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2012 DIGILAW 24 (JK)

Citizen Co-operative Bank Ltd. v. Raj Kumar

2012-02-03

Sanjay Gupta

body2012
1. Petitioner bank has filed present revision petition against the order of Registrar Coop. Societies Jammu dated 25-4-2009, by virtue of which arbitration petition filed by the bank with regard to recovery of loan amount to the tune Rs. 4,39,755/- calculated up to 30-11-2003 has been disposed of with direction to bank for holding an inquiry into the conduct of officers of bank branch new plot Jammu, responsible for advancement of loan amount in departure of normal procedure. It has been further directed by the court below that, the responsibilities shall be fixed on concerned officer and amount held under the petition along with interest be recovered from the concerned officer. Borrower has been absolved from the loan amount. 2. Petitioner bank has challenged the order on the grounds that, court below has failed to exercise jurisdiction invested in him. That court below has completely failed to appreciate, that respondent no. 1 has executed all necessary documents. That court below was under obligation to give its finding on fact that as to whether loan amount was outstanding against respondent no. 1 or not. That court below has failed to appreciate the evidence placed by bank before him. 3. Heard perused the record of court below. 4. Brief facts necessary for deciding the matter are that, Raj Kumar borrower obtained a loan from bank branch office New Plot, on 7-8-1990, for purchase of Maruti Car, to the tune of Rs 80000/-,this loan was obtained against the hypothecation of Maruti car along with interest of 16.5% per annum. Respondent no. 2 and predecessor of respondent no. 3 and 4 namely Mahinder Singh stood as guarantor. That Borrower executed a letter of hypothecation, promissory note, letter of wavier letter accepting the fixation of installment and letter authorizing the bank for other deduction. Guaranty deeds were also executed by the guarantors. Borrower did not keep his account regular, which forced the bank to file the arbitration petition u/s 70/72 of J&K Coop Societies Act for passing an award to the tune of Rs. 4, 39,755/- calculated up to 30-11-2003. 5. Borrower appeared and guarantor Mahinder Singh died and his legal heir were brought on record. They did not appear before court below and on 12-7-2008; they were set ex-parte. Raj Kumar borrower in his objections stated that, he was never member of society and he never obtained loan. 4, 39,755/- calculated up to 30-11-2003. 5. Borrower appeared and guarantor Mahinder Singh died and his legal heir were brought on record. They did not appear before court below and on 12-7-2008; they were set ex-parte. Raj Kumar borrower in his objections stated that, he was never member of society and he never obtained loan. Borrower further stated in objections that, had he obtained loan then bank must have endorsed on RC of vehicle, lien as hire purchase. That bank has not disclosed chassis no. or engine no. or Registration number of vehicle. That if, bank would have financed the car as alleged, and then bank should have kept all particulars of vehicle. 6. Court below after hearing the parties passed the impugned order concluding para reads as under:- "This court is satisfied with the arguments of the respondent. The petitioner bank must know the Engine No./Chassis no./Registration No. of the vehicle. No such documentary evidence has been furnished by the Bank with the petition. In order to secure the loan amount, the bank must have maintained the record of all the important particulars of the vehicle, which other wise is a must in the advancement of loan for transport. The insurance policy of the vehicles which are financed by the Banks also make a mention of the hypothecation which in the instant case is missing. 7. The petition is therefore, disposed of with the direction to the petitioner Bank to hold an enquiry in the conduct of the officers/officials of branch New Plot responsible for advancement of the loan in departure of the normal procedure. The inquiry as such shall fix the responsibility of the concerned officials for their official oblivion and accordingly the amount held under the petition along with the interest as on date shall be recovered from the salary of the concerned officials/officers to the extent of their negligence and responsibility 8. The file be consigned to records after due compilation. Announced Registrar 11/4/2009 Cooperative Societies J&K, Jammu 9. Bare perusal of this order, I am of the opinion that court below has truncated the proceedings without deciding the real controversy between the parties. Borrower has averred in objection that, he has not obtained loan but no evidence with this regard has been called by court below. Announced Registrar 11/4/2009 Cooperative Societies J&K, Jammu 9. Bare perusal of this order, I am of the opinion that court below has truncated the proceedings without deciding the real controversy between the parties. Borrower has averred in objection that, he has not obtained loan but no evidence with this regard has been called by court below. The petitioner bank has annexed before the court below, documents like sanction letter, letter of hypothecation, promissory notes and deeds of guarantees, from which it can be inferred that, Raj Kumar Borrower obtained loan. There are also cheques issued by borrower in favour of bank, which were later on dishonored. These cheques are of J&K Bank Ltd. Residence Road Srinagar. For deciding real controversy, Court below should have asked the borrower to produce evidence for rebutting these facts. There are also other documents in file on which borrower has put his signature. 10. A bald statement or defense taken in written objection by barrower does not amount to denial of allegation narrated in plaint, it amount to evasive denial. Every allegation of fact in plaint, if not denied specifically or by necessary implication, amounts to admission of facts narrated in plaint. 11. In present case huge money is outstanding against the borrower as alleged in petition and he cannot escape from liability by making blunt plea that, he has not obtained the loan. For deciding this controversy, court below should have invited parties to lead evidence. Money lying in the bank is public money; no one is entitled to swallow the money by making a statement that he has not obtained. Negligence on the part of bank employee in not knowing engine no. /chassis no. /RC number does not give any advantage to borrower that he has not obtained the loan. 12. In view of what has been discussed above, this revision petition is accepted and impugned order is set aside. Matter is remanded back to Registrar Cooperative Societies J&K, Jammu for deciding afresh after giving sufficient opportunities to parties. Parties may lead any evidence in support of their claim. However bank can proceed with regard to enquiry against officer/s, who committed departure of norms in not marking lien in R/C of vehicle and not endorsing chassis no. and engine no. in bank record. Parties are directed to appear the court below on 1.3.2012.