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2017 DIGILAW 975 (GAU)

Parbati Devi Malpani v. Punjab & Sind Bank

2017-07-24

AJIT BORTHAKUR

body2017
JUDGMENT : AJIT BORTHAKUR, J. 1. The above two appeals are directed against the judgment, dated 24.02.2006 and decree, dated 28.02.2006, passed by the learned Addl. District Judge, Jorhat, in Money Suit No. 7 of 2004, whereby, it has been held that the plaintiff-respondent bank is entitled to recover a sum of Rs. 6,96,585.55/- from the defendant-appellants with interest @ 15% p.a. from the date of institution of the suit. 2. Heard Mr. T. Islam, Mr. H.L. Maurya. Mr. Debesh Chakraborty and Mr. Jayanta Deka, learned counsel for the appellants and respondents respectively in both the R.F.As. 3. The brief fact of the case is that the Punjab and Sind Bank after processing all formalities sanctioned an amount of Rs. 1,45,000/- to the present appellant/defendant No. 1, Sri Sushil Kumar Mandal for purchasing a Truck with terms and conditions inter alia that said Sri Mandal will pay monthly instalment of Rs. 5000/- towards repayment of the loan amount and also to pay 15% interest, per annum, thereon. Proforma defendant-respondent No. 2, Sri Muktinath Rai and Appellant in R.F.A. No. 83 of 2006, Sri Ramgopal Malpani (since deceased)/defendant No. 3 were the guarantors of the said borrower namely, Sri Sushil Kumar Mandal. After the death of Sri Ramgopal Malpani, his legal heirs represented him. The borrower, Sri Sushil Kumar Mandal agreed on the terms and conditions of the loan amount and purchased TDV (Truck) which remained hypothecated with the respondent/Punjab and Sind Bank under the agreement. When said Sri Sushil Kumar Mandal became irregular in payment of his monthly instalments of Rs. 5000/- against the loan amount, Respondent/Punjab and Sind Bank initially communicated to said borrower to pay his instalments due on the loan amount and ultimately issued a pleader's notice on 22.02.1996 demanding repayment of their entire outstanding amount of Rs. 3,86,758/- as on 23.06.1995 and 15.09.1995, for which said Sri Sushil Kumar Mandal/defendant No. 1 prayed for time for payment. According to the bank, the borrower Sri Sushil Kumar Mandal paid an amount of Rs. 500/- lastly on 24.06.1996. Failing to serve any fruitful purpose by another pleader's notice, dated 22.02.1996, the Bank also served pleader's notice to the borrower on 12.04.1999 asking for repayment of Rs. 5,60,295.55/- as on 22.02.1999. Since the pleader's notices to recover the loan amount could not yield any result, the Bank instituted the instant Money Suit for realisation of Rs. Failing to serve any fruitful purpose by another pleader's notice, dated 22.02.1996, the Bank also served pleader's notice to the borrower on 12.04.1999 asking for repayment of Rs. 5,60,295.55/- as on 22.02.1999. Since the pleader's notices to recover the loan amount could not yield any result, the Bank instituted the instant Money Suit for realisation of Rs. 6,96,585.55/- from the defendant-appellants. 4. The principal defendant /borrower contested the suit by filing a written statement, dated 29.01.2004, but, being filed beyond the prescribed period of limitation of 90 days the same could not be accepted and accordingly, the suit was decreed ex-parte against him vide order, dated 18.11.2003 and for having not contested the suit against defendant No. 2 vide order, dated 05.09.2000. By filing petition No. 38/04, the defendant No. 1 prayed for allowing him to file written statement, but the same was rejected. However he was allowed to cross-examine the plaintiff/appellant. Defendant No. 3 contested the suit by filing a written statement, dated 13.11.2002. 5. The learned Additional District Judge, Jorhat after hearing the learned counsel for the parties and going through the pleadings, framed the following issues, on 08.12.2003: "1. Whether there is cause of action for the suit? 2. Whether the suit is barred by law of limitation? 3. Whether the plaintiff is entitled to a decree against the defendants jointly and severally for recovery of Rs. 6,96,585.55 paise? 4. Whether the suit is maintainable in its present form? 5. Whether the plaintiff is entitled to a decree as prayed for? 6. To what relief/reliefs the parties are entitled to?" After trial, the learned trial Court answered all the issues in favour of the plaintiff bank and came to the conclusion that the plaintiff is entitled to recover a sum of Rs. 6,96,585.55/- from the defendants as aforesaid with interest @ 15% p.a. from the date of institution of the suit. The plaintiff-bank will charge the hypothecated vehicle No. NLM 2405 and put the same to sell for satisfaction of the decreetal amount. If the said vehicle is not enough to satisfy the decreetal amount of the plaintiff, the plaintiff is entitled to recover the balance of the decreetal amount from the defendants jointly and severally. 