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2016 DIGILAW 738 (ORI)

Banbehari Pradhan v. United Bank of India

2016-09-01

D.DASH

body2016
JUDGMENT The unsuccessful defendants have filed this appeal challenging the judgment and preliminary decree passed by the learned Additional Civil Judge ( Sr. Division), Puri in T.M.S. No.50/311 of 1996/92.The suit filed by the respondent as the plaintiff (Bank) for realization of Rs.8,73,635.75 with interest pendentelite and future at the contractual rate having been preliminarily decreed directing the defendants to pay the same within three months and in the event of failure for sale mortgaged property described in the schedule of the plaint with further direction as contained therein, the same has been called in question. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 3. The plaintiffs case is that, being a Nationalized Bank on the request of defendant No.1 for extension of financial assistance for establishment of a Ice Factory at Astarang, with prior required sanction, it had advanced SSI term loan of Rs.2,25,000/-.The loan being duly sanctioned on 04.09.1985, the loan amount is said to have been disbursed on 25.09.1985 after execution of demand promissory note for Rs.2,25,000/-in favour of the plaintiff bank. It is stated that defendant No.1 created equitable mortgage of land and factory building in favour of the plaintiff and so also had hypothecated the plant and machinery in favour of the plaintiff-bank on 25.09.1985, ensuring payment of said loan dues by depositing the title deeds. The defendant No.2 and 3 are guarantors and they had executed necessary deeds of guarantee on that very day. It is also the case of the plaintiff that defendant No.1 has executed a deed of hypothecation of debts and movable assets. It is the case that defendant No.1 had further executed a deed of hypothecation of goods and stock. The defendant No.1 having taken the loan and utilized it in the business sought for further financial assistance which had been allowed from time to time. The term loan ultimately stood enhanced at Rs.5,14,201.35.So another demand promissory note had been executed followed by a letter of continuing, letter of lien, deeds of hypothecation on 26.10.1989. The equitable mortgage was extended for the purpose covering the loan as it stood enhanced. The term loan ultimately stood enhanced at Rs.5,14,201.35.So another demand promissory note had been executed followed by a letter of continuing, letter of lien, deeds of hypothecation on 26.10.1989. The equitable mortgage was extended for the purpose covering the loan as it stood enhanced. However, when the plaintif did not repay the loan amount in accordance with the terms and conditions stipulated for the same despite several demands, the plaintiff having issued further notice finally filed the suit claiming the reliefs of recovery of the outstanding loan dues and sale of the mortgaged property etc. The defendant No.2 and 3 accordingly executed the deeds of guarantee on 26.10.1989. I have heard the learned Counsel for the appellants as well as the respondents at length and have perused the judgment of the trial Court as also the pleadings and have gone through the evidence both oral and documentary. 4. The defendant No.1 and 2 contested the suit by filing the written statement. It is stated that the defendant No.3 was initially the owner of the Ice Factory and he transferred the factory to defendant No.1 for consideration of Rs.75,000/- in order to clear his outstanding loan dues. It is next stated that defendant No.3 after selling the factory proposed before defendant No.1 to take loan from the Bank for renovation of the factory and told him that he would be making all necessary arrangement through the Bank officials who were known to them for the purpose. It is next stated that the defendant No.1 and 3 after discussion on few occasions with the manager of the said Bank, when had gone again, the manager asked them to sign on some blank papers and in good faith; the defendant No.1 had done so. It is also stated that manager requested the defendant No.1 to come after a week for release of the loan amount of Rs.1 lakh in his favour. However, thereafter the defendant Nol.1 though had gone many a times, he had to return empty handed simply hearing the sweet words of the Manager of the plaintiff’s-Bank that it had not been materialized with hollowed assurance that it would be so done soon. However, thereafter the defendant Nol.1 though had gone many a times, he had to return empty handed simply hearing the sweet words of the Manager of the plaintiff’s-Bank that it had not been materialized with hollowed assurance that it would be so done soon. Thus, it is stated that defendant No.1 had never availed any such loan facility nor was even so advanced and paid with any money by the plaintiff-bank and all the documents executed for the purpose are attacked to have been tainted with fraud taking advantage of the simplicity of the defendants in signing on dotted lines in good faith and believing the words of the Manager. 5. Faced with above rival pleadings, the trial Court framed eight issues. Going to answer crucial issue Nos. 4, 5 and 6 as regards the sanction of the loan, execution of the documents and also importantly the creation of the equitable mortgage as has been averred in the plaint, upon examining all those documents admitted in evidence and marked as Ext. 1 to 34 and upon discussion of each of them, the claim as put forth in the plaint has been accepted in toto which has ultimately led the trial Court to decree the suit as aforesaid. The trial Court has discarded the defence as projected to thwart the claim of the plaintiff. The blank paper theory as set up by the defendants has been negated. It may be stated here that, when in the particular case, the plaintiff-bank has examined three witnesses on their behalf and proved the series of documents in support of their case the defendant No.1 and 2 themselves have come to the witness box and tendered their evidence. However, they have not proved any document. Here the defendants when bank upon blank paper theory to thwart the claim of plaintiff bank, there remains merely the bald denial by them. Their evidence even do not go to show any such circumstances so as to raise any suspicion over the documents proved by the plaintiff-bank. Thus said evidence are insufficient to hold that the burden of proof lying upon them to establish the said theory has been so discharged. Their evidence even do not go to show any such circumstances so as to raise any suspicion over the documents proved by the plaintiff-bank. Thus said evidence are insufficient to hold that the burden of proof lying upon them to establish the said theory has been so discharged. More so, when the plaintiff has proved all those documents coming from official custody and when absolutely no such suspicious feature even surfaces on their face, I find no justification to come to a conclusion favouring the case of the defendants so as to answer the crucial issues against the plaintiff. The trial Court as is seen having under taken the strenuous exercise of examination of evidence both oral and documentary on record has gone to answer those issues in favour of the plaintiff. Having gone through the evidence, side by side the detail discussion as made as also having independently assessed those, this Court finds all the reasons to accord the seal of approval to said findings in affirming those. The judgment and preliminary decree impugned in this appeal thus are hereby confirmed. 6. Resultantly, the appeal stands dismissed with cost. Appeal dismissed.