Gujarat High Court
State Bank Of India vs Manoj S Bhuptani on 25 April, 2025
NEUTRAL CITATION
C/FA/5317/2019 JUDGMENT DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5317 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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Approved for Reporting No Yes
No
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STATE BANK OF INDIA
Versus
MANOJ S BHUPTANI & ORS.
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Appearance:
MR PRANAV G DESAI(290) for the Appellant
MR MK VAKHARIA(1483) for the Defendant Nos. 1,2,3
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/04/2025
ORAL JUDGMENT
1. The present appeal is filed at the instance of the original plaintiff bank under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and order dated 9 th September, 2019, passed by the learned Judge City Civil Court, Court No. 29, Ahmedabad in Civil Suit No. 1809 of 2005. By the said impugned judgment and order, the learned Judge has rejected the suit of the present appellant - original plaintiff praying for recovery of outstanding dues of sum of Rs.1,90,022/- with running interest at the rate of 13.66% per Page 1 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined annum till the date of its realization.
2. The brief facts as can be gathered from the record are summarized as under :-
2.1 The defendants have approached the appellant bank seeking housing loan for purchase of a residential premises, whereby the relevant documents were furnished as a security.
The appellant bank had granted housing loan of Rs.4,80,000/- on 4th February, 2000. In this regard, the Memorandum of Term Loan Agreement was also executed on 4 th February, 2000, along with which the relevant documents of the subject property were furnished as security, which include allotment letter of the subject property, the original receipts of payment and other relevant documents of the subject property. The respondent no.3 - original defendant no.3 had stood guarantor. As per the terms and conditions of the loan agreement, the monthly installment was fixed of Rs.5,700/- per month, which was to be repaid in 180 months along with interest at the rate of 13.66% per annum with quarterly rest.
2.2 It is the case of the original plaintiff that the defendant had made default in making payment of aforesaid installment as well as the interest accrued and therefore the defendants were approached whereby a revival letter dated 10 th January, 2003 was issued by the defendants. The defendants since did not fulfill their promise, the plaintiff bank was entitled to recover the amount by auction of the subject property. In this regard, a notice dated 26 th April, 2005 was issued by the advocate of the plaintiff bank followed by another notice dated Page 2 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined 29th April, 2005. In this regard, a writ petition was preferred being Special Civil Application no.17979 of 2005 by the original defendant no.1 before this Court.
2.3 By highlighting the aforesaid facts, the original plaintiff has contended before the trial Court that the outstanding amount to be realized from the defendant was to the tune of Rs.1,90,022/- with interest which was to be realized from the date of filing of the suit till its realization. Before the trial Court, the plaintiff bank had produced on record the books of accounts. It was pleaded before the trial Court that as per the relevant entries in the books of accounts, the interest rate applied, the amount of Rs.1,80,580/- was outstanding and additionally interest amount till the date of the suit of Rs.9,442/- was to be realized. Hence, the total amount of Rs.1,90,022/- was to be realized from the defendants.
2.4 Noticing the aforesaid case of the plaintiff, the trial Court had issued summons upon the defendants. The defendants have entered their appearance and have submitted their written statement at Exh.9. The defendants have raised the defence that in fact, the suit is not maintainable as being barred by delay and latches. It was further contended that due to earthquake, the business of the defendant no.1 had suffered and he could not pay the installments to the plaintiff bank at relevant point of time. Thus, the loan account of defendant no.1 was declared as NPA on 3rd March 2003. However, thereafter, a settlement has been arrived at between the parties and as per the terms agreed, the defendants were to pay an amount of Page 3 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined Rs.3,50,000/- towards the full and final settlement to the plaintiff bank. It was further contended that in fact, an amount of Rs.1,00,000/- was already paid to the plaintiff bank by way of cheque and therefore, the proposal of settlement was in fact, acted upon by the plaintiff bank.
2.5 By highlighting the aforesaid facts, the defendants have contended that the suit is required to be dismissed solely on the ground that material facts have been suppressed and therefore, the suit being filed on the false basis and contrary to the facts on record may not be entertained and may be dismissed with exemplary cost.
