Punjab & Sind Bank vs Kmt Automobiles
1991 Latest Caselaw 318 Del

JUDGMENT

M.L. Verma, J.

(1) This is a suit filed by the plaintiff U./Order 34, Civil Procedure Code for the recovery of Rs. 2,50,035.50 P together with interest pendente lite and future interest after the date of the decree and costs of the suit. Initially no W/S had been filed and the plaintiff had moved an application U/Order 8 Rule 10 being I.A. 9185/87. However, thereafter W/S was allowed to be filed on payment of Rs. 500.00 as costs. W/S has been filed by deft. 1 & 2. The plaintiff filed 19 documents in all, (Ex. P-1 to P-19).

(2) In the W/S it is alleged that the plaintiff bank had to insure properly bearing No. 22-B, Ganesh Chandra Avenue, Calcutta, and that they failed to do so. The property in question got burnt in a fire on 4.4.1979 and the deft. suffered loss of approximately Rs. 91,176.15 P. However, the deft. has not made any claim for adjustment or set off for the alleged loss owing to the fire. This is obviously because the suit has been filed on 17.12.86 and by that date the claim, if any, on account of the fire had got barred by time.

(3) The plaintiff has now moved the above application U/Order 12 Rule 6 seeking a decree on admissions. One of the objections of the deft. in reply to this application as well as in the W/S is that this Court does not have the territorial jurisdiction to entertain the suit. This objection is obviously untenable because admittedly the mortgaged property is within the jurisdiction of this Court and, therefore, u/S. 16 of the Civil Procedure Code this Court has jurisdiction to entertain the suit.

(4) Mr. Chandhiok has drawn my attention to para. 5 & 6 of the application as well as the reply to the application u/O. 12 R. 6. He has also drawn my attention particularly to para. 2, 4 & 7 of the plaint and the W/S. He points out that the deft. has admitted that the facility of loan was granted by the plaintiff bank to the deft. The creation of the mortgage is also admitted and the deposit of title in respect of mortgage property in Delhi has also been admitted. Mr. Chandhiok also pointed out that firstly the loss suffered, if any, on account of fire on 4.4.1979 has no material bearing on this case and the claim of the Bank. This is because no adjustment has been sought and the claim on that account has got barred by time. He also points out that the bank was not obliged to insure that property, which was the business premises of the deft. since the loan had not been granted against hypothecation of any stocks in the business premises but had been granted against mortgage of immoveable property in Delhi.

(5) Mr. Chandhiok then referred to Ex. P-9 which is a demand promissory note executed on 26.4.1985 for a sum of Rs. 1,87,541.44 P. He submitted that the deft. has admitted the execution of this document whereunder it was agreed to pay interest @ 18% per annum as well as additional interest @ 2.5% per annum in case of default in payment of the amount due. In the W/S the categorical averments in this regard in para 7 of the plaint have not been denied, except that it has been vaguely alleged that the deft. was forced by the Bank to sign certain blank forms. The deft. had to make specific averments about the coercion, if any, as required u/O. 6 R. 4 which has not been done.

(6) Mr. Chandhiok has drawn my attention to S. 20 of the Negotiable Instruments Act as well as an order in I. A 91-92/88 in S, No. 296/80 in Syndicate Bank vs. Aryavrat International D./16.9.82 by S.S. Chadha, J. A perusal of S. 20 and this order shows that if a negotiable instrument has been signed and delivered by one person to another on a paper stamped in accordance with law relating to negotiable instrument in force in India either wholly blank or having written thereon an incomplete negotiable instrument then such an executant gives authority to the holder thereof to make or complete upon it for any amount specified therein not exceeding the amount covered by the stamp and the person so signing shall be liable upon such instrument, in the capacity in which he signed the same to any other holder in due course for the said amount. The allegation that some blank documents were executed or that the deft. was forced to sign certain documents is untenable and without force.

(7) There is no serious opposition by Mr. Girdhar to the application u/0. 12 R. 6, Cpc except for the argument regarding loss owing to fire and signing of blank documents. It is evident that the deft. have admitted the claim of the plaintiff. This is so on perusal of the pleadings as well as documents of the plaintiff which are admitted and exhibited. Consequently no issue arises for trial and the plaintiff is entitled to a decree. Accordingly. I pass a preliminary decree for Rs. 2,50,035.50P with interest @ 19.5% pa. from the date of the filing of the suit till the realisation of the amount as prayed. The plaintiff will also be entitled to the costs for the suit. The preliminary decree is against the defendant and the immoveable property at 46, Gupta Colony, Civil Lines Zone, Delhi-9. The Deft. is granted six months' time to make payment of the decried amount failing which the plaintiff will be at liberty to move the Court for a final decree.