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Madhya Pradesh High Court · body

2004 DIGILAW 599 (MP)

State Bank of Indore v. Firm Moolchand Madanlal

2004-07-30

A.K.AWASTHY

body2004
Judgment ( 1. ) APPELLANT/plaintiff has filed the appeal under Section 96 of the CPC against the judgment and decree dated 9. 12. 96 passed by learned Additional District Judge, Rajgarh Camp, Biaora in Civil Suit No. 9-B/88 wherein the claim of the appellant for Rs. 28,503. 90 ps. was dismissed. ( 2. ) THE case of the plaintiff is that the plaintiff is a Nationalised Bank having its branch at Rajgarh and the Branch Manager of the Bank is duly authorised to sign and verify the plaint on behalf of the plaintiff Bank. That the defendant No. 2 is the Proprietor of defendant No. 1 firm Moolchand Madanlal Rathore which is doing the business of Stationery and Cutlery. That on 26. 12. 69 the defendants had taken the loan of Rs. 10,000/- on the interest @ more than 5% of the rate of interest of the R. B. I. on monthly rest. That the defendant No. 2 has signed the Promissory Note on 26. 12. 69 on the same date he has also pledged his goods of his shop for the payment of the loan. That the defendant No. 1 has applied for the enhancement of the limit of the loan on 21. 3. 71. That on 19. 9. 75 the defendants have again executed the agreement for cash credit and executed the promissory note of the amount. That the defendants have acknowledged the payment of the arrears on various dates and lastly the acknowledgement to pay the loan was executed on 20. 11. 85. That the defendants have not paid the amount of Rs. 28503. 60 ps. in respect of the service of the registered notice dated 9. 12. 87. Plaintiff has prayed for the amount of Rs. 28503. 60 ps. along with the interest @ 16. 50% per annum and the cost of the suit. ( 3. ) THE defendants have denied that the plaintiff is a Nationalised Bank. It is further denied that the Branch Manager of Rajgarh Bank has right to file the suit or sign the plaint on behalf of the plaintiffs Bank. It is further denied by the defendant that he has taken the loan of Rs. 10,000/and agreed to pay the interest to the plaintiff. Defendant has denied the execution of the acknowledgement on 20. 11. 85. It is further denied by the defendant that he has taken the loan of Rs. 10,000/and agreed to pay the interest to the plaintiff. Defendant has denied the execution of the acknowledgement on 20. 11. 85. The defendants have further denied that the arrears of the loan on him are of Rs. 28503. 60/- ps. and it is pleaded that plaintiff is not interested in the cost of the suit. ( 4. ) THE learned Trial Court after framing the issues examined Rameshchandra Sharma (PW1), Mohandas (PW2) and defendant Madanlal (DW1 ). The learned Trial Court has held that the plaintiff has failed to prove that the Rajgarh Bank has right to file the suit. The learned Trial Court has further held that the plaintiff has also failed to prove the execution of the Promissory Note and the advancement of the loan. The learned Trial Court has, therefore, dismissed the suit. ( 5. ) THE appellant has assailed the impugned judgment and decree on the ground that the learned Trial Court has not properly appreciated the evidence and erred in rejecting the evidence of the plaintiff and as such, the appeal should be allowed and the suit of the plaintiff be decreed. ( 6. ) RAMESHCHANDRA Sharma (PW1) has stated that he was the Branch Manager in State Bank of Indore and Ex. P/1 is the Gazette Notification by which the Branch Manager was authorised to file the suit and verify the plaint. From Ex. P/1 it is clear, that the Government of India in the Gazette Notification dated 23. 12. 1989 has published the Notification by which the Branch Manager of the State Bank of Indore were authorised to sign and verify the plaint. It is held in case of United Bank of India v. Naresh Kumar and Ors. , AIR 1997 SC 3 in that the suit instituted by Public Corporation like Bank the Branch Manager is authorised to sign and verify the plaint. Consequently, learned Trial Court has erred in holding that the plaintiff has failed to prove that the plaint is verified and presented by the authorised person. The Branch Manager is the Principal Officer of the Branch of the Bank and under Order 29 Rule 1, CPC he has the authority to institute the suit on behalf of the Corporate Body. Consequently, learned Trial Court has erred in holding that the plaintiff has failed to prove that the plaint is verified and presented by the authorised person. The Branch Manager is the Principal Officer of the Branch of the Bank and under Order 29 Rule 1, CPC he has the authority to institute the suit on behalf of the Corporate Body. Consequently, it is held that the suit is properly verified, signed and presented by the Competent Authority. ( 7. ) MOHANDAS (PW2) has stated that he was posted as a Clerk in the Branch of State Bank of Indore at Rajgarh and defendant No. 2 Madanlal was provided with the loan and he has signed the loan papers Ex. P/14 before him. That the defendant has signed the acknowledgement Exs. P/18 to P/24 before him. From the perusal of Ex. P/4 it is clear, that the acknowledgement Ex. P/4 bears the seal and signature of defendant No. 2 Madanlal and it is on the letter pad of the firm of defendant No. 2. In the same way acknowledgement Ex. P/5 is in the hand writing of defendant No. 2 Madanlal and it bears the seal and signature of defendant No. 2 Madanlal. ( 8. ) ON comparison of the signature of the defendant with written statement and Vakalatnama it is evident, that the signature of the defendant on the Promissory Note is the same. It is held in case of Murarilal v. State of M. P. , AIR 1980 SC 531 that the Court has a right to compare the disputed writing to the admitted writing, under Section 73 of the Evidence Act. The defendant has not given the reply of the notice of the plaintiff sent for the realisation of the loan. The defendant has not specifically denied the signature on Exs, P/2 to P/22. The denial of the signature by the defendant is not specific. In these circumstances, it is proved that the defendants have executed the Promissory Note and the acknowledgement marked Exs. P/2 to P/22. In this regard it is worth mentioning the under Section 4 of the Bankers Book Evidence Act, the account of the defendant in the Bank which is marked Ex. P/26 is admissible in evidence. From the statement of account of the defendant it is clear, that the arrears on the defendants were 28503. 60 ps. P/2 to P/22. In this regard it is worth mentioning the under Section 4 of the Bankers Book Evidence Act, the account of the defendant in the Bank which is marked Ex. P/26 is admissible in evidence. From the statement of account of the defendant it is clear, that the arrears on the defendants were 28503. 60 ps. Consequently, the plaintiff is entitled for the amount of Rs. 28503. 60 ps. from the defendant. ( 9. ) THE appeal is, therefore, allowed. The impugned judgment and decree is set-aside. Respondent defendants to pay the amount of Rs. 28503. 60 ps. (Rupees twenty-eight thousand five hundered three and sixty paise) to the appellant/plaintiff. Respondent defendants will pay the interest @ 10% per annum for 15. 10. 1988 till the realisation of decretal amount. The respondent/defendant will bear his own cost of the appeal and suit and the cost of the suit incurred by the appellant/plaintiff in appeal and Trial Court. Counsels fee as per scale certified. A decree be drawn up accordingly.