2.6 Considering the aforesaid pleadings of the respective parties, the trial Court proceeded to frame the issues at Exhibit 19. The issues framed by the trial Court reads as under :
1. Whether the plaintiff proves that the plaintiff is entitled to get Rs.1,90,022/- from the defendants as alleged?
2. Whether the plaintiff proves that the plaintiff is entitled to get interest at the rate of 13.66% p.a. on the aforesaid amount from the defendants as alleged?
3. Whether the plaintiff is entitled to get relief as prayed for?
4. What order and decree ?
2.7 During the course of trial, the plaintiff has led the oral as well as documentary evidence, the details of which are Page 4 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined reproduced in the tabular form as under :
~:: ORAL EVIDENCE ::~ Sr. Description of documents Exh. no.
1 Deposition of Sunil Ramdas Soyam 56 Manager of the plaintiff bank ~:: DOCUMENTARY EVIDENCE ::~ Sr. Description of documents Exh. no. 1 Original agreement of term loan dated 33 03.11.1997 of defendant no.1. 2 Original guarantee agreement executed by the 34 defendant 3 Original Mortgage deed executed by the 35 defendants 4 Original agreement of fresh term loan executed 36 by the defendant. 5 Original guarantee deed 37 6 Original Memorandum of Entry executed by 38 the defendant for suit property. 7 Original letter of allotment. 39 8 Original valuation letter. 40 9 Original copy of the certificate of 41 registration issued by Krupa Owners Association 10 Original Layout plan 42 11 Original copy of Form no.7/12 43 Page 5 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined 12 Original copy of N.A. Permission issued by 44 Collector. 13 Original copy of Construction permission 45
(Rajachitthi) issued by corporation.14 Original copy of revival letter dated 46
10.01.2003.15 Original copy of revival letter dated 47
10.01.2003.
16 Original copy of No Due Certificate issued 60 by the association for suit property.17 Original copy of the letter issued by 61
Vardayini Construction for suit property. 18 Original copy of the receipt for the payment 62 made by the defendants 19 Original copy of the receipt for the payment 63 made by the defendant towards suit property dated 07.02.2000 20 Original copy of the receipt for the payment 64 made by the defendant towards suit property dated 05.11.1997.
21 Original receipt issued by Association for 65 sale consideration on 07.02.2000 22 Original copy of the resolution made by the 66 association 23 Original copy of extracts of the bank 67 account of the defendant.
2.8 After the evidence of the plaintiff was over, the defendants have also examined their witness viz. Manoj S. Bhuptani, defendant no. 1 at Exh.72.
2.9 Apart from the aforesaid oral evidence, the defendants have also led following documentary evidence, the details of which are reproduced in the tabular form as under :Page 6 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025
NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined ~:: DOCUMENTARY EVIDENCE ::~ Sr. Description of documents Exh. no.1 Original copy of the letter issued by the 75
Bank declaring that outstanding of the defendant.
2 Original copy of the letter of settlement issued 76 by the plaintiff Bank 3 Original copy of the letter accepting settlement 77 by the plaintiff bank.4 Original copy of the letter of ICICI Bank 78
regarding stolen of cheque of defendant.
2.10 Upon overall appreciation of the submissions made by learned advocates appearing for the respective parties, in light of the evidence produced on record, the learned Judge has answered the issues framed at Exh.19 against the plaintiff bank and in favour of the defendants, thereby arriving at a conclusion that the plaintiff bank has failed to show or prove the actual amount of outstanding dues receivable from the defendants. The learned Judge has also noted that as per the settlement arrived between the parties, only an amount of Rs.60,000/- had remained outstanding. However, the plaintiff bank has failed to prove that cheque of Rs.60,000/- dated 12 th March, 2005 was dishonoured. Therefore, the learned Judge in absence of any criminal complaint or any proceedings being initiated for default of payment of the cheque amount of Rs.60,000/- has arrived at a conclusion that the plaintiff bank has failed to prove their case of recovery of outstanding dues and has thereby rejected the suit filed by the present Page 7 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined appellant - original plaintiff.
3. Hence, the present appeal at the instance of the appellate bank.
4. This Court upon considering the grounds raised in the appeal and the submissions made, by order dated 15 th November, 2019 had admitted the appeal. The records and proceedings were called for. Pending this appeal, the respondents have preferred an application seeking directions against the appellate bank interalia seeking directions to hand over the original documents of the subject property which were otherwise lying in the custody of the respondent bank and also to issue no due certificate.
5. Upon hearing the learned advocates on record for the respective parties, the co-ordinate Bench vide order dated 6 th April, 2023 considering the offer of bank guarantee against alleged outstanding amount, in order to secure the interest of the appellate bank had accepted the prayer of the respondent. It was directed that upon furnishing of the bank guarantee of Rs.2,50,000/- to the appellate bank and the same being not to be encashed without orders of this Court, pending the appeal, the original documents lying with the appellate bank were to be handed over to the respondent. It was transpired during the course of hearing that the original documents were forming part of the original record proceedings. The learned Judge had therefore directed the Registry to hand over such original documents subject to furnishing of the certified copies of such documents on record and which was to be Page 8 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined placed at appropriate stage in the original record proceedings. The matter was thereafter notified for final hearing on various occasions. Mr. Mehul Vakharia, learned advocate appearing for the respondent had pressed for hearing of the appeal as the subject property was to be redeveloped.
6. The learned advocates appearing for the respective parties are heard at length.
7. Mr. Pranav G. Desai, learned advocate appearing for the appellate bank, at the outset has invited my attention to the extract of statement of the loan account of the original defendant no.1 which is produced on record at Exh.67 to demonstrate that the amount of Rs.1,90,022/- was outstanding to be realized from the defendant no.1 - borrower. The learned Judge committed serious error in not giving due weightage to aforesaid document as the plaintiff bank had successfully proved said document as per provisions of the Banker's Books Evidence Act.
7.1 While referring to various entries, learned advocate had submitted that in fact learned Judge has read Exh.67 as evidence by referring to entry of rs.96,083/- by acknowledging as amount outstanding.
7.2 Learned advocate had fairly pointed-out that though the Court has heavily relied upon the letter dated 25 th September, 2004 produced on record at Exh.76 to arrive at a conclusion that the settlement was arrived between the parties, however, Page 9 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined he had submitted that the learned Judge failed to appreciate the fact that the aforesaid letter was addressed by one company named Hetal Communication who had addressed to the concerned Branch Manager of the appellant bank. He had fairly submitted that the said letter is not in dispute as also been clarified by the witness of the bank in his evidence. However, he has submitted that such letter cannot be construed in the form of One Time Settlement Scheme in absence of any approval from the Head Office. He had further invited my attention to the letter dated 4 th October, 2004 produced on record at Exh.77, wherein the letter was signed across by the concerned Branch Manager addressed to one Mr. M. S. Bhuptani, who had acknowledged the fact of having accepted the offer of payment of Rs.3,51,000/- as full and final payment and further receipt of Rs.1,00,000/- and outstanding dues of an amount of Rs.2,51,000/- which was expected to be realized as early as possible. As against the aforesaid document, learned advocate had submitted that the letter of 10th March, 2005 which is produced on record at Exh.75 goes to suggest that the concerned Branch Manager had acknowledged the fact of clearance of the settlement amount of Rs.3,50,000/- by Mr. Bhuptani. According to learend advocate, even assuming such settlement and acceptance of Rs.2,51,000/-, still an amount of Rs.60,000/- is concerned, the same was subject to clearance of a cheque dated 12 th March, 2005 issued by the defendant no.1. No document worth is produced on record that such remaining cheque amount was realized.
7.3 While referring to the aforesaid documents as against Page 10 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined the statement of account produced on record at Exh.67, learned advocate had submitted that in absence of payment of the entire loan amount, the appellant bank had rightly not issued the No Due Certificate in favour of the defendant no.1. The attention of this Court was invited to the fact that considering the relevant entries in the statement of account, the original plaintiff bank had raised the recovery of an amount of Rs.1,90,022/- to be realized from the defendant and the suit was therefore preferred immediately in the month of October 2005, whereby the interest accrued on such outstanding dues was also prayed for to be realized from the defendants.
7.4 Learned advocate has therefore urged to quash and set aside the impugned judgment and order and to allow the appeal by directing the respondents to pay remaining amount with interest accrued. Alternatively, learned advocate has urged to issue directions for payment of at least undisputed amount of Rs.60,000/- with interest accrued till date, which the bank may be permitted to realize by encashing bank guarantee of Rs.2,50,000/-.
8. Mr. Mehul Vakharia, learned advocate appearing for the respondent has vehemently objected to the aforesaid submissions made by learned advocate for the appellant and has submitted that in fact no outstanding dues remained as on the date of filing of the suit and even thereafter. While inviting my attention to the order dated 6 th April 2023 passed by this Court, learned advocate had submitted that considering the circumstances where the subject property was to be Page 11 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined redeveloped, in order to secure the interest of the bank and noticing the fact that the final adjudication of the appeal may take some time, the offer was made of bank guarantee of Rs.2,50,000/- and accordingly the Court has taken a balanced view whereby the respondent were permitted to take over the original title documents and the bank guarantee of an amount of Rs.2,50,000/- was given in custody of the appellant bank.
8.1 Learned advocate had further submitted that in fact looking to the documents produced on record at Exhs.75 to 77, a clear case of suppression of material facts has been made out. It does not lie in the mouth of the appellant bank to contend that no settlement was arrived upon between the parties. He had further pointed-out that the letter dated 25 th September, 2004 addressed though on the letter-pad of Hetal Communication, the same was addressed by the defendant no.1 being the proprietor of the said firm. He had further submitted that in fact the aforesaid settlement was acted upon as is evident from the contents of the letter dated 4 th October, 2004 (at Exh.77) and 10 th March, 2005 (at Exh.75), which clearly goes to demonstrate that the parties have arrived at a settlement whereby the outstanding dues was determined to the tune of Rs.3,51,000/- which was to be paid towards full and final payment of the loan transaction. He had further pointed-out that the Bank Manager of the concerned branch has acknowledged the fact of receipt of Rs.1,00,000/- and the remaining amount of Rs.2,50,000/- was to be paid at the earliest as is evident from the contents of the letter dated 4 th October, 2004 at Exh.77. He has further pointed-out that thereafter the Bank Manager had also acknowledged the fact Page 12 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined of the clearance of the settlement amount of Rs.3,50,000/- as cheque of an amount of Rs.60,000/- dated 12 th March, 2005 was furnished. Learned advocate for the respondent has also submitted that before the account was declared NPA, an amount of Rs.2,18,534/- has been repaid towards the aforesaid loan transaction of Rs.4,80,000/-. He had fairly pointed-out that though it is referred that such letter was issued subject to clearance of the aforesaid cheque, however, no cogent material has been brought on record to contradict the same, by the plaintiff bank. In such circumstances, no fault can be found with the approach of trial Court to arrive at a conclusion that the plaintiff bank has failed to prove their case not only with regard to the outstanding dues but also with regard to their case of the further amount of Rs.60,000/- to be realized.
8.2 Learned advocate had at this stage invited my attention to the statement Exh.67 which is otherwise produced by the plaintiff bank wherein the entry dated 15 th March, 2005 clearly goes to suggest that the aforesaid remaining amount of Rs.60,000/- has also been realized. Thus, according to him, the total outstanding dues has already been cleared even prior to filing of the suit.
8.3 Learned Advocate had fairly submitted that even assuming for a moment that the aforesaid amount of Rs.60,000/- was outstanding, then the bank guarantee of an amount of Rs.2,50,000/- which is in custody of the bank may be considered and the remaining amount may be refunded to the respondent no.1. He has therefore urged this Court not to Page 13 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined entertain the present appeal.
