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2005 DIGILAW 1116 (MP)

Sitaram v. Union of Bank of India

2005-10-29

A.K.SAXENA

body2005
JUDGMENT The appellant/defendant No. 2 preferred this appeal against the judgment and decree passed on 22.8.1989 by Third Additional District Judge, Sagar, in Civil Suit No. 7-B/87 by which the suit of respondent No.1 /plaintiff for recovery of Rs. 55,600.95 along with interest was decreed against the defendants. As per plaintiffs case, the defendant No. l/respondent No.2 took a loan of Rs. 20,000/- from the plaintiff-Bank at the rate of 12.5% interest per annum and he executed the D.P. Note. The appellant and Channulal Namdeo stood guarantor for this loan. On 1.12.1984, the stock of wood was burnt and that Is why on the request of borrower, a new limit of Rs. 20,000/- was sanctioned by the Bank on 3.12.1984. He also executed a hypothecation deed on 3.12.1984 and the appellant and his father Channulal again stood guarantors for the loan. Thereafter, the borrower failed to repay the amount and the suit was filed. All the defendants admitted the execution of documents but they raised an objection with regard to rate of interest and it is further stated that the plaintiff got insured the Saw Mill and its stock and before expiration of that insurance policy, the stock of wood was burnt therefore, the Insurance Company becomes a necessary party. The learned trial Court framed only three issues, because most of the facts were admitted in the case and after taking evidence of both sides, the trial Court came to this conclusion that the stock of wood was not insured by plaintiff and the Insurance Company is not necessary party to this case. The defendants arc liable to pay the amount with interest and the suit was decreed accordingly. This appeal has been filed by the guarantor/defendant No.2 on these grounds that the stock of wood was got insured by the plaintiff with New India Insurance Company and therefore, the Insurance Company is liable to pay the amount and for that, the Insurance Company is a necessary party. Channulal, the other guarantor expired and no legal representatives were brought on record and as such, the whole suit was abated. There is no liability of the appe1lant for payment of amount. The learned trial Court has wrongly shifted the burden of proof on the defendants with regard to insurance of the Saw Mill. Channulal, the other guarantor expired and no legal representatives were brought on record and as such, the whole suit was abated. There is no liability of the appe1lant for payment of amount. The learned trial Court has wrongly shifted the burden of proof on the defendants with regard to insurance of the Saw Mill. The defendants admitted most of the claim of the plaintiff but raised an objection that insurance policy was taken by the plaintiff on behalf of defendants, therefore, it was the duty of the Insurance Company to pay the whole insured amount and on this ground, the Insurance Company becomes necessary party to the case. Since, this objection was raised by the defendants, therefore, the issue No.1 was rightly framed and the burden of proof was rightly placed on the defendants. It is apparent from the evidence of Sitar am (DW 1) that he could not prove the fact of insurance of the stock of wood. No insurance policy, was filed by the defendants. If the insurance policy was in the possession of the plaintiff, it was duty of the defendants to file an application for production of that document and then to prove it. But, the defendants failed to prove the document of insurance policy, which goes against them and an adverse inference could be drawn against them. On the other hand, Nirmal Kumar Jain (PW 1) has categorically stated in his cross-examination that the Bank only used to pay the premium of insurance policy on the directions of the party and the Bank never involves directly with the insurance of the property. This witness nowhere stated that any insurance policy was executed between the Bank and the Insurance Company on behalf of defendants. Therefore, the trial Court has rightly come to this conclusion that no insurance policy was taken by the plaintiff and the Insurance Company was not necessary party to this case. The appellant raised another objection with regard to abatement of suit, as the guarantor Channulal expired and no legal representatives of Channulal were brought on record first of all, this objection was not subject matter of the judgment impugned. If there was any interim order with regard to legal representatives of Channulal being brought on record, probably, no revision was filed against that order. If there was any interim order with regard to legal representatives of Channulal being brought on record, probably, no revision was filed against that order. Apart from that, the appellant is son of Channulal and in this appeal, it has not been stated that there was any other legal representative or Channulal apart from appellant. Therefore, the objection raised in this appeal with regard to abatement of the suit, has no force. The trial Court has rightly decreed the suit against the defendants/respondents on considering the oral and documentary evidence produced on behalf of both the parties. This appeal has no merits and is hereby rejected. The appellant shall bear the cost of this appeal as well as the costs of respondent No.1. Decree be drawn up accordingly.