Judgment :- (1.) ON or about 27th January, 1998, the plaintiff instituted the above suit claiming as follows: - (a) A decree for a sum of Rs. 20,61,275.65/-; (b) Interest @ 24% per annum till realization thereof; (c) Attachment before judgment; (d) Receiver; (e) Injunction; (f) Such other or further relief. (2.) THE above suit was instituted mainly on the allegations that in the second week of September 1994 the plaintiff at the request of the 2nd defendant, Prabhu Shankar Agarwal, agreed to lend and advance a sum of Rs. 10,00,000/- to his wife, namely, the 1st defendant herein, Sudha agarwal, on certain terms and conditions which according to the plaintiff, would be borne out from the course of conduct and correspondences exchanged by and between the parties. The terms and conditions were - (I) that "the plaintiff would lend and advance a sum of Rs. 10, 00,000/-to the defendant No. 1", (II) that "the interest shall be paid @ 24% per annum" and (III) that "the defendant shall repay the said sum of Rs. 10,00,000/-along with accrued interest thereon, on or before 10th October, 1994" (3.) THE case of the plaintiff as made out in the plaint proceeds on the basis that the 2nd defendant represented to the plaintiff that the above loan was required for the business of the 1st defendant and the 2nd defendant promised that in the event of any default by the 1st defendant in repayment of the above loan the 2nd defendant would repay the same. The plaintiff believed such representation of the 2nd defendant and lent the said sum of Rs. 10,00,000/- by issuing two account payee cheques in favour of the 1st defendant of Rs. 5,00,000/-each drawn on Vijaya Bank dated 20th September, 1994 and 21st September, 1994 respectively. (4.) ON the expiry of the fixed period for repayment of the above loan the plaintiff called upon the 1st defendant to repay the said sum of Rs. 10,00,000/-by a letter dated 27th October, 1994. (5.) ON or about 31st March, 1995, the 1st defendant paid only a sum of Rs. 18,860/-towards purported payment of interest by a cheque dated 31st March, 1995 issued in favour of the plaintiff computing the rate of interest at 15% per annum in violation of the agreed rate of interest of 24% per annum. [see Paragraph-5 of the plaint]. (5.) ON or about 31st March, 1995, the 1st defendant paid only a sum of Rs. 18,860/-towards purported payment of interest by a cheque dated 31st March, 1995 issued in favour of the plaintiff computing the rate of interest at 15% per annum in violation of the agreed rate of interest of 24% per annum. [see Paragraph-5 of the plaint]. (6.) THE plaintiff, however, protested the payment of interest, @ 15% per annum only instead of 24% by the 1st defendant and again called upon the defendants on 10th April, 1995 to pay the said sum of Rs. 10,00,000/- with interest @ 24% per annum computed up to 31st March, 1995 aggregating a sum of Rs. 11,26,247/- within a week from the date of demand, i.e. 10th April, 1995. (7.) THE 1st defendant, however, unequivocally admitted the transaction in question and her indebtedness for the said sum of Rs. 10,00,000/- with interest and issued confirmation thereof in writing. (8.) THUS, the 1st defendant, according to the plaintiff, unequivocally admitted the aforesaid loan along with accrued interests and expressly or impliedly promised to pay the balance within a reasonable time. [paragraph-7 of the plaint]. (9.) IN spite of demands the 1st defendant and/or the 2nd defendant failed and neglected to pay the said sam of Rs. 10,00,000/-and the accrued interests thereon and the only payment that was made by the defendants was the said sum of Rs. 18,860/-on accourt of some Interests. (10.) THEREFORE, the plaintiff is entitled to the said principal sum of rs. 10,00,000/-with interest @ 24% per annum and also entitled to claim interest under the Interests Act. The particulars of the decretal claim of Rs. 21,61,275,65/- are provided in Paragraph-9 of the plaint. (11.) TO defend the above suit both the 1st and 2nd defendants filed their respective written statements admitting in clear terms the grant of loan of Rs. 10,00,000/-by the plaintiff in favour of the 1st defendant. They also admitted that the plaintiff granted such loan by issuing the said two cheques of Rs. 5,00,000/-each in favour of the 1st defendant. (12.) HOWEVER, the stand taken by the 1st defendant is that the plaintiff agreed to grant the loan of Rs. 10,00,000/- provided adequate security was given to cover the said amount. They also admitted that the plaintiff granted such loan by issuing the said two cheques of Rs. 5,00,000/-each in favour of the 1st defendant. (12.) HOWEVER, the stand taken by the 1st defendant is that the plaintiff agreed to grant the loan of Rs. 10,00,000/- provided adequate security was given to cover the said amount. On that basis the 1st defendant offered two jewelleries "being two necklaces fitted with diamond" as security and the plaintiff agreed to accept two necklaces as such security which were worth more than Rs. 10,00,000/ -. [paragraphs- 6 and 7 of the written statement of the first defendant]. (13.) IN Paragraph-10 of the written statement the first defendant stated as follows: -"accordingly, the defendant No. 1 received the two cheques of total amount of Rs. 10,00,000/- and the defendant No. 2 handed over two sets of jewellery shown earlier to the plaintiff who granted a receipt on 20th September, 1994 for acknowledgement thereof as security". (14.) IT is also the case of the 1st defendant that the said two cheques were duly encashed by the 1st defendant on two respective dates, namely, 21st September, 1994 and 24th September, 1994 and the amounts covered by the said cheques, namely, Rs. 10,00,000/- were credited in favour of the plaintiff in the books of account maintained by the 1st defendant. (15.) IN the normal course of business the 1st defendant forwarded confirmation of account in April 1995 where a balance of Rs. 10,60,000/- was shown in favour of the plaintiff as on 1st April, 1995. Although, the plaintiff was requested to confirm such account the plaintiff avoided to do so which the 1st defendant realized later that it was done with mala fide motive on the part of the plaintiff. (16.) THEN the 1st defendant received a letter dated 10th April, 1995 making a demand for repayment of the said loan with interests in which the plaintiff mentioned that an earlier communication dated 27th October, 1994 was made to the 1st defendant by the plaintiff. The 1st defendant, however, denied the receipt of the said earlier communication dated 27th October, 1994 but acknowledged the receipt of the said demand dated 10th April, 1995. According to the 1st defendant the rate of interest upon which such loan was obtained was agreed to be 15% and not 24% as wrongfully demanded by the plaintiff. The 1st defendant, however, denied the receipt of the said earlier communication dated 27th October, 1994 but acknowledged the receipt of the said demand dated 10th April, 1995. According to the 1st defendant the rate of interest upon which such loan was obtained was agreed to be 15% and not 24% as wrongfully demanded by the plaintiff. (17.) UPON receipt the said letter of demand dated 10th April, 1995 from the plaintiff the first defendant immediately contacted the plaintiff through her husband, the second defendant herein and wanted to know why 24% of interest was demanded by the plaintiff and told the plaintiff as follows: -"that in case any repayment was required by the plaintiff as claimed some more time is required to be given to arrange for repayment." (18.) ALTHOUGH the plaintiff assured that the confirmation of account would be sent shortly and the first defendant had every reason to believe the plaintiff, in reality, however, the plaintiff did not send the confirmation of balance nor did he forward any account as prepared by the plaintiff to the first defendant for confirmation of the account. The plaintiff also did not question the correctness of the confirmation of the account sent by the first defendant to him. (19.) THE first defendant, however, did not give any reply to the letter of demand of the plaintiff dated 10th April, 1995 as she was advised not to give any reply to the said letter because of the representation of the plaintiff to the second defendant whereby the plaintiff told the second defendant to ignore the said letter of the plaintiff dated 10th April, 1995. (20.) IN the month of April 1996 the first defendant, however, sent yet another confirmation of balance of her own in the normal course of business stating that a sum of Rs. 12,19,000/- was due and payable by the first defendant to the plaintiff on 1st April, 1996 and according to the first defendant though the plaintiff received the said statement of account from the first defendant, he did not raise any objection. (21.) IN the month of April 1997 the first defendant again forwarded a statement of account to the plaintiff as on 31st March, 1997 showing a sum of Rs. 13,78,000/- as due and payable by the first defendant to the plaintiff. (21.) IN the month of April 1997 the first defendant again forwarded a statement of account to the plaintiff as on 31st March, 1997 showing a sum of Rs. 13,78,000/- as due and payable by the first defendant to the plaintiff. (22.) ALTHOUGH no objection was raised by the plaintiff to the said statement of account showing the balance amount of Rs. 13,78,000/-, the first and the second defendants, however, received a letter from the advocate of the plaintiff in September 1997 itself "inter alia demanding a sum of Rs. 10,00,000/-together with interest @ 24% thereon", and acknowledging the payment of a sum of Rs. 18,860/-which sum was paid earlier by the first defendant by way of interest. (23.) EVEN in the said letter of demand issued on behalf of the plaintiff there was no whisper about any alleged guarantee given by the second defendant in favour of the plaintiff on behalf of the first defendant. [see paragraphs-11, 12, 13,14,15,16,17,18,19,20 and 21 at pages 3,4 and 5 of the written statement of the first defendant]. (24.) IN dealing with the letter of demand dated 25th September, 1997 by the Advocate of the plaintiff the allegations made in Paragraph-22 at page 5 of the written statement of the first defendant are set out below: -"the letter dated 25th September, 1997 issued on behalf of the plaintiff by his Advocate was not replied but the defendant No. 2 contacted the plaintiff and asked him to return two sets of ornaments and defendant No. 1 shall refund the amount along with the interest as per confirmation dated 1st April, 1997 and further interest of the agreed rate." (25.) THE above, I find, is the stand taken by the first defendant in her written statement to contest the claim or claims of the plaintiff. The second defendant in his written statement also admitted that the plaintiff lent an advanced to the first defendant a sum of Rs. 10,00,000/- for the purposes of her business but the said loan was granted against the security of her "jewellery". The second defendant in his written statement also admitted that the plaintiff lent an advanced to the first defendant a sum of Rs. 10,00,000/- for the purposes of her business but the said loan was granted against the security of her "jewellery". Instead of repeating the stand taken by the second defendant in his written statement, suffice it to say that the stand taken by the first defendant in her written statement and the stand taken by the second defendant in his written statement, if not identical, are very similar and that is why the stand of the second defendant in his written statement need not be stated in detail once again. (26.) HOWEVER, the second defendant also in no uncertain terms admitted the liability of the first defendant to repay the said loan of Rs. 10,00,000/-to the plaintiff together with interests. For the sake of convenience the statements made by the second defendant in Paragraph-9 at page 6 of his written statement are set out below: -"with reference to Paragraph-8 of the plaint wrongly numbered as Paragraph-9 this defendant states that so far as this defendant is aware of the defendant No. 1 is liable to repay the loan of Rs. 10,00,000/- to the plaintiff together with interest thereon @ 15% per annum. This defendant denies and disputes the legality, validity, correctness and propriety of the purported particulars as set out under the said paragraph." (27.) HOWEVER, the second defendant in his written statement unlike the first defendant also alleged that the plaintiff at all material times carried on "and still carries on money lending business and is a money lender within the meaning of Bengal Money Lenders Act, 1940" and since the plaintiff does not "and did not have any money lending lincence as required under the provisions of the said Act", the instant suit is hit by the provisions of the said Act and as such is liable to be dismissed or stayed by this Court "having due regard to the provisions of the said Act". The first defendant on the other hand simply said in her written statement that the suit "is not maintainable, inter alia, under the provisions of Bengal Money Lenders Act, 1940". [see Paragraph-1 of the written statement of the first defendant and paragraph-12 at page 7 of the written statement of the second defendant]. The first defendant on the other hand simply said in her written statement that the suit "is not maintainable, inter alia, under the provisions of Bengal Money Lenders Act, 1940". [see Paragraph-1 of the written statement of the first defendant and paragraph-12 at page 7 of the written statement of the second defendant]. (28.) ON the basis of the above pleadings of the plaintiff and the defendants in the plaint and the respective written statements, inasmuch as seven issues were, in fact, framed. However, for my purpose I do not think that the issues as framed, except the first issue, need be set out in detail as, in my opinion, only two issues, apart from the first issue with which I will deal with a little later, namely, issue Nos. 4 and 5 need be dealt with and answered, or rather the answer to these two issues will decide whether the plaintiff is entitled to the relief or reliefs as claimed by him in this suit. The said two issues, namely, issue Nos. IV and V of the framed issues are set out below: - Issue No.-[iv]: whether the plaintiff had advanced a loan of Rs. 10,00,000/-. Issue No.-[v]: whether the defendants had pledged any jewellery with plaintiff as a security for the said sum of Rs. 10,00,000/ -. (29.) STRICTLY speaking, I have merely set out the Issue No. (IV) not because the said issue has to be answered but because both the Issue No. (IV) and Issue No. (V) are intimately connected with one another The defence of the first defendant appears to be that against the said loan of Rs. 10,00,000/- which the plaintiff had lent in favour of the first defendant "two necklaces fitted with diamond" were offered by way of security for the said loan of Rs. 10,00,000/- and the plaintiff agreed to accept the two necklaces as security. In fact, the second defendant "handed over two sets of jewellery" (namely, the two necklaces) to the plaintiff who granted a receipt on 20th September, 1994 for acknowledgement thereof as security. [see paragraphs-7 and 10 of the written statement of the first defendant]. (30.) THE first defendant categorically stated in her written statement that the said two cheques of Rs. 5,00,000/- each issued in favour of the first defendant by the plaintiff and the above receipt acknowledging acceptance of the. [see paragraphs-7 and 10 of the written statement of the first defendant]. (30.) THE first defendant categorically stated in her written statement that the said two cheques of Rs. 5,00,000/- each issued in favour of the first defendant by the plaintiff and the above receipt acknowledging acceptance of the. said security were the only documents of the transaction in question and it was stated in Paragraph-11 of the written statement of the first defendant that "except two cheques and the receipt no other documents were executed by the parties in view of their cordial relationship". (31.) ON the basis of the pleadings of the parties and the admitted case on evidence I need not detain myself to find out whether the loan was at all granted by the plaintiff in favour of the first defendant as that is an admitted position and both the first and the second defendants, as aforesaid, have admitted and acknowledged in very clear terms that such loan was, in fact, granted in favour of the first defendant by the plaintiff. (32.) THE first defendant by issuing two written confirmations from her end also acknowledged the said loan and admitted that the said loan was to be repaid with interests. In fact, three such confirmations which are all admitted documents were issued by the first defendant in favour of the plaintiff. Needless to mention, the said confirmations were duly exhibited and marked Exhibit- d. (33.) THEREFORE, the above Issue No. (IV) need not be considered at all and the plaintiff is entitled to judgment and decree as claimed practically on the basis of the admission or admissions of the defendants, though the plaintiff was able to prove his own case on evidence as well so far as the plaintiffs claim for recovery of the said loan amount of Rs. 10,00,000/- is concerned with interests. (34.) HOWEVER, in order to substantiate their defence both the first and the second defendants have relied on a piece of document dated 20th September, 1994. The said document, it appears, had been written in Hindi and allegedly signed by the plaintiff, Ashok Kr. Dasani. The said piece of writing is marked Exhibit-(3) and appearing in the Judges brief of document as Serial No. (6) at page 21 thereof. The said document, it appears, had been written in Hindi and allegedly signed by the plaintiff, Ashok Kr. Dasani. The said piece of writing is marked Exhibit-(3) and appearing in the Judges brief of document as Serial No. (6) at page 21 thereof. (35.) FOR the Courts understanding an English translation of the said document has been provided for and for the sake of convenience the text of the said translation of the said document dated 20th September, 1994 which has been described in the Judges brief of document as "letter dated 20th September, 1994" is set out below. I must before setting out the English text of the said document point out that the said document cannot, in any event, be regarded as a letter as wrongly described in the Judges brief of documents: - "ashok Kumar Dasani greets to Smt. Sudha Agarwal. I have received your two necklaces through Mr. Prabhu Shankar Agarwal. The necklace of diamond is in the gold one necklace has a Weight of 21 gram with a 48 carrate of weight of diamond. Another necklace has a weight of 91 gram approx, with a 45 carrate weight of diamond. I have given Rs. 10,00,000/- (two cheques of Rs. 5,00,000/-)against the aforesaid two necklaces. The interest will be 1. 25%. Sd/- Ashok Kumar Dasani" (36.) SINCE the above document dated 20th September, 1994, I find, is in writing and signed allegedly by the plaintiff, I would consider the evidence of both the plaintiff and the defendants on the said document first. (37.) ONLY two questions were put to the plaintiff while he was being examined by his Counsel on the said two necklaces and on the question of furnishing security. The said two questions with their respective answers were as follows: - Q.-Did, at the time of granting the loan, the defendants place jewellery with you? a.-No, never. Q.-You have not lent and advanced the said sum of Rs. 10,00,000/- against any security? a.-No, never, [see Questions 52 and 53 in the cross-examination of Ashok kumar Dasani]. The said two questions with their respective answers were as follows: - Q.-Did, at the time of granting the loan, the defendants place jewellery with you? a.-No, never. Q.-You have not lent and advanced the said sum of Rs. 10,00,000/- against any security? a.-No, never, [see Questions 52 and 53 in the cross-examination of Ashok kumar Dasani]. (38.) AFTER disagreeing with the suggestions that two diamond necklaces were given by way of security to secure the loan in question the plaintiff said in his evidence (in cross-examination) on the above document dated 20th September, 1994, "it is totally a piece of fabrication, neither the writing is of mine nor is the signature, it is a forged document" (question 105 in cross-examination of the plaintiff). (39.) IN Examination-in-Chief the first defendant gave her evidence on the said document dated 20th September, 1994 saying that the said document was written "by the Munimji of the defendants, namely, one chatram Sharma" and the said document was signed by the plaintiff in the presence of the first defendant and on the question as to under what circumstances the document was written and signed, she said that the said document was written and signed "since we needed money". "We had talked with Ashok Bhai following which this was written" and that the ornaments mentioned in the said document belonged to the first defendant and that the said ornaments "were handed over to the; custody of the plaintiff. [questions 5, 6, 7, 8, 9, 10, 11 and 12, Examination-in Chief of the first defendant]. (40.) THE first defendant also said in her evidence-in-chief that when the said two necklaces were handed over to the plaintiff only three persons were present, namely, the plaintiff, the second defendant herein and the first defendant herself and none else and the said document dated 20th September, 1994 was written by the said Chetram Sharma in the presence of the three persons, namely, the plaintiff and the defendants. (41.) HOWEVER, Chetram Sharma in his evidence said that the two diamond necklaces were handed over by the first defendant to the second defendant who in turn handed over the same to the plaintiff in front of chetram Sharma himself. (41.) HOWEVER, Chetram Sharma in his evidence said that the two diamond necklaces were handed over by the first defendant to the second defendant who in turn handed over the same to the plaintiff in front of chetram Sharma himself. This evidence of Chetram Sharma appears in paragraph-2 of the evidence-on-affidavit affirmed by him on 31st January, 2005 and when Chetram Sharma gave his evidence in Court on 17th march, 2005, he said that he duly affirmed this affidavit on 31st January, 2005 and the contents of the affidavit were all true and correct. (42.) THERE is no doubt, however, that there is an apparent inconsistency in evidence regarding the presence of the persons at the time when the two necklaces in question were handed over to the plaintiff allegedly on 20th September, 1994. This inconsistency appears in the evidence of three different persons, namely, the said Chetram Sharma, who was described by the defendants as Munimji and the first and the second defendants themselves. (43.) INCIDENTALLY, it should be mentioned that Chetram Sharma also said in his evidence that the document dated 20th September, 1994 was written by him under the instruction of the second defendant, the plaintiff and the first defendant. The said affidavit of Chetram Sharma, however, affirmed on 31st January, 2005, says that the said document was written by him on the instructions of the plaintiff and the first defendant. (44.) LATER, in his evidence in Court Chetram Sharma wanted to improve his statements made by him in his affidavit by saying "although the two persons instructed him to prepare the said document dated 20th September, 1994 but actually there were three persons present in the Office premises". [question 18 of Chetram Sharma]. (45.) REGARDING the said document dated 20th September, 1994, the plaintiff on the one hand said in his evidence that the document in question was a manufactured document or a forged or fabricated one and the signature thereon was not his signature at all and on the other, the defendants and their Munimji, the said Chetram Sharma, in their evidence tried to establish the validity of the said document and said that the signature thereon was the signature of the plaintiff which was put by the plaintiff in their presence. (46.) FROM the said document dated 20th September, 1994 it is very difficult to make out as to what the true nature of the document is, should this document be termed and treated to be an instrument which was intended to be used evidencing a transaction regarding pawn or pledge of movable properties by way of security for the due repayment of money advanced by way of loan as has been attempted to be made out by the defendants as their defence to the claim or claims of the plaintiff in this suit? (47.) FOR the sake of convenience the text in English of the said document dated 20th September, 1994 has already been set out in this judgment. (48.) I have, for myself, found it extremely difficult, however, to appreciate as to why a document which was intended to be used as a formal agreement between the parties evidencing a transaction of this nature was so "sketchy". I use the expression "sketchy" or rather too sketchy as the said document dated 20th September, 1994, on a plain reading, in my opinion, is not intelligible enough to be construed in the manner or in the way the parties concerned intended to use such document. (49.) THE two necklaces which were intended to be used as security for the due repayment of the money advanced by way of loan in favour of the first defendant or the defendants, as the case may be, are incapable of "proper identification" of the said two necklaces as very many necklaces of that descriptions can fit in with such descriptions. (50.) WHY the parties, namely, the defendants on the one hand and the plaintiff on the other agreed to be satisfied with such a sketchy document, if not extremely sketchy document, when even the movable properties which were to be used by way of security for due repayment of the loan in question were not sufficiently described for their future identifications. (51.) WHY the said document was only signed allegedly by the plaintiff or rather the plaintiff alone where the first defendant was parting with such valuable properties, namely, two necklaces for obtaining the loan from the plaintiff and when, on the defendants own showing, at least three parties, namely, the plaintiff and the two defendants actively participated in preparing the "document" though the document itself was drafted or written by the said Munimji of the defendants, namely, the said Chetram Sharma. (52.) WHY the said document did not say that the said two necklaces were placed or pawned in favour of the plaintiff by way of security for the due repayment of money which was advanced in favour of the first defendant by way of loan. Why the said document does not even provide the minimum informations regarding the two cheques of Rs. 5,00,000/-, which were admittedly issued in favour of the first defendant by the plaintiff bearing two different dates, namely, 20th September, 1994 and 21st September, 1994. It is impossible to make out from the said document as to what interests were payable, if at all, by the defendants as the document says the "interest" will be 1.25% whether such interest was payable daily, weekly, monthly, half-yearly, yearly is impossible to make out and cannot, in any event, be made out at all with any reasonable certainty. (53.) IT is the defendants who said in their evidence that interest @15% per annum was payable though the same cannot, however, be made out from the said document dated 20th September, 1994. It is impossible for me to appreciate as to why a person like the second defendant who was and (is) such a successful businessman and his wife, namely, the first defendant, who according to the first defendant, was carrying on her so called "investment business" were happy with such a "sketchy", meaningless or unintelligible document when they were parting with their valuable properties, such as, two necklaces in favour of the plaintiff for allegedly securing the loan in question. (54.) I call the second defendant an experienced businessman as the second defendant was and (is) the owner of "haldiram Bhujiwala" which is perhaps well-known to every household today and the same was also quite famous when the alleged transaction in question between the plaintiff and the defendants took place. (54.) I call the second defendant an experienced businessman as the second defendant was and (is) the owner of "haldiram Bhujiwala" which is perhaps well-known to every household today and the same was also quite famous when the alleged transaction in question between the plaintiff and the defendants took place. (55.) IN addition to the submission that the said document dated 20th September, 1994 was a forged document and that the signature appearing thereon was not the signature of the plaintiff, the learned Senior Counsel Mr. Das for the plaintiff also referred to the provisions, namely, Article [6] of schedule to the West Bengal Amendment Act to the Indian Stamp Act, 1899 which makes it mandatory that any agreement for pledge must be duly stamped in the manner provided in the schedule. (56.) HAVING considered the schedule in question of the said amendment to the Indian Stamp Act, 1899, I cannot say that the said contention on behalf of the plaintiff is to be ignored. On the contrary, having considered the provisions or rather the amended provisions of the said act, I think the submissions of Mr. P.K. Das should be accepted and I accept the same. Mr. Das, however, sought to contend that since the document in question was not stamped or duly stamped at all as required under the said provisions the same could not, in any event, be accepted in evidence. (57.) ON the one hand the defendants, submitted the learned Counsel for the plaintiff, tried to make out a case of pledge, though the defendants miserably failed to make out such case by their evidence, and on the other hand, the defendants tried to treat the said document dated 20th September, 1994 as a "receipt". It was also pointed out by the learned counsel that the defendants never disclosed the ornaments or rather the necklaces in their income-tax return or wealth-tax return. He also said that the valuation report of the said two necklaces of one Ajoy Kumar sharoff should be rejected as the same had no evidentiary value in the first place as the valuer himself did not give any evidence in support of his alleged certificate, namely, the certificate regarding the weight or the weights of the said two necklaces. He also said that the valuation report of the said two necklaces of one Ajoy Kumar sharoff should be rejected as the same had no evidentiary value in the first place as the valuer himself did not give any evidence in support of his alleged certificate, namely, the certificate regarding the weight or the weights of the said two necklaces. However, the written descriptions of the two necklaces as mentioned in the certificate, I find, run contrary to the most "sketchy" and the most vague descriptions of the said two necklaces as mentioned in the said document dated 20th September, 1994. (58.) THE said certificate of Ajoy Kumar Sharoff, in my opinion, namely, exhibit-5 has made the descriptions of the two necklaces in the said document only too doubtful. Although the said valuation was made before the said document dated 20th September, 1994 came into existence as the valuation was made on 5th September, 1994, the same also was not even mentioned in the said document dated 20th September, 1994 at all. (59.) AFTER having considered the evidence on the document dated 20th September, 1994 in its entirety of both the plaintiff and the defendants including the said Munimji, I have not been able to persuade myself to hold that the said document could or can constitute a valid defence to the claim or claims in the suit of the plaintiff as sought to be made out by the defendants, or rather, the said document can at all be treated to be a defence to such claim or claims of the plaintiff. (60.) SO far as the first issue is concerned regarding the maintainability of the suit, relying on the provisions of the Bengal Money Lenders Act, 1940, namely, the provisions under Sections 8 and 13 thereof, it was argued that since the plaintiff did not have any licence as required under Section 8 of the said Act no decree could be passed in favour of the plaintiff in this suit and the suit as such should fail against the defendants. (61.) IN support of the submissions that the provisions of the above act applied to the transaction in question between the plaintiff and the defendants certain decisions were referred to and relied on by the learned senior Counsel Mr. Tibrewal on behalf of the defendants and I would briefly deal with such decisions a little later, if necessary. (61.) IN support of the submissions that the provisions of the above act applied to the transaction in question between the plaintiff and the defendants certain decisions were referred to and relied on by the learned senior Counsel Mr. Tibrewal on behalf of the defendants and I would briefly deal with such decisions a little later, if necessary. (62.) SINCE the second defendant took the stand in his written statement that the plaintiff carried on money lending business and was a money lender within the meaning of the 1940 Act and that he did not have any money lending lincence at the relevant point of time, the onus, in my opinion, is on the defendants to prove that at the time when the transaction took place between the plaintiff and the defendants, the plaintiff was, in fact, a money lender, or engaged in money lending business within the meaning of the Act. [see Ka Icilda Wallang and Ors. v. U. Lokendra Suiam, reported in AIR 1987 SC 2047 ]. (63.) IN the definition section, namely, Section 2 of the Act both the words lender and money-lender have been defined. Section 2(9) says-"lender" means a person who advances a loan and includes a moneylender. Section 2 (13) says- "money-lender" means a person who carries on the business of money-lending in West Bengal or who has a place of such business in West Bengal, and includes a pawnee as defined in section 172 of the Indian Contract Act, 1872; (9 of 1872). Section 2 (14) says-"money-lending business" or "business of money-lending" means the business of advancing loans either solely or in conjunction with any other business. (64.) IN Satyanarayan Kamal Kumar v. Birendra Pr. Singh and Anr., reported in AIR 1979 Cal. 197 , this Court had the occasion to consider the above two expressions used in Sections 2 (9) and 2 (13) of 1940 Act, namely, lender and money- lender and after considering the definitions of the above two expressions, lender and money-lender the Court was of the opinion that "the above definitions clearly establish that money lender is a person who carries on business of money lending in the regular course of business but mere lender is not so". (65.) IT was found by the Court in that case that though the plaintiff had granted two loans to the defendant on two separate occasions, even then the plaintiff could not come under the definition of money-lender as there was no evidence-on-record that it carried on business of money lending in the regular course of its business. (66.) IT was further held that the persons who had entered into one or two isolated transactions of advancing money would come under the definition of lender as defined in Section 2 (9) of the Act and could not be regarded as money lender within the meaning of the 1940 Act. (67.) NEEDLESS to mention that in that case since the Court found that the plaintiff was merely a lender he was not required to obtain any money lending licence as the licence was only required for those who carried on money lending business on a regular basis. (68.) THE above case as rightly contended by Mr. Das for the plaintiff fully supports the case of the plaintiff in this case. [see also Gajanan and ors. v. Seth Brindaban, reported in AIR 1970 SC 2007 ]. (69.) IN cross-examination of the plaintiff only one question was put to him regarding the nature of the business that the plaintiff carried on. For the sake of convenience two questions and answers in this regard are quoted below: - Q.-What is the nature of the business that you carry on? a.- Trading business. Q.-Do you have any licence under the Bengal Money lenders Act? a.-No, I do not have licence. [see Questions 65 and 76 in cross-examination of Ashok Kumar dasani, the plaintiff]. (70.) IN the entire cross-examination, however, I have failed to find any question or any suggestion even as to whether the plaintiff had a place of money lending business or that he was engaged in any such business in the first place. Apart from these two questions and answers nothing else is to be found from the entire cross-examination of the plaintiff. Apart from these two questions and answers nothing else is to be found from the entire cross-examination of the plaintiff. (71.) ON the allegation that the plaintiff was a money lender at the time when the plaintiff granted the loan in question by issuing the said two cheques in favour of the first defendant, the plaintiff was not cross-examined by the defendants regarding his alleged money lending business as the defendants were, I think, too shy to make even any attempt to prove that the plaintiff was acting as a money lender within the meaning of the Act at the time when he granted the loan in favour of the first defendant. (72.) IT is an admitted position that the plaintiff happened to be a family friend of the defendants and that is why the second defendant could request him as he did to provide the loan in favour of his wife, namely, the first defendant as the first defendant allegedly needed money. The second defendant in his Examination-in-Chief said that both the plaintiff and the second defendant were familiar to one another, no question, not even a suggestion was made to the second defendant regarding the alleged money lending business, or, whether the plaintiff acted as a money lender at the time when the transaction in question took place. (73.) IN cross-examination the second defendant had even gone to the extent of saying that the plaintiff was a "kind of relative to" them. For the sake of convenience again, as to how close the relationship between the defendants and the plaintiff was, the following questions and answers of the second defendant in his cross-examination are set out below: - Q.- Despite the fact that the letter was written not to choose to give any reply any of the letters received by you? a.-Since Ashok Bhaiji is kind of relative to us. He told me that he was (had) written this letter for the sake of records and I should not take it up with him in writing. Q.- What is the relationship between you and plaintiff? a.-Ashok Bhaijis father was the great friend of my father. Q.- That is all? a.- Yes, they were very close to another. Q.- Based on the friendship of your father and the father of the plaintiff you are saying that the relationship between you and Ashok Bhaiji? a.-That is so. Q.- What is the relationship between you and plaintiff? a.-Ashok Bhaijis father was the great friend of my father. Q.- That is all? a.- Yes, they were very close to another. Q.- Based on the friendship of your father and the father of the plaintiff you are saying that the relationship between you and Ashok Bhaiji? a.-That is so. My relationship with Ashok Bhaiji is also an extension of the relationship that existed between his father and my father and it is very old one. [see Questions and Answers 119 to 122 of the cross-examination of Prabhu Sankar Agarwal]. (74.) A person, namely, the plaintiff who according to the second defendant was only familiar to him or to them, namely, to the defendants (in his Examination-in-Chief), became so close in the cross-examination that the second defendant called the plaintiff as a relative of the defendants. It is the most close and cordial relationship between the plaintiff and the defendants which prompted the second defendant to approach the plaintiff for obtaining the loan in favour of his wife, namely, the first defendant and that is why the plaintiff though did not have sufficient financial capacity or rather was not financially capable of granting the loan by himself to the extent of Rs. 10,00,000/-, obtained the loan from the market against security. The fact that the financial capacity was lacking on the part of the plaintiff in granting the loan in question would be evident, argued Mr. Tibrewal, learned Senior Counsel on behalf of the defendants, from the Bank Book of the plaintiff. (75.) IT is inconceivable to even assume that a person who was actively engaged in money lending business or was acting at the relevant point of time as money lender would lack sufficient funds to lend money to a borrower who came to borrow money from him, the money lender. (76.) THE firm stand taken both by the first and the second defendants in their respective written statements is that it is the close relationship between the plaintiff and defendants which prompted the second defendant to approach the plaintiff for the loan in question in favour of his wife and by virtue of such relationship the plaintiff on his part arranged the loan from the market or from somebody else for the first defendant against security. (77.) IN fact, the second defendant said in his evidence-in-cross-examination as follows: - Q.- If the relations between you and Ashok Bhaiji are so cordial then why you (h. e) did not give any loan without any security? a.- Ashok Bhaiji wanted to take money from somewhere else and this fact he did not tell me but as the loan had to be taken from a third party the security became necessary. Q.-Is it your case that the plaintiff lent and advanced money to your wife after borrowing money from third person? a.- Although I would not be able to say anything accurately about this but I think it was so. Q.-Just now you told me that the necessity of security was understood because the plaintiff have to borrow the money from a third person - did you say that? a.- That is so what I have said. Q.- Are you then saying that the plaintiff lent and advanced this money after borrowing from a third person? a.- I felt so. Q.-In that event the security was required by the plaintiff to secure the third party? a.-I had such a feeling from what he said. [see Questions 140,141,142, 143 and 144 in cross-examination of Prabhu Sankar Agarwal]. (78.) THE above evidence of the second defendant himself, in my opinion, runs contrary to the allegations in his written statement that the plaintiff was engaged in money lending business at the time when he granted loan in favour of his wife, the first defendant herein. (79.) IN Shiv Kumar Todi v. Amolak Chand Champalal, reported in 1993 (2) CLJ 135 , the learned Judge found that there was sufficient evidence to call the plaintiff a money fender and since the plaintiff was found to be a money lender, the learned Judge was of the opinion that the suit of the plaintiff should fail as the plaintiff did not have requisite money lending licence. In that case, the teamed Judge; in fact, found, "that the plaintiff did not previously know the person who actually came to take the loan but that he only knew another person who had introduced the actual taker of the money". "there is no suggestion that the loan was advanced for any but business purpose or amongst relations or friends. In that case, the teamed Judge; in fact, found, "that the plaintiff did not previously know the person who actually came to take the loan but that he only knew another person who had introduced the actual taker of the money". "there is no suggestion that the loan was advanced for any but business purpose or amongst relations or friends. It must be noted that continuing business relationship amongst two business houses would not class as friendship or relationship but that would be strong evidence of business dealings with one another". [see Paragraph-34 at page 147 of the report]. (80.) SINCE I have referred to Shiv Kumar Todi (supra), I must also point out that the opinion of the learned Judge that a suit of a plaintiff should fail if it is found that the plaintiff did not have the requisite money lending licence at the time when the transaction in a given case between the plaintiff and the defendant took place was thoroughly disapproved by the Division Bench in a later case before it, namely, Swaika Vanaspati Products Ltd. v. Canbank Financial services Ltd., reported in 2000 (2) CLJ 185. (81.) THE above opinion of the learned Judge expressed in Shiv Kumar todi (supra) was, in fact, treated by the Division Bench as the "ratio" led down by the learned Single Judge in Shiv Kumar Todi which, according to the Division Bench, was held to be not good law and that it was required to be overruled. And in the language of the Division Bench, and I quote -"we, accordingly, declare that the ratio in Shiv Kumar Todis case as being contrary to the provisions of law as contained in Section 13 of the Act and overrule the aforesaid judgment". And in the language of the Division Bench, and I quote -"we, accordingly, declare that the ratio in Shiv Kumar Todis case as being contrary to the provisions of law as contained in Section 13 of the Act and overrule the aforesaid judgment". (82.) ALTHOUGH, strictly speaking, it is not necessary on my part to mention the effect of the pronouncement of the Division Bench in Swaika vanaspati (supra), what the Division Bench, in fact, held was that in a case where it is found that the plaintiff being a money lender did not have the requisite licence the suit of the plaintiff cannot fail on that ground, in such a situation the plaintiff should first be given the opportunity to pay the penalty as contemplated under Section 13 of the 1940 Act and so long the penalty is not paid by the plaintiff for not holding the requisite money lending licence, his suit cannot proceed nor a decree can be passed thereon until the plaintiff pays the penalty. (83.) IT is only when the plaintiff fails to pay the penalty, then only his suit is liable to be dismissed. If he pays the penalty the suit would proceed and the decree could be passed, provided, of course, a plaintiff is in a position to prove his case to obtain such decree. (84.) IN every case of this nature, in my opinion, the person or rather the defendant who takes the plea that the plaintiff did