9. Heard learned advocates appearing for the respective parties and examined their submissions in light of the record and proceedings placed for consideration. Upon overall appreciation of the record indisputably, the original defendant no.1 has availed the housing loan for an amount of Rs.4,80,000/- on 4th February, 2000. At the relevant stage, the original documents in the nature of title deeds of the subject property have been furnished as security and were in custody of the plaintiff bank. The defendant no.3 had stood guarantor and the monthly installment of an amount of Rs.5,700/- was agreed to be repaid in a period of 180 months along with interest at a rate of 13.66% per annum with quarterly rates was agreed upon. Looking to the documents produced on record at Exhs.75 to 77 by the defendants, the defendants have been able to establish their defence that subsequently the parties have entered into settlement whereby the offer made by the defendant no.1 to make repayment of the amount of Rs.3,50,000/- against the full and final payment of the loan transaction has been accepted by the plaintiff bank. The aforesaid settlement was subsequently acted upon as is evident from the two letters produced on record dated 4 th October, 2004 at Exh.77 and 10 th March, 2005 at Exh.75. The close reading of the aforesaid letters clearly demonstrate that against the payment of Rs.3,51,000/- agreed to be paid as full and final amount towards the loan transaction, the plaintiff bank had received an amount of Rs.1,00,000/- and it was agreed to repay the remaining amount of Rs.2,51,000/-, at the earliest. The subsequent letter dated 10 th March, 2005 clearly Page 14 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined goes to suggest that as per their commitment, the amount of Rs.3,50,000/- has been cleared by depositing Cheque no.031901 of a sum of Rs.60,000/- dated 12 th March, 2005. In the said letter, the concerned officer of the plaintiff bank has noted that such clearance of the settlement amount is subject to clearance of the aforesaid cheque. As against that, the entry dated 15th March, 2005 is reflected in the extract of statement which is otherwise produced on record by the plaintiff bank. Thus, as rightly submitted by the learned advocate for the respondent, as on the date of filing of the suit in the month of October, 2005, the remaining amount of Rs.2,51,000/- towards the settlement had also been cleared and there were no outstanding dues to be realized from the respondent.
10. Having appreciated the aforesaid evidence, no error of law or fact can be found with the approach of the trial Court in rejecting the suit of the plaintiff seeking recovery of the alleged outstanding amount of Rs.1,90,022/- from the original defendants. The plaintiff bank has miserably failed before the Trial Court to establish their case of recovery of the aforesaid amount in absence of any evidence. In fact, the Trial Court upon appreciation of the documentary evidence in light of the evidence of the witness of the bank has noticed discrepancies in the claim outstanding amount to be realized from the original defendants. Apt would be to reproduce the relevant findings and reasons assigned by the Trial Court.
"13. When the plaintiff came with a plea that the defendants have failed to repay the Page 15 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined installments of the home loan within the stipulated period then it is the duty of the plaintiff bank to prove this fact by cogent and reliable evidence. As per the present case, the plaintiff Bank came with the case that the defendants have failed to repay the total amount of Rs.1,90,022/- then it is the duty of the plaintiff bank to show the same with cogent and reliable evidence. Now If I go through the oral as well as documentary evidence produced by the plaintiff Bank and as I have discussed above, it is undisputed that the defendant Nos.1 and 2 have availed the home loan of Rs.4,80,000/- by executing different deeds in favour of the plaintiff Bank. Now as far as outstanding amount of Rs.1,90,022/- is concerned, the plaintiff Bank side has cross examined the Manager Sunil Ramdas Soyam at Exhibit 56, and in cross examination, upon showing a letter at Mark 59/2, the said witness has admitted that the said letter was issued by the plaintiff Bank and admitted to have received Rs.1,00,000/- and thereafter, only Rs.2,51,000/- was remained receivable from the defendants. In the cross examination, this witness has also admitted that the defendant has paid Rs.2,90,000/- against the settlement of Rs.3,50,000/- and only Rs.60,000/- was due to be received from the defendant. This witness also admitted that he has not mentioned in his examination in chief about the settlement that took place and this witness also not relied upon the Bank Statement produced at Exhibit - 67 and also admitted that the said statement has been prepared by the bank as per Bank's convenience and also as per the said Page 16 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined statement Rs.96,083/- is reflected to be outstanding. So, as per the deposition of this witness, the suit fled for the amount of Rs.1,90,022/- and in cross examination, it came on record that Rs.96,083/- is remained outstanding.
14. As per the statement produced at Exhibit 67, there is no specific amount remained outstanding by the plaintiff Bank and if I appreciate the statement of the Exhibit 67, it clearly appears that there is no heading or description of credit and debit is reflected in the statement and the amount which has been credited and debited are shown manually and the amount which has been credited in the Home Loan Account, it is not shown by which means i.e. for example by cash or cheque, it has been credited in the account. Furthermore, there is no description of account or account holder's name is mentioned in the heading of the statement. In the Cross examination, the Bank Manager has admitted that it is manual account. Furthermore, the plaintiff Bank been also failed to produced the original account ledger. Merely by producing computerized manual account, is not sufficient enough to prove the outstanding amount against the defendants, when there is a dispute regarding exact outstanding amount between both the parties.
