Syndicate Bank vs Hindustan Fibre Glass Products ...
1993 Latest Caselaw 4 Del

JUDGMENT

Sat Pal, J.

(1) This is a suit for recover of Rs. 2,93,572.80together with pendente lite and future interest at the rate of 20% per annum from the date of the suit till realisation.

(2) The facts of the case briefly stated are that the plaintiff is a nationalised bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and having its head office at Manipal in South Kanara, District Karnataka State and having one of its branches at Bijwasan, New Delhi. Shri U.V. Mahaya is the General Attorney/Principal Officer/Manager at Bijwasan, New Delhi branch of theplaintiff-bank. He is duly authorised to sign and verify the present plaint and to institute the present suit. In this regards he holds the power of attorney from the plaintiff-bank.

(3) As per the averments made in the plaint defendant No. 1 which is a partnership concern of defendants 2 & 3 were granted financial accommodation to the extent of Rs. 1.90,000.00 and in this connection the agreement of guarantee was executed by defendants 2 to 4 in their individualcapacity. It is further mentioned in the plaint that the defendant No. 1 was sanctioned a loan of Rs. 80,000.00 and an over-draft limit of R.s. 70,000.00 in all for which the defendants 2 to 4 were the guarantors. The aforesaid sum of Rs. 80,000.00 was sanctioned to defendant No. 1 with defendants No. 2and 3 as borrowers and defendant No. 4 stood as surety/coobligant on 20th December, 1980 for which the defendants executed the agreements. The said loan was to carry interest at the rate of 2.85% per annum above the Reserve Bank of India rate with a minimum of 11.85% per annum and the said loan was repayable in monthly Installments of Rs. 2,000.00 per month, the first Installment being payable on or before 20/03/1981 and subsequent Installments at the same rate on or before 20th of each subsequent English calendar month. Thus the loan was to be declared on or before 20/06/1984. It was further agreed that in. case of default of quarterly interest or Installments, the loan shall bear the over-due interest at the rate fixed by the plaintiff-bank for such loan from time to time.

(4) It is further stated in the plaint that as agreed by the defendants,the loan was released upon the receipt of invoices for the purpose of machinery and other instruments as per details given herein below :

(A) Rs. 26.600.00vide receipt dated 22.12, 1980 executed by defendants 1 to 3 remitted to M/s. Machinery Marketing Associates,New Delhi.

(B) Rs. 5250.00 dated 23.12.1980 by defendants 1 to 3 remitted toM/s. Machinery Marketing Associates, New Delhi.

(C) Rs. 7500.00vide receipt dated 23.12.1980 executed by defendants 1 to 3 remitted to M/s. Machinery Marketing Associates,New Delhi.

(D) Rs. 7125.00vide receipt dated 30.12.1980 executed by defendants 1 to 3 remitted to M/s. Kelley's Engineering Works.

(E) Rs.9670.00vide receipt dated 15.1. 1981 executed by defendants 1 to 3 remitted to M/s. Machinery Marketing Associates.

(f ) Rs. 7490.00 vide receipt dated 27.1.1981 executed by defendantsI to 3 remitted to M/s. Robit Electricals.

(5) Besides the above mentioned amount a sum of Rs. 10,000.00 was credited by Sodh account bearing No. SODH/39 of defendants 1 to 3 on 30/12/1980 and a further sum of Rs. 6,000.00 to the said account on 29/03/1981. Defendants 1 to 3 hypothecated their stocks and various goods and also machinery as detailed in the agreement for thisterm-loan.

(6) It is further stated in the plaint that the defendants agreed to waive the notice of variation of rate of interest and payment of overdue interest by a letter and also gave a copy of the partnership deed. It is then stated that a sum of Rs. 1,54,606.00 was due to the plaintiff from the defendants on account of Loan No. OSL-26/80 as on 30/06/1980 and asumofRs.l,55,033.00is due in this account as on the date of filing of thesuit. It is also stated that the balance outstanding amount of this loan was acknowledged by the defendants on 17/12/1983.

(7) It is further alleged in the plaint that to avail the overdraft limit of Rs. 70.000.00 the defendants executed various documents including pronote,agreement of hypothecation, letter of delivery of pronote, letter of delivery of security, letter of authority and notice for variation in the rate of interest and payment of over-due interest. It is then alleged that the balance existing in this account on 22/12/1983 was to the extent of Rs. 99,884.79and this balance amount was acknowledged by the defendants vide acknowledgement of debt dated 22/12/1983. It is further stated in the plaint that a total sum of Rs. 2,93,572.80 is due to the plaintiff-bank on account of the aforesaid accounts and the defendants have failed to pay the said amount inspite of repeated requests and demands and legal notice. Hence the present suit has been filed by the plaintiff against the defendants.

(8) Summons of the suit were sent to the defendants. After the service of the summons defendant No. 2 was represented by his Counsel on 1/11/1988 but thereafter he discontinued appearing in the case.Defendant No. 4 did not appear inspite of service. Defendants 1 and 3 were served by publication in the daily 'Statesman' dated 4/08/1989 for 10/08/1989. But these defendants also did not appear despite service.Accordingly all the defendants were proceeded against ex parte vide orderdated 6/10/1989. On the same date the learned Counsel for the plaintiff was permitted to lead evidence by way of affidavits. Thereafter theplaintiff has filed the affidavit of Shri P.L. Tanri, Manager of Bijwasan, New Delhi branch of the plaintiff-bank. All the averments and allegations madein the plaint have been proved by the said witness.

(9) Exhibit P-1 is the photo copy of the power of attorney issued by the plaintiff-bank in favor of Shri U.V. Mallaya who has signed and verified the plaint in this case. Exhibits P-2 to P-5 are the documents duly signed and executed by the defendants in respect of the financial accommodation to the extent of Rs. 1,90,000.00 granted by the plaintiff-bank in favor of the defendant No. 1. Exhibits P-6 to P-11 are the receipts of the invoices for the purchase of machinery and other instruments in respect of the loan released by the plaintiff-bank to the defendant No. 1. Exhibits P-12 and P-13 are the receipts in respect of sums of Rs. 10,000.00 and Rs. 6,000.00 respectively credited to Sodh Account No. 39 of defendants 1 to 3 on 30/12/1980 and 17/03/1981 respectively. Exhibits P-14 andP-15 are the documents executed by the defendