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2007 DIGILAW 397 (GAU)

Pradyut Dutta v. United Bank of India

2007-06-05

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. I have heard Mr. G.N. Sahewalla, learned senior counsel, appearing on behalf of the appellant. None has appeared on behalf of the respondent. 2. This is an appeal against the judgment and decree, dated 30.5.1994, passed by the learned Assistant District Judge, Tinsukia, in Title Suit No. 21/1988, whereby the respondent's suit has been decreed, on contest with cost, for Rs. 5,16,367.08 with interest @ Rs. 6% per annum from the dale of institution of the suit until recovery of the entire decretal amount with further declaration that the respondents shall have a charge on the hypothecated goods, debts and movable assets of the defendants and shall be entitled to resale thereof for the purpose of recovery of their decretal dues. 3. The respondent-bank instituted Title Suit No. 21/1988 aforementioned, its case being, in brief; thus : The bank had, on 21.4.1975, sanctioned to the defendants overdraft limit of Rs. 40,000 and facilities for purchase of cheques up to a sum of Rs. 10,000. The defendants executed, on 23.4.1975, a promissory note for the said sum of Rs. 40,000, a letter of continuity, a letter of lien, deed of hypothecation of plant and machinery and deed of hypothecation of debts and movable assets. On the same day, i.e., on 23.4.1975, the defendants also executed a deed of guarantee making themselves jointly and severally liable for the debts so incurred. In course of time, on the request made by the defendants, the plaintiff-bank raised the overdraft limit and cheque purchase facilities up to the sum of Rs. 85,000 and Rs. 25,000 respectively on 19.10.1976 and 22.2.1977. In terms of the enhancement of the overdraft limit and the cheque purchase facility, the defendants executed, on 22.2.1977, a letter of continuity, a letter of lien, deed of hypothecation of plant and machinery and deed of hypothecation of debts and movable assets. The defendants availed the facilities, so sanctioned, by the plaintiff-bank; but...in making payment of the amounts drawn by them. As a result of their failure to pay their dues, the defendants incurred, in all, a sum of Rs. 5,14,968.68 as debt. The defendant No. 1, on various dates, issued letter of confirmation admitting the liabilities, these letters having been issued on 1.1.1979, 1.7.1985, 18.7.1987 and 2.2.1988. The defendants also executed a demand promissory note for Rs. 65,000 on 18.7.1987 and deed of hypothecation and deed of guarantee. 5,14,968.68 as debt. The defendant No. 1, on various dates, issued letter of confirmation admitting the liabilities, these letters having been issued on 1.1.1979, 1.7.1985, 18.7.1987 and 2.2.1988. The defendants also executed a demand promissory note for Rs. 65,000 on 18.7.1987 and deed of hypothecation and deed of guarantee. Though the plaintiff-bank issued notice to the defendants demanding payment of their outstanding dues, the defendants failed to clear their debts. The plaintiff-bank accordingly instituted the suit for recovery of Rs. 5,16,367.08 with cost and future interest and for declaration of charges on the hypothecated goods allowing the plaintiff-bank to sale the same for recovery of their dues. 4. The defendants contested, the suit by contending, infer alia, that the suit was not maintainable, there was no cause of action and that the suit was barred by limitation. The defendants also denied sanction of the overdraft limit and also the cheque purchase facilities having been granted by the plaintiff-bank in favour of the defendants. The case of the defendant was, thus, a case of complete denial of liability. (1) Based on the pleadings of the parties, following issues were framed: (2) Is the suit maintainable ? (3) Whether the plaintiff has rigid to sue or cause of action against the defendants? (4) Is the suit barred by limitation ? (5) Whether the defendants received the loan on condition of hypothecation of Automobile spare parts etc. (6) Whether the documents executed by the defendants enforceable in law? (7) Whether the liabilities of the guarantor are co-extensive with the principle debtors what are their respective liabilities to the plaintiff-Dank? (8) Whether the plaintiff is entitled to the decree as prayed for ? 5. In support of their case, the plaintiff examined two witnesses. The defendants adduced no evidence. As the learned trial court decided all the issues in favour of the plaintiff-bank, the impugned decree followed. 6. Appearing on behalf of the appellant, Mr. Sahewalla, learned senior counsel, has submitted that the suit, in the present case was barred by limitation, but the learned court below did not correctly appreciate this aspect of the case and, hence, the impugned decree, according to Mr. Sahewalla, is wholly illegal and cannot be sustained. 7. While considering the above aspect of the case, what needs to be noted is that in their plaint, the defendants merely took the plea that the suit was barred by limitation. Sahewalla, is wholly illegal and cannot be sustained. 7. While considering the above aspect of the case, what needs to be noted is that in their plaint, the defendants merely took the plea that the suit was barred by limitation. In support of this plea, there is no specific averment was made or facts stated by the defendants in their written statement. 8. Coupled with the above, the bank has proved Ext. 1 as the letter of sanction; dated 21.4.1975, whereby the overdraft limit of Rs. 40,000 and cheque purchase facilities up to Rs. 10,000 were sanctioned by the plaintiff-bank in favour of the defendants. The plaintiff-bank has also proved exts. 2, 3 and 4 as the Demand Promissory Notes. Letter of continuity and letter of hypothecation respectively issued by the defendants. Ext. 8 has been proved by the bank as the letter, whereby overdraft limit was enhanced to Rs. 85,000 and cheque purchase if facilities up to Rs. 25,000. Exts. 17 to 20 are the balance confirmation letter, issued by the defendants. Ext. 38 is the Statement of Account maintained by the bank. 9. What is, now, of utmost important to note is that nothing was elicited by the defendants from the cross-examination of the two witnesses of the plaintiff-bank to show that the claim of the plaintiff-bank dial the defendants had enjoyed the overdraft limit and cheque facilities, as contended by the bank, were false. The defendants merely denied that none of the documents, in question, were ever signed by the defendants. The defendants even denied that they had taken any loan. The defendants did not, however, specifically dispute the correctness of the Statement of Account nor did they dispute the fact that according to the Statement of Account (Ext. 38), the transaction by the defendants were continued and deposits from time to time had been made by the defendants in this accounts maintained by the Bank. There was, overwhelming evidence on record to show that the defendants had incurred debts by way of having enjoyed the overdraft limits, and cheque facilities and that deposits had been made by the defendants on various dates, the last of such deposits being on 6.2.1998. 10. In the face of the evidence as indicted hereinbefore, there was really nothing for the learned trial court to hold that the suit stood barred by limitation. 10. In the face of the evidence as indicted hereinbefore, there was really nothing for the learned trial court to hold that the suit stood barred by limitation. When payment on account of debts or of interest is made before the expiry of the prescribed period by the person liable to pay debt, a fresh period of limitation commences. With the deposit of diverse sums of money of various debts by the defendants, as reflected by Ext. 38, fresh period of limitation concerned and the suit, in question, in the face of the fact of deposits by the defendants, could not have been held to be barred by limitation. 11. Coupled with the above, when the plaintiff had successfully proved that the defendants had incurred the debts as contended by the plaintiff and when the demand for payment of the dues made by the plaintiff was within the period of limitation, the learned trial court acted within its powers in decreeing the suit. Considered, thus, it is clear that the impugned decree suffers from no infirmity, legal or factual. 12. Because of what have been discussed and pointed out-above, I find absolutely no merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed with cost. 13. Send back the LCR.