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2015 DIGILAW 560 (GAU)

UCO Bank v. Choudhury Rice Mill

2015-05-13

N.CHAUDHURY

body2015
ORDER : UCO Bank as appellant has preferred this appeal challenging decree of dismissal passed by the learned Civil Judge, Senior Division , Hailakandi on 18.6.2004 in Title Suit No. 37 of 1999. 2. The Regional office of the UCO Bank (shown as United Commercial Bank, Silchar) instituted Title Suit No.37 of 1999 in the court of the learned Civil Judge at Hailakandi stating that on receipt of application for loan from defendant No. 1, M/S Choudhury Rice Mills owned by Md. Abdul Rahim Choudhury for loan of Rs.2,21,000/, the plaintiff bank agreed to sanction Rs.1,93,000/- on condition to produce suitable financially sound guarantor undertaking to repay the loan money subject to terms and conditions. Accordingly, an agreement was executed by defendant No. 1 with the plaintiff relating to term loan on 12.10.1989 and a deed of hypothetication of plant and machinery was also executed on the same date to secure the loan. The defendant No. 1 executed receipt documents in favour of the plaintiff. Defendant No. 2 being a guarantor also executed necessary documents. The aforesaid loan was supposed to be repaid on monthly installments within 7 years with a moratorium of six months and the equated money installments were Rs.2680/- and the last installment was Rs.2720/-. But defendant No. 1 violated the terms and conditions in regard to payment of installment. He paid some money as per his convenience which was duly adjusted against loan amount with interest but the repayment was so negligible that balance continued increasing day by day despite undertakings to liquidate the loan. The defendants ultimately failed to honour the commitment and under such circumstances, bank issued notice through pleader on 3.3.1998 demanding Rs.4,31,631.54 on or before 31st March, 1998. Upon receipt of the notice, the defendants replied that he deposited Rs.10,000/- and Rs.3,000/- on 16.3.1998 and 29.4.1998 respectively with the plaintiff bank and requested the bank to allow him to pay total sum of Rs.2,00,000/- against the whole amount alongwith interest. As the same was not in keeping with the norms of the bank , the bank could not accede to the request and as such filing of the suit became necessary. The suit was accordingly filed on 23.9.1999 praying for a preliminary decree against the defendants for Rs.5,16,761.14/- along with pendentalite interest @ 15.05 % per annum and for a final decree thereafter if defendants failed to make payment of the amount. The suit was accordingly filed on 23.9.1999 praying for a preliminary decree against the defendants for Rs.5,16,761.14/- along with pendentalite interest @ 15.05 % per annum and for a final decree thereafter if defendants failed to make payment of the amount. A final decree was prayed for sale of mortgaged property described in the schedule to the plaint. However, in the body of the plaint there was no recital to the effect that the defendant No.1 made mortgage of any immovable property by deposit of title deed or otherwise. 2. Upon receipt of summon, the defendants submitted a joint written statement denying the averments made in the plaint and denied all the statements in entirety. However, defendants stated that on 29.6.1969 defendant No. 1 prayed for loan of Rs.2, 21, 000/- in respect of installment of rice mill known as M/S Choudhury Rice Mills and accordingly, plaintiff bank sanctioned Rs.1,93,000/- in favour of defendant No. on 28.8.1989 for which defendant No. 2 stood guarantor. But, the Government delayed issuance of license from 19.10.1989 to 7.8.1993 but for which the mill could not start functioning. The department of supply under the Government initiated proceeding against defendant No.1 under the Essential Commodities Act in which defendant No.1 was ultimately discharged on 4.1.1994. It is under such circumstances defendant No.1 requested the plaintiff bank to exempt him from the payment of interest for the period from 19.10.1989 to 7.8.1993. The defendants also requested the bank to provide him with working capital which the bank did not comply and so the very purpose for which the loan was prayed for did not materialize. The bank permitted moratorium only for a period of 6 months. The defendant No. 1 further asserted that he did not commit default in repayment of loan money and the defendant No.2 also discharged his duties properly in this regard. The defendant No. 1 claimed to have paid Rs.1,35,551/- on different dates to the plaintiff and requested to close the accounts offering to pay of Rs.2 lakhs in all. It is to be noted that in this written statement, the defendants specifically raised objection as to limitation not only in para-6 but also in the factual part of the written statement. With these averments, defendants prayed that the suit be dismissed with cost. 3. It is to be noted that in this written statement, the defendants specifically raised objection as to limitation not only in para-6 but also in the factual part of the written statement. With these averments, defendants prayed that the suit be dismissed with cost. 3. Upon such rival contention of the parties, the trial court framed as many as six issues which are as follows: (1) Is there any cause of action? (2) Is the suit maintainable in law and on facts? (3) Is the suit is barred by limitation? (4) Is the suit bad for misjoinder and non joinder of parties? (5) Whether the plaintiff is entitled to get a decree for recovery of Rs.516761.14 from the defendants with pendentilite interest @ Rs.15.5.