15. Now the present suit as per the defence of the defendant, they have already produced the outstanding due amount to the plaintiff Bank. It is the fundamental rule Page 17 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined that the plaintiff has to prove his case by adducing cogent and reliable evidence. In the present case, the defendants have stated that the settlement took place between both the parties and as per the settlement, the defendant no.1 has to pay Rs.3,50,000/- and by paying that amount, the home loan account would be closed and for that the defendant had handed over the cheque of Rs.1,00,000/- of Union Bank bearing No.623635 dated 25.09.2004. But that letter was produced by the defendant at Exhibit 76, wherein it clearly appears that the compromise / settlement arrived between both the parties Rs.3,50,000/- and copy of the said letter has been produced at Exhibit 76. The officer of the State Bank of India has received that letter on the very same date and the endorsement for that effect was made on that letter. In reply of that letter, the then Manager has issued letter to the present defendant on 04.10.2004 which is produced at Exhibit 77. If I appreciate the letter Exhibit 77, then it is clearly appears that it was addressed to the present defendant no.1 by the plaintif Bank on its letter head, with a contention which are quoted as under:
"With reference to the above, we have to advise that your offer for settlement of remaining amount, we accept your offer for paying Rs.3.51 Lacs as full and final payment. In the above connection, we have received Rs.1.00 lac and now you are requested to repay remaining Amount Rs.2,51,000/- as early as possible to Page 18 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined enable us to sent your proposal to Z.O. A'bad."
16. So, as per the contents of the above referred letter, it clearly prove that both the parties were agreed to make the settlement with an amount of Rs.3,50,000/- as full and final and in that connection, defendant has given a cheque of Rs.1,00,000/- and amount of Rs.2,50,000/- was remained unpaid which was to be paid as early as possible. Now if I peruse the letter produced at Exhibit 75 which is on the letter head of State Bank of India addressed to the defendant no.1 dated 10.03.2005 and contents of the same are quoted hereinbelow:
"With reference to the above, as per your commitment to pay Rs.3.50 Lacs has now been cleared by depositing cheque No.031901 of Rs.60,000/- dtd 12/03/05 (Subject to clearance of cheque)."
So, it appears from the above letter Exhibit
- 75 that as per the commitment of the defendant, the defendant has to pay Rs.3,50,000/- and cheque bearing No.031901 for the amount of Rs.60,000/-
dated 12.03.2005 was given and as soon as cleared the same, the commitment would be considered as cleared and as soon as cheque has been cleared, there is no amount would be remained outstanding for the home loan.
17. Now as I have discussed above, the suit fled for Rs.1,90,022/-, manual statement Page 19 of 21 Uploaded by AMAR RATHOD(HC01074) on Fri May 02 2025 Downloaded on : Sat May 03 12:51:43 IST 2025 NEUTRAL CITATION C/FA/5317/2019 JUDGMENT DATED: 25/04/2025 undefined of Exh.67, shows Rs.96,083/- as outstanding and now letter at Exhibit 76 which shows Rs.60,000/- as outstanding. So, the plaintiff Bank not able to show clear amount of outstanding from the defendants in the present suit. Furthermore, when the plaintiff Bank came with a plea that Rs.1,90,022/- is due but there is no single documentary evidence produced by the plaintiff Bank that there were Rs.1,90,022/- is due and receivable from the defendants. Furthermore, plaintiff Bank has suppressed the material facts before the court that compromise was arrived at between the parties at the relevant time. But in the cross examination of Manager of the plaintiff Bank has admitted the said fact before the Court."
11. For the foregoing reasons, no error of law or fact has been demonstrated by the learned advocate for the appellant, which calls for any interference of this Court in the appeal. Hence, the present appeal fails.
12. At this stage, learned advocate for the respondent has urged this Court to issue appropriate directions to release the bank guarantee, which is furnished pursuant to the order dated 6th April, 2023 passed by this Court in Civil Application (for direction) no.1 of 2022 filed in the captioned appeal.
13. Considering the fact that the appeal has not been entertained, the bank guarantee of an amount of Rs.2,50,000/- lying in the custody of the bank is directed to be handed over to the present respondent.
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14. With these observations, the present appeal stands rejected. R. & P. is directed to be send back to the Court concerned.
Sd/-
(NISHA M. THAKORE, J.) AMAR RATHOD...
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