not posses money lending lincence at the time when the transaction took place must discharge his initial burden of proving that the plaintiff was to be regarded as money lender at the time when the transaction took place in order to prevent the plaintiff from obtaining a decree without such licence. But that in such a situation the plaintiff is entitled to pay penalty in order to proceed with his suit or rather in order to obtain decree thereon has by now been well-established and in this regard the decision in Swaika Vanaspati (supra) of the Division Bench of this Court is, in my opinion, a binding authority. (85.) BOTH the learned Counsel for the plaintiff and the defendants referred to certain decisions in support of their respective contentions that the plaintiff was and was not a money lender at the time of grant of loan in question in favour of the first defendant. (85.) BOTH the learned Counsel for the plaintiff and the defendants referred to certain decisions in support of their respective contentions that the plaintiff was and was not a money lender at the time of grant of loan in question in favour of the first defendant. I do not think those cases need be dealt with in any detail as I find after considering the evidence and the pleadings of the parties that the defendants themselves proved it to be a friendly loan rather than proving that the plaintiff granted such loan in favour of the first defendant at the request of the second defendant as a money lender. (86.) AT the cost of repetition, I must point out that the relationship between the defendants and the plaintiff was so close that the plaintiff, according to the defendants, went out of his way to borrow money from the market or from a third party as the plaintiff did not have sufficient funds to provide the loan himself to keep the request of the second defendant and granted the loan. (87.) I am sure, on the basis of the evidence of the defendants, in particular the second defendant, the plaintiff could be termed anything but a money lender. On the contrary, the attitude and the approach of the plaintiff were to obtain the money from the market or from a third party so that he could keep the request of the second defendant to grant the loan in favour of the first defendant as, admittedly, the plaintiff happened to be a very close family friend of the defendants. (88.) HOWEVER, since I find that the plaintiff did not grant the loan in question in favour of the first defendant as a money lender and rather he granted such loan as a family friend of the defendants, as is the admitted position, I do not think it necessary to deal with the decisions cited by the learned Senior Counsel Mr. Tibrewal for the defendants on this aspect. (89.) HOWEVER, the contention of the learned Counsel Mr. Tibrewal for the defendants on this aspect. (89.) HOWEVER, the contention of the learned Counsel Mr. Das on behalf of the plaintiff that since the loan was granted by cheque or rather cheques, the transaction or rather the loan in question could not, in any event, come under the purview of the said 1940 Act by virtue of sub-section (12) of Section 2 and Clause (e) of such sub-section of the Act need be dealt with briefly. Sub-section (12) of Section 2 and Clause (e) of such sub-section provide as follows: - "loan" means an advance, whether of money or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include-"an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note (26 of 1881)". (90.) MR. Das sought to contend that since the loan was granted by the plaintiff by account payee cheques the cheques were to be regarded as negotiable instruments and as such the said loan could not, therefore, come within the ambit of 1940 Act as an account payee cheque should be treated as a negotiable instrument as defined in Sections 6 and 13 of the negotiable Instrument Act (1881 Act, in short). For the sake of convenience section 6 of the 1881 Act without its explanations and Section 13 and its first explanation are set out below: - "cheque".-A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. 13. "negotiable instrument".-[ (1) A "negotiable instrument" means a promissory note, bill of exchange or cheque payable either to order or to bearer. Explanation (i).-A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable]. [the other explanations of Section 13 (1) and subsection (2)of Section 13 of the 1881 Act need not be set out for the present purpose]. [the other explanations of Section 13 (1) and subsection (2)of Section 13 of the 1881 Act need not be set out for the present purpose]. (91.) THUS on a. combined reading of sub-section (12) of Section 2 and Clause (e) of such sub-section of the said 1940 Act and Section 13 (1) with its explanation (i) and Section 6 of the 1881 Act makes the contention of Mr. Das so strong that I find no reason not to accept the same, more so when the two account payee cheques issued in favour of the first defendant were not specifically made "not negotiable" and as such the cheques in question were and are to be treated as negotiable instruments and I treat the said cheques as such accepting the submission of Mr. Das. (92.) WHAT is the effect of a cheque crossed generally or especially bearing in either case the words "not negotiable" is provided in Section 130 of the 1881 Act. However, since I am of the opinion that the cheques issued in the instant case are to be treated as negotiable instruments since they were not specifically made not negotiable, these two cheques come very much within the exempted category mentioned in Clause (e) of subsection (12) of Section 2 of the 1940 Act. (93.) THE Special Bench of this Court in M/s. Tailors Priya v. M/s. Gulabchand Danraj, reported in AIR 1963 Cal 36 had the occasion of considering a question whether a plaintiff was entitled to institute a suit under the provisions of Order 37 of the Code of Civil Procedure on the basis of an account payee cheque issued in favour of the plaintiff which was dishonoured. (94.) HOWEVER, while the Honble Judges of the Special Bench unanimously held that a cheque baring "account payee only" was a bill of exchange and on that basis the plaintiff could institute a suit on such cheque under the provisions of Order 37 of the Code of Civil Procedure, the Special Bench did not think it necessary to consider whether such cheque was also to be treated as a negotiable instrument within the meaning of Section 13 of the Negotiable Instrument Act, 1881 as the said question did not specifically arise for decision in that case. (95.) HOWEVER, from a plain reading of the judgment of the Special bench it appears that the Honble Judges did not doubt the negotiability of "an account payee cheque" or rather that "an account payee cheque" is also a negotiable instrument. (96.) AFTER considering the position of law in England on this aspect, his Lordship Justice D.N. Sinha was pleased to hold in the above case as follows: -I, therefore, hold that according to the law as it stands at present, a cheque payable to order or bearer and crossed a/c payee" or "a/c payee only" but without the indorsement, "not negotiable", is a negotiable instrument, and may be negotiated, but the collecting banker has a duty to put the money, when collected, into the account of the payee indicated, and into no other account." [see Paragraph-18 at page 42 of the report]. (97.) AGAIN, it was held by the Division Bench of the Allahabad High court that the negotiability of a crossed cheque could only be destroyed if the same was marked as "not negotiable" on its face, it could not be destroyed by its simply being crossed whether generally or especially. [see Durga Shah Mohan Lal Bankers v. Governor General in Council and ors. , reported in AIR (39) 1952 