% p.a.? (6) to what relief, the parties are entitled ? 4. In course of trial, plaintiff examined one witness, Monish Sikdar, Branch Manager, UCO Bank, Krishnapur as sole witness. The examination-in-chief was submitted in the form of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure wherein a number of documents were mentioned. In his examination –in-chief, the loan application was exhibited as Exhibit-1, sanction letter as Exhibit-2, loan agreement as Exhbiit-3 and the deed of hypothetication as Exhibit-4. Although it was not mentioned in the plaint that defendant No.1 made equitable mortgage of any immovable property but in examination-in-chief, PW deposed that by Exhbiti-5 the defendants created an equitable mortgage. In the record however, a title deed is found marked as Exhibit-6 whereas a certificate by the Manager of the bank is marked as Exhibit-5 alleging that the title deed has been received from the defendant No. 1. In fact there is nothing on record to hold that defendant No.1 deposited any title deed for creating mortgage of any immovable property. PW-1 further stated that in page-4 of the examination-in-chief, Exhibits-14 to 23 are acknowledgement receipt as to balance confirmation by defendant No.1 in which Exhibits No.14(a) to 23(a) are the signatures of defendant No.1. Exhibit-14 is actually a letter written to defendant No.1 by the Manager asking for repayment and it is not balance confirmation letter. Exhibit-14 is a letter of balance confirmation allegedly made by defendant No.1 on 3.1.1990. Exhibits- 16 and 17 do not contain any date. Exhibit-18 is the balance confirmation dated 10.10.1990. Exhibit-14 is actually a letter written to defendant No.1 by the Manager asking for repayment and it is not balance confirmation letter. Exhibit-14 is a letter of balance confirmation allegedly made by defendant No.1 on 3.1.1990. Exhibits- 16 and 17 do not contain any date. Exhibit-18 is the balance confirmation dated 10.10.1990. Exhibit-19 is the balance confirmation dated 8.1.1991, Exhbit-20 is of 27.9.1991, Exhibit-21 is of 30.3.1992, Exhibit-22 is of 25.9.1992 and Exhibit- 23 is dated 23.7.1994. Although a balance confirmation dated 23.9.1996 has been placed on record and marked as Exhibit-24 but there is no statement in regard there to in examination-in-chief. Rather in the examination –in-chief Exhbit-24 is described to be a letter dated 5.6.1998 in regard to statement of loan. Actually, letter dated 5.6.1998 has been marked as Exhbit-25 in the record. So, although a balance confirmation dated 23.9.1996 is on record it has neither been exhibited nor has the statements been made in the 5. The defendant No. 1 examined himself as DW-1 and he also exhibited as many as 15 documents on his behalf. 6. After consideration of these materials on record and after hearing the learned counsel for the parties, the learned trial court by its judgment and decree dated 18.6.2004 dismissed the suit in entirety. The learned trial court held that there is no cause of action of the plaintiff and the suit is also not maintainable in the present form because of mis-joinder of cause of action. Coming to issue No.3, learned trial court held the suit is barred by limitation as the last date of mutual transaction was on 23.9.1996 and the suit having been filed in the year 1999, the same was barred by limitation. It appears that Exhibit-24 was wrongly construed to be exhibit-25 by the learned trial court thereby. Upon such finding, the other issues namely, Issue Nos. 4, 5 and 6 were also decided against the plaintiff and consequently, the suit of the plaintiff was dismissed. It is this judgment which has been brought under challenge in the present appeal. 7. I have heard Mr. PC Goswami, learned counsel for the appellant and Mr. AB Choudhury, learned senior counsel assisted by Mr. MA Choudhury for the respondents. I have perused the deposition of the parties and the exhibits adduced by them apart from pleadings of the parties. 8. Mr. 7. I have heard Mr. PC Goswami, learned counsel for the appellant and Mr. AB Choudhury, learned senior counsel assisted by Mr. MA Choudhury for the respondents. I have perused the deposition of the parties and the exhibits adduced by them apart from pleadings of the parties. 8. Mr. PC Goswami, learned counsel for the appellant would argue that plaintiff having been filed the suit for realization of money in the title suit with further prayer for passing a final decree for sale of mortgage property if the plaintiff fails to comply with the preliminary decree, the learned trial court committed error not only in holding that the suit is devoid of cause of action and not maintainable but also in holding the same barred by limitation. According to the learned counsel Article 62 of the Limitation Act would govern the case and so suit having been filed within the period of 12 years , the same ought to have been held as not barred by limitation. The learned counsel has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Chandrdhar Goswami vs. Gauhati Bank Ltd. reported in AIR 1967 SC 1058 to argue that suit in question is covered by Article 62 of the Limitation Act, 1963. 