6. The plaintiff-bank will charge the hypothecated vehicle No. NLM 2405 and put the same to sell for satisfaction of the decreetal amount. If the said vehicle is not enough to satisfy the decreetal amount of the plaintiff, the plaintiff is entitled to recover the balance of the decreetal amount from the defendants jointly and severally. 6. Being aggrieved and dissatisfied with the aforesaid judgment, and decree, Sri Ramgopal Malpani (who is now represented by his legal heirs) and Sri Sushil Kumar Mandal filed the aforesaid two R.F.As., challenging on the grounds, inter alia, that the learned trial Court did not appreciate the evidence on records in their proper perspective and that the evidence of plaintiff's witness failed to support the contents of the exhibited documents including the statement of accounts. Hence, prayed to set aside the impugned judgment and decree. 7. So far the issue Nos. 1, 2 & 4, that is, whether there is cause of action, and whether the suit is barred by law of limitation, and further, whether the suit is maintainable in its present form respectively are concerned, the plaintiff-respondent has contended that he has applied for a loan of Rs. 1,45,000/- vide Ext. 1, dated 19.04.1983, for purchase of a Tata Truck, Model No. 1210, the aforesaid amount was sanctioned vide Ext. 2, dated 18.06.1983 and disbursed the amount on 08.06.1983, vide Ext. 26, the statement of accounts, on executing a D.P. Note, dated 08.06.1983, vide Ext. 3 to repay the loan amount in quarterly instalments with 15% interest and also a Deed of Hypothecation vide Ext. 5. The defendant Nos. 2 and 3 respectively - the respondent Nos. 2 and 3 (Name struck off vide order, dated 20.06.2011 in RFA No. 75/2006) stood guarantors for the said loan vide Exts. 6 and 7. The defendant No. 1 defaulted in payment of instalments after 26.04.1996, despite renewal of the documents by acknowledging debts vide the letter of confirmation and correction and acknowledgments of liability on 03.07.1985 for Rs. 97,135.53 p. as on 30.06.1985 vide Exts. 12 and 13. Also acknowledged liability on 05.01.1999 for Rs. 5,60,296.55/- p. as on 31.12.1998 vide Ext. 14, besides the D.P. Notes, dated 8.6.1983, 7.6.1986, 5.1.1989, 1.1.1992 and 22.08.1994 for Rs. 2,99,575-55/- p. vide Ext. 20 and again on 20.06.1997 for Rs. 4,75,178.55/- p. vide Ext. 24 and on 5.1.1989 for Rs. 97,135.53 p. as on 30.06.1985 vide Exts. 12 and 13. Also acknowledged liability on 05.01.1999 for Rs. 5,60,296.55/- p. as on 31.12.1998 vide Ext. 14, besides the D.P. Notes, dated 8.6.1983, 7.6.1986, 5.1.1989, 1.1.1992 and 22.08.1994 for Rs. 2,99,575-55/- p. vide Ext. 20 and again on 20.06.1997 for Rs. 4,75,178.55/- p. vide Ext. 24 and on 5.1.1989 for Rs. 1,02,596.50/- p. and further, execution of fresh deed of hypothecation of vehicle vide Ext. 19 and agreements etc. However, the defendants more particularly the defendant No. 1 borrower failed to clear the outstanding loan amount and therefore, the plaintiff-respondent served the pleader's notice, dated 12.04.1999 vide Ext. 25 to the defendant-appellants recalling the entire outstanding amount of Rs. 5,60,296.55 p. as on 20.2.1999, but still failed to repay the aforesaid outstanding loan amount. These facts have come in the evidence of the plaintiff-respondent herein namely, P.W. 1 Laxmi Prasad Singh (Since expunged vide order, dated 3.3.2005) and P.W. 2 Nilendra Kumar Prabhat. 8. The defendant-appellants have contended that the plaintiff-respondent's suit is barred by Limitation and even the alleged last payment, dated 26.04.1996, for Rs. 500/- does not save the prescribed period of Limitation. 9. On perusal of the order, dated 3.3.2005, passed by the learned trial Court in Money Suit No. 7/2004 and as contended by the learned counsel for the defendant/appellants herein, on the prayer of the plaintiff-respondent the evidence of P.W. 1, Laxmi Prasad Singh was expunged and instead of him one Nilendra Kumar Prabhat, the then Branch Manager of the plaintiff-respondent's branch at Jorhat was examined and as such, with the expunge of his (Laxmi Prasad Singh) evidence, his entire evidence including the documents exhibited through him stood expunged. This fact has come in Para 13 of the impugned judgment and order. 