was with the Insurance Company. The suit was dismissed on the ground that in view of insurance policy the defendants were not liable to re-pay the loan. ( 6. ) THE appellant has challenged the impugned judgment and decree on the ground that there is no documentary or oral evidence to show that the appellant had taken the responsibility of insuring the cattle purchased by the respondent/defendant. That defendant has not informed about the death of catties. That the learned Trial Court has not properly assessed the evidence and the impugned judgment and decree is liable to be set aside and the claim be decreed. ( 7. ) ADMITTEDLY there is no documentary evidence to show that the plaintiff Bank has agreed to get the bullocks and buffaloes insured and also agreed to realise the amount of loan from Insurance Company on behalf of the defendant/respondent. ( 8. ) DEFENDANT Gulab Singh (D. W. 1) has stated that the plaintiff-Bank had agreed to get the bullocks and buffaloes insured. That it was also agreed that the instalment will be paid by the plaintiff/bank to the Insurance Company. Hiralal (D. W. 2) has stated that about 10 years back defendant Gulab Singh took the loan from the plaintiff-Bank and the officials of the plaintiff-Bank agreed that in case of the death of bullocks and buffaloes the plaintiff-Bank will realise the amount from the Insurance Company. The plaintiff has examined Krishnakant (P. W. 1) who has extended the loan to defendant Nos. 1 and 2. Krishnakant (P. W. 1) has admitted in paragraph 14 of his cross-examination that the plaintiff/bank got insured the bullocks and buffaloes purchased by the defendant. Consequently, only question remains whether it was the responsibility of the Bank to recover the amount from the insurance company. 1 and 2. Krishnakant (P. W. 1) has admitted in paragraph 14 of his cross-examination that the plaintiff/bank got insured the bullocks and buffaloes purchased by the defendant. Consequently, only question remains whether it was the responsibility of the Bank to recover the amount from the insurance company. Krishnakant (P. W. 1) has stated that it was not the responsibility of the Bank to realise the amount from the Insurance Company and defendants did not inform the Bank about the death of the catties. ( 9. ) THE defendant-respondent has not proved the plaintiff/banks responsibility to realise the amount from the Insurance Company on behalf of the respondent/defendant. Normally it is the responsibility of the person in whose favour the insurance is done to realise the amount of the policy from the Insurance Company. ( 10. ) IN this regard it is noteworthy that the appellant Bank has sent the notice Ex. P/26 for the recovery of the loan to the defendant but no reply was given by the defendants to the plaintiff-Bank. It is not shown when catties died. The post mortem report of catties not filed. The defendants have not given any notice to the plaintiff/bank about the death of the buffaloes and bullocks nor notice was given by the defendants that on account of the fact that bullocks and buffaloes have died, the plaintiff-Bank should realise the amount from the Insurance Company. Consequently the finding of the learned Trial Court that it was the responsibility of plaintiff-Bank to realise the amount of insurance on behalf of the defendant is without any substance. The plaintiffs are entitled for the balance amount from the defendants. It is clear that the loan was not for commercial purpose but an agricultural loan. Consequently, I hold that the plaintiff/bank is entitled to realise the amount with interest at the rate of 6% per annum. ( 11. ) THE appeal is allowed. I hereby set aside the judgment and decree dated 5. 8. 1998. It is hereby decreed and ordered that the defendants to pay jointly and severally Rs. 21,733. 79 to the plaintiff/bank. Defendants/respondents will bear the costs of the appeal and that of Trial Court incurred by the plaintiff/appellant. Respondent/defendant will pay the interest at the rate of 6% per annum from the date of filing of the suit i. e. 3. 11. 1985 till the realisation of decretal amount. 21,733. 79 to the plaintiff/bank. Defendants/respondents will bear the costs of the appeal and that of Trial Court incurred by the plaintiff/appellant. Respondent/defendant will pay the interest at the rate of 6% per annum from the date of filing of the suit i. e. 3. 11. 1985 till the realisation of decretal amount. Defendant/respondent will pay Rs. 500/- as Counsel fee. Decree be drawn up accordingly.