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2013 DIGILAW 1036 (HP)

Anil Kumar Chowdhary v. United Commercial Bank

2013-12-19

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. This regular second appeal stands filed under Section 100 of the Code of Civil Procedure. Concurrent findings of fact are challenged by defendant No. 1 (appellant herein). 2. M/s United Commercial Bank filed a suit for recovery for a sum of Rs. 1,81,650/- along with interest against Sh. Anil Kumar Chowdhary (defendant No.1), Sh. Devi Saran Chowdhary (defendant No. 2)- now represented by his wife and Sh. C. L. Joshi (defendant No. 3). Defendants No. 1 and 2 got a vehicle financed from the plaintiff-Bank. Defendant No. 3 stood as a guarantor with respect to the loan amount. They failed to adhere to the repayment schedule, hence were called upon to settle the account and make good the payment. Failure to do so only prompted the bank to file the suit. 3. Defendants filed written statements taking separate defences. Defendant No. 1 challenged the locus of the Bank to file the suit. According to him, loan was taken by defendants No. 2 and 3 who acted in collusion with each other and only used his name without his authority. 4. Based on the pleadings of parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled for recovery of Rs. 1,81,650.15 along with future interest @ 12% (12.5%) per annum with quarterly rests from the date of institution of the suit till recovery of the amount in question? OPP 2. Whether the suit of the plaintiff is not maintainable? OPD 3. Whether the plaintiff is estopped from filing the present suit by his own acts, deeds and conduct? OPD 4. Whether the suit of the plaintiff is barred by limitation? OPD 5. Whether the suit of the plaintiff is bad for mis-joinder of necessary parties? OPD 6. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Relief. 5. Appreciating the material placed on record by the parties, vide judgment and decree dated 30.9.2010, passed in Civil Suit No. 53-1 of 09/1991, titled as United Commercial Bank v. Anil Kumar Chowdhary & others, trial Court decreed the suit in the following terms:- "In view of the discussion made above while discussing the aforementioned issues for determination, suit filed by the plaintiff succeeds and is hereby decreed with costs against defendant No. 1 too for the recovery of Rs. 1,81,650.15 i.e. the principle amount along with interest @ 12.5% per annum with quarterly rests calculated up till 18.10.1986, with future interest at the same rate till liquidation of the entire amount. Decree sheet be prepared accordingly." 6. Findings of fact, judgment and decree stands affirmed by the lower appellate Court in terms of its judgment and decree dated 16.6.2012, passed in Civil Appeal No. 80-S/13 of 2010, titled as Anil Kumar Chowdhary v. United Commercial Bank & others. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no question of law, much less substantial question of law arises for consideration in the present appeal. 8. Noticeably, parties have been litigating since the year 1986 and all litigation's must come to an end at some stage, more so, when no case for interference is made out. 9. The present appeal stands filed by defendant No.1, according to whom no documents were executed by him. Now significantly, the Courts below have considered the material placed on record by the parties to return contrary findings. Plaintiff through its witnesses Sh. Rakesh Sharma (PW-1) and Sh. Shyam Sunder (PW-2) have established and proved on record execution of agreement (Ext. PW-1/A). Appellant has signed the same. Not only that, balance confirmation letter (Ext. PW-1/C) also stands proved on record. The amount of loan was disbursed much prior to date of filing of the suit in the year 1986. At no point in time did defendant No. 1, ever raise any dispute about non execution of the agreement, its contents, or the purported fraud played by defendants No. 2 and 3 upon him. The onus to prove fraud, if any, was upon him which burden he has miserably failed to discharge. His oral testimony as DW-1, in no manner, helps him. His simple denial of non execution of documents proved on record by the Bank, does not lead him anywhere. Legal heir of defendant No. 2 Smt. Kamla Chaudhary was married to Sh. V.P. Chaudhary who is his maternal uncle. Significantly, appellant also had a bank account with the plaintiff-Bank. Thus plea of fraud appears to be an after thought if not false. The lower appellate Court has taken into account report of the hand-writing expert upon which much reliance is placed by the appellant. V.P. Chaudhary who is his maternal uncle. Significantly, appellant also had a bank account with the plaintiff-Bank. Thus plea of fraud appears to be an after thought if not false. The lower appellate Court has taken into account report of the hand-writing expert upon which much reliance is placed by the appellant. Para- 21 of the judgment squarely deals with this aspect and I find no reason to differ with such findings. 10. The question of limitation raised by the appellant is also legally unsustainable. Letter of confirmation of balance amount stands issued by the defendants and the suit is filed within a period of limitation from the date of such confirmation. 11. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgments rendered by the Courts below are based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same are perverse/erroneous/illegal which has resulted into miscarriage of justice. Pending applications, if any, also stand disposed of accordingly.