State Bank Of India vs S.S. Plyboard Udyog And Others
1990 Latest Caselaw 78 Del

JUDGMENT

Smt. Sunanda Bhandare, J.

1. This is a suit for recovery of Rs. 2,74,840.14 by the plaintiff-bank under Order 34 of the Code of Civil Procedure in respect of the financial assistance granted to defendant No. 1, S. S. Plyboard Udyog, of which defendants Nos. 2 to 5 are partners. Defendants Nos. 6 and 7 are guarantors for defendants Nos. 1 to 5 for the repayment of the principal loan plus the interest accrued thereon. Apart from other securities and guarantee agreements executed by defendants Nos. 1 to 5, defendants Nos. 2, 3 and 4 executed a memorandum of deposit of title deeds dated April 19, 1985, of their property admeasuring 1,008 sq. yds out of Khasra No. 73/22 and 73/19 situated in the area and revenue estate of village Mundka, Delhi. Similarly, defendant No. 6 also executed a memorandum of deposit in Form "A" of the title deeds of his property bearing Khasra No. 73/22 and 73/19 in village Mundka, Delhi, creating an equitable mortgage in favor of the plaintiff-bank. Defendant No. 7 executed a personal guarantee, vide his letter dated September 12, 1986, to the tune of Rs. 5,33,000.

2. Since the defendants failed to pay the dues of the plaintiff-bank and liquidate the liability, the plaintiff-bank filed the present suit.

3. The suit was registered on May 9, 1988, and, on the same day, summons was issued to the defendants for October 3, 1988. The defendants, however, did not appear on October 3, 1988, and, on that date itself, they were proceeded against ex parte and the suit was listed for ex parte evidence for January 11, 1989. When the case came up before the court, on January 11, 1989, for trial, a request was made by counsel for the defendants that the defendants be permitted to file an application for setting aside the order dated October 3, 1988, proceeding ex parte against them. Defendant No. 7 who was also present in court further stated that he was willing to make the payment of the entire amount claimed by the plaintiff-bank and prayed that pendente lite interest and costs be waived. He further stated that he had held certain compromise talks with the field manager of the plaintiff-bank for the payment of the amount claimed. The plaintiff, however, refused to accept the principal amount and insisted that even the pendente lite interest and costs be paid forthwith. The case was then adjourned for the defendants to make a formal application for setting aside the ex parte order and for putting on record the conversation between the defendants and the officer of the plaintiff-bank. The case was adjourned time and again. Thereafter, defendant No. 7 insisted that he would pay the suit amount provided the plaintiff returned the title deeds of the mortgaged property. In fact, a pay order for Rs. 2,74,840.14 drawn in favor of the plaintiff-bank was brought by defendant No. 7 to court on April 6, 1989.

4. The plaintiff, however, denied that the title deeds can be returned to the defendants. It was submitted by learned counsel for the plaintiff that the plaintiff bank was entitled to retain the title deeds because of some other suit filed by the plaintiff against some of the defendants. The defendant, however, denied that the title deeds were the subject-matter of any other suit. The plaintiff was, therefore, directed to file an affidavit giving the particulars of the suit in which the title deeds were required to be retained by the plaintiff.

5. The case got adjourned for that purpose time and again. Ultimately, the affidavit was filed by the plaintiff on February 13, 1990. From the affidavit, it became evident that the title deeds given by the defendants were not required by the plaintiff in any other suit.

6. In the above circumstances, the suit has been listed today for final disposal. In my view, since the defendants have admitted the claim of the plaintiff, the plaintiff is entitled to a decree for the sum claimed in the suit. However, since defendant No. 7 who is a guarantor offered to repay the amount on the first day he appeared and in fact, a pay order was brought to court on April 6, 1989, the plaintiff is entitled to pendente lite interest only up to April 6, 1989. In my view, pendente lite interest at 12% per annum will serve the ends of justice.

7. Accordingly, a decree is passed in favor of the plaintiff and against the defendants for a sum of Rs. 2,74,840.14 with costs and interest at 12% per annum from the date of the filing of the suit till April 6, 1989.

8. Learned counsel for the plaintiff has given the calculations. A statement of accounts has been shown and it appears that though the amount of court fee has been shown in the statement of accounts maintained in ledger No. 1/1/101, while calculating the suit amount, the plaintiff-bank had not taken the amount of court fee into account. The plaintiff has thus claimed Rs. 2,74,840.14 plus court fee of Rs. 5,028 and Rs. 32,988 towards interest at 12% per annum from the date of filing of the suit till April 6, 1989. Since the amount claimed by the plaintiff has been admitted by the defendants, the suit is being disposed of at the initial stage itself before the filing of the written statement. The plaintiff is entitled to Rs. 5,000 as costs. Thus, the total amount claimed by the plaintiff comes to Rs. 3,17,850.14.

9. Learned counsel for the defendants has handed over a pay order bearing No. 107365 dated February 14, 1990, for Rs. 3,12,190 issued by Canara Bank, Paharganj Branch, New Delhi, to counsel for the plaintiff in court today. This amount has been paid by defendant No. 7 from the account of Khattar Enterprises of which defendant No. 7 is the managing director. Further, a sum of Rs. 5,666.14 is paid in cash to learned counsel for the plaintiff in court by counsel for the defendants.

10. Since the whole of the decretal amount has been paid along with interest and costs, the original title deeds of the mortgaged properties bearing Khasra No. 73/22, 73/19 situated in the area and revenue estate of village Mundka, Delhi, measuring 1088 sq. yds. and the land measuring 900 sq. yds. out of Khasra No. 73/22 and 76/2 situated in the area and revenue estate of village Mundka, Delhi, have been handed over to learned counsel for the defendants in court today. Since the decree has been satisfied, the properties are released from mortgage of the plaintiff-bank. File be consigned to record room.