9. Per contra, Mr. AB Choudhury, learned senior counsel would argue that even if the suit is held to be maintainable and not barred by limitation in that event also the plaintiff suit cannot succeed because the plaintiff failed to prove its case by producing cogent evidence. Exhbit-26 which has been presented in the record were not certified by bank authority as required under section of 4 of the Banker Books of Evidence Act, 1891 and so the suit of the plaintiff has rightly been dismissed by the learned trial court. Coming to the question of limitation, Mr. Choudhury would argue that it is a suit for release of money and so this part of the claim cannot come under Article 62 of the limitation Act and thus the very first prayer for preliminary decree is barred by limitation. Once the preliminary decree is found to be not maintainable being barred by limitation, the question of final decree does not arise and so trial court has not committed any error in holding that the suit is barred by limitation. 10. I have gone through the plaint. Once the preliminary decree is found to be not maintainable being barred by limitation, the question of final decree does not arise and so trial court has not committed any error in holding that the suit is barred by limitation. 10. I have gone through the plaint. In the plaint, the petitioner has made a prayer for preliminary decree against the defendants for payment of Rs. 5,16,761.14/- along with interest @ 15.05 % per annum. This is out and out a prayer for getting money decree and so it cannot be governed under Article 62 of the limitation Act. A prayer, however, has been made that in the case defendants fail to make payment of the decretal amount mentioned in preliminary decree in that event plaintiff may be permitted to apply for final decree for sale of mortgage property. As pointed out above, plaintiff has miserably failed to bring necessary documents on records to show that defendants presented any title deed for creating mortgage by deposit of title deed. Title deed has been brought on record but there is nothing to show that this deed was handed over by defendant No.1 to the plaintiff expressly intending to create mortgage of property by deposit of title deed or otherwise. The plaintiff has neither pleaded that there was a mortgage nor did the plaintiff produce any document to show that defendant created mortgage by deposit of title deed. Even if such documents would have been produced, the same perhaps could not have been considered for lack of appropriate pleadings. This is because no amount of evidence can be taken into consideration which is beyond pleading. In the case in hand, there being no definite pleading as to mortgage created by defendant no. 1 in respect of any mortgaged property , the title deed produced by plaintiff on record as exhibit-6 cannot be taken into consideration to presume that there was mortgage by deposit of title deed. Once mortgage is not established, applicability of Article 62 of the limitation Act also would be out of question. Exhbit-24 is also beyond pleading and so this cannot be taken into consideration for the purpose of deciding mutual transaction between the parties. Having so noticed, the findings of the learned trial court that the suit of the plaintiff is barred by limitation cannot be interfered with. The finding in respect of issue no. Exhbit-24 is also beyond pleading and so this cannot be taken into consideration for the purpose of deciding mutual transaction between the parties. Having so noticed, the findings of the learned trial court that the suit of the plaintiff is barred by limitation cannot be interfered with. The finding in respect of issue no. 3 is accordingly upheld. 11. Coming to the merit of the case, plaintiff has not produced duly certified copy of the books of accounts as is required under Section 4 of the Banker Books of Evidence Act, 1891. Some uncertified copies were placed on record and the same has been marked as Exhibit-26. Merely marking of a document as exhibit would not elevate its status to that of evidence unless the same is produced in accordance with law. The suit was instituted in the year 1999 and 16 years have elapsed thereafter. So there is no question of applying the principle of Section 30 of the Code of Civil Procedure at this stage for giving an opportunity to the bank for making amend for the mistake committed in course of trial. This would amount to injustice to the defendants and so the findings of the learned trial court that exhibit-26 is not admissible in evidence also cannot be interfered with. This being the position, the basic claim of the plaintiff has remained unestablished. The appeal does not deserve to be allowed. 12. Considering the entirety of circumstance, the first appeal stands dismissed. 13. No order as to cost. Send down the records immediately after framing of decree.