10. Mr. D. Chakraborty, learned counsel for the plaintiff-respondent bank has emphasised on the reasons rendered in Para Nos. 29, 30, 31 & 32 of the impugned judgment and order which are related to the issue Nos. 1, 2 and 4, that is, on the points of cause of action, Limitation and maintainability of the suit 11. The learned trial Court while holding that the suit is instituted within the prescribed period of Limitation relied on the dates of Ext. 3, the D.P. Note, Exts. 12 and 15 the Balance confirmations, Ext. 17 and 20, the D.P. Notes and Ext. The learned trial Court while holding that the suit is instituted within the prescribed period of Limitation relied on the dates of Ext. 3, the D.P. Note, Exts. 12 and 15 the Balance confirmations, Ext. 17 and 20, the D.P. Notes and Ext. 24 the acknowledgement of Balance Confirmation aforementioned. 12. In Anil Rishi Vs. Gurbaksh Singh, reported in, (2006) 5 SCC 558, the Apex Court held that the elementary rule in Section 101 of the Evidence Act is inflexible and in terms of Section 102, the initial burden of proof is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. Again in the case of, Sayed Muhammed Mashur Kunchi Koyal Thangal Vs. Badagara Jumayath Palli Dharas, reported in, (2004) 7 SCC 708 , the Apex Court held that the plaintiff can only succeed on the strength of its case and not on the weakness found in the case of defendant, if any. 13. On careful scrutiny of the pleadings of the parties, the evidence, oral and documentary, produced by the plaintiff-respondent herein and hearing the learned counsel for both the sides, it appears that the loan was sanctioned by the plaintiff-respondent bank, on 8.6.1983, for an amount of Rs. 1.45 Lacs for purchasing a truck by the defendant No. 1 - Appellant in R.F.A. No. 75/2006. The defendant No. 1 executed a D.P. Note, dated 8.6.1983 vide Ext. 3 for the aforementioned amount for sanction of term loan to him. The second D.P. Note, dated 07.06.1986, vide Ext. 8 was executed for Rs. 97,409.06/- p. and the third D.P. Note was executed on 7.1.1989, vide Ext. 13. All the aforesaid 3 (three) D.P. Notes (Exts. 3, 8 & 13) are of different amounts. The purpose and relevance of execution of such D.P. Notes are absent in the narrations incorporated therein and further, no evidence has been produced by the plaintiff-respondent bank for saving the limitation of the original loan documents vide Exts. 3 to 7. The original loan documents were executed on 08.06.1983 for the term loan payable in monthly instalments. There is no evidence showing extension of the validity of the loan documents as is required under the Limitation Act. 3 to 7. The original loan documents were executed on 08.06.1983 for the term loan payable in monthly instalments. There is no evidence showing extension of the validity of the loan documents as is required under the Limitation Act. The demand note, dated 7.6.1986 vide Ext. 8 is also not in order as it is silent about the provision (s) of the Limitation Act. After perusal of all the relevant exhibited documents produced before the learned trial Court, this Court is convinced that the plaintiff bank-respondent herein has, in fact, lost its right to recover the outstanding loan amount by way of instituting the Money Suit, which is barred by Law of Limitation, being instituted beyond the prescribed period of Limitation of 3 (three) years under Section 19 of the Limitation Act and being a barred debt, the aforesaid acknowledgments of debt does not automatically extend the limitation period as such acknowledgements are not accompanied by a promise to pay with specific reference to the purpose of saving Limitation in connection with the loan sanctioned and disbursed to the defendant No. 1 - appellant. These exhibited documents cannot legally be accepted as link documents without reference to the original particulars of the term loan. The plaintiff-respondent bank has apparently failed to discharge its burden of proof of claim by leading satisfactory evidence and therefore, cannot take the advantage of weakness of the defendants' case. 14. For the reasons, set forth above, the suit being barred by Law of Limitation, the issue No. 2 is answered in the affirmative and consequently the issue Nos. 1, 3, 4 & 5 are decided in the negative. The plaintiff-respondent bank is not entitled to any relief as prayed, while the defendant-appellants' case succeeds. Accordingly the issue No. 6 is answered. 15. The R.F.A. No. 83 of 2006 and R.F.A. No. 75 of 2006 stand allowed. No costs. 16. Send back the LCRs along with a copy of this judgment and order.