Allahabad 590]. (98.) IN view of the above, the contention of Mr. Tibrewal on behalf of the defendants and his reliance on the passage from Pagets Law of banking, Twelfth Edition, at page 267 thereof, does not persuade me to hold otherwise that the account payee cheques are not to be treated as negotiable instrument within the meaning of the said 1881 Act. (99.) IF I proceed on the basis of the above provisions in the Bengal money Lenders Act on which Mr. Das had relied in support of his contention that the loan granted by the account payee cheques could not, in any event, come within the purview of Bengal Money Lenders act, which I do, will take the loan in question undoubtedly out of the purview of the Bengal Money Lenders Act. Das had relied in support of his contention that the loan granted by the account payee cheques could not, in any event, come within the purview of Bengal Money Lenders act, which I do, will take the loan in question undoubtedly out of the purview of the Bengal Money Lenders Act. But, as I said above that the defendants have miserably failed to even discharge their initial burden of proving that the plaintiff acted or Was acting as a money lender or was engaged in money lending business at the time when the transaction in question took place, namely, when the plaintiff granted the loan in question in favour of the defendants. (100.) SINCE the defendants, in my opinion, have been unable to discharge this initial burden of proving that the plaintiff acted as money lender at the time when the transaction took place between the plaintiff and the defendants, the question whether the account payee cheques issued by the plaintiff in favour of the first defendant for granting the loan would at all come within the purview of the said 1940 Act cannot be regarded as a primary question or a fundamental one but the same could at best be treated to be a secondary question, if not, an academic one. (101.) LAST but not the least, although both the defendants tried to establish in their written statements that the loan was, in fact, granted in favour of the first defendant at the request of the second defendant, from the evidence of the second defendant himself it is clear, however, that though the cheques were issued in the name of the first defendant, the said loan was, in fact, obtained by the second defendant for his business only. (102.) BEFORE I say what the second defendant, in fact, had said in his evidence I must point out what the first defendant, namely, the wife of the second defendant had said in her evidence. She said, "i am by occupation house-wife". She also said in her evidence that since in answer to a question, namely, in what circumstance the document dated 20th September, 1994 was written, her answer was "since we needed money this document was written we had talked with Ashok Bhaiji following which this was written (See Question 10 of the first defendant in Examination-in-Chief)". She also said in her evidence that since in answer to a question, namely, in what circumstance the document dated 20th September, 1994 was written, her answer was "since we needed money this document was written we had talked with Ashok Bhaiji following which this was written (See Question 10 of the first defendant in Examination-in-Chief)". By the expression "we needed money" she exposed the truth that she and her husband, the second defendant herein, both needed the money and as such the loan was obtained. (103.) THEN, regarding the so-called business of the first defendant the following evidence of the first defendant need be set out: - Q.-So it is your evidence that the entire transaction which took place between you and the plaintiff was done by your Husband only? a.- What I wanted to say was since this man was my husbands friend, he dealt with him. Q.- The investment business which was looked by you was carried out by your husband? a.- I had participated in it only as amateurish but it was primarily looked after by my husband. [see Questions 90 and 91 in cross-examination of Sudha Agarwal]. (104.) THEN the following evidence of Prabhu Sankar Agarwal need also be set out below: - Q.- You have deposed before this Court that you are associated with Haldiram Bhujiwala a very well-known firm-then what was the occasion for taking a loan of Rs. 10,00,000/-? a,- In 1994 we had certain problems in share market. Q.- What was the necessity of taking loan by pledging of jewelleries? a.-Following a rumour for which our firm suffered, there was the need of taking a loan against pledging of jewellery. Q.-What was the rumour? a.- A rumour in share market to the effect that the shares of haldiram Bhujiwala have gone down in value because the company has ran into debts. Q.- Was this loan lent and advanced to Haldiram Bhujiwala? a.- No. Q.- I put it to you that you took the loan in the name of your wife for your own purpose? a.- I disagree. Q.-Within which period the loan was repayable to the plaintiff? a.-As soon as possible. [see Questions 51,52,53,54,55 and 56 in cross-examination of prabhu Sankar Agarwal, the second defendant]. a.- No. Q.- I put it to you that you took the loan in the name of your wife for your own purpose? a.- I disagree. Q.-Within which period the loan was repayable to the plaintiff? a.-As soon as possible. [see Questions 51,52,53,54,55 and 56 in cross-examination of prabhu Sankar Agarwal, the second defendant]. (105.) ON the basis of the above evidence of both the first and the second defendants, I have no manner of doubt that though the loan was obtained by the second defendant in favour of the first defendant as the cheques in question were issued in the name of the first defendant, in reality, it is the second defendant and the first defendant both obtained the loan primarily for the business purposes of the second defendant because even the so-called investment business of the first defendant was actually the business of the second defendant and the first defendant was mere a participant as an amateur. (106.) THE second defendant, in my opinion, by his own evidence as above made it clear that the said loan was really needed for his own business and that is why I also make him liable to repay the same to the plaintiff. At this stage, I cannot help saying that the "truth", in fact, had come out in the evidence of both the defendants as the same has a bad habit of coming out anyway. (107.) THUS, there will be a decree for Rs. 10,00,000/-and there will be a further decree for interest @ 18% per annum on the above decretal amount of Rs. 10,00,000/- from 1st April, 1995 till the date of the judgment, i.e. 17th July, 2007 and there will be a decree for interest @ 12% per annum on the above decretal amount of Rs. 10,00,000/- with effect from 18th July, 2007 till the plaintiff receive the decretal amount or till the decree passed herein is satisfied. The plaintiff is also entitled to costs of the suit assessed at Rs. 50,000/- and the plaintiff is entitled to the costs, over and above, the court fees that the plaintiff had paid for the purpose of institution of the suit. (108.) IT is made clear that since pursuant to the order passed by the Court on a "chapter-13a application" of the plaintiff, the defendants had to furnish a bank guarantee to the tune of Rs. (108.) IT is made clear that since pursuant to the order passed by the Court on a "chapter-13a application" of the plaintiff, the defendants had to furnish a bank guarantee to the tune of Rs. 11,00,000/-, the plaintiff, needless to mention, will be entitled to apply for encashment thereof in his favour and if the payment is made under the said guarantee the amount so paid will be adjusted against the decretal amount in pro tanto satisfaction thereof. The suit is, thus, decreed as above.