Research › Search › Judgment

Delhi High Court · body

2010 DIGILAW 1290 (DEL)

STATE BANK OF PATIALA v. ROHINI TIMES

2010-12-14

VALMIKI J.MEHTA

body2010
VALMIKI J. MEHTA, J (ORAL) 1. By the present appeal under Section 96 of the Code of Civil Procedure, 1908, the appellant-Bank challenges the impugned judgment and decree dated 19.10.1996 whereby its suit for recovery of Rs.3,68,178.89 along with pendente lite and future interest was dismissed by the Trial Court. The defendants/respondents were ex parte in the Trial Court and have also not appeared in the present proceedings in spite of service by publication. 2. The Trial Court has dismissed the suit on the ground that the documents have not been duly proved and also the main case. The relevant para of impugned judgment is para 4 which reads as under:- “I have heard the ld. Counsel for the plaintiff and perused the evidence led by pltff by way of affidavit as well as the documents filed by the plaintiff during the evidence, and I find that the evidence of Sh. R.K. Sagar cannot be taken into consideration in view of the fact that he has given his evidence only in a general way. Documents filed by the plaintiff have not been proved by this witness according to law. Moreover, regarding the statement of accounts he has given incomplete evidence. I also find that at the time of filing affidavit in the evidence, the plaintiff has also filed certain documents which have been exhibited and have been marked as P1 to P17. Since the witness has failed to prove the documents, therefore, his evidence cannot be taken into consideration. Moreover, besides that, the statement of accounts filed by the plaintiff has not been certified under the Banker’s Book Evidence Act, therefore, the court cannot take any presumption also on the amount due against the defendants.” 3. I find that the impugned judgment is totally illegal and perverse. The appellant-Bank through its witness proved the execution of the documents of availing of the facility, the statement of account etc but in spite of the same, the suit has surprisingly been dismissed. The various security documents along with the statement of accounts and the mortage of the property were duly proved by documents `Exb.P1 to P17’. Though the exhibit number of the statement of accounts was not mentioned in the affidavit by way of evidence, the statement of accounts have also been exhibited as `Exb.P12 and P13’. The various security documents along with the statement of accounts and the mortage of the property were duly proved by documents `Exb.P1 to P17’. Though the exhibit number of the statement of accounts was not mentioned in the affidavit by way of evidence, the statement of accounts have also been exhibited as `Exb.P12 and P13’. The appellant-Bank, therefore, had clearly proved its case and, therefore, the suit ought to have been decreed, but which was instead dismissed. 4. The impugned judgment and decree is, therefore, set aside and the suit of the plaintiff-Bank for recovery of Rs.3,68,178.89 is decreed along with simple interest at 17.5% per annum pendent lite and future till realization with costs of the suit in the Trial Court as also the costs of the present appeal. Since the plaintiff has also prayed for a decree by sale of the mortgaged property, the suit, in fact, is a suit under Order XXXIV CPC, though the same has not so been mentioned. Accordingly, a preliminary decree is passed in favour of the plaintiff and against the defendants thereby granting time of six months to the respondents/defendants to pay the decretal amount. In case the decretal amount is not paid within the statutory period as specified under Order XXXIV CPC, the appellant/plaintiff is given liberty to apply for final decree for sale of the mortgaged property. In case the mortgaged property is not sufficient to recover the decretal amount, then the decreetal amount can be recovered from sale of the other assets of the respondents/defendants. 5. The appeal is accordingly disposed of as allowed. Let a decree be drawn up. The Trial Court records be sent back. CM No.8157/2005 Since the appeal has been disposed of, this application does not survive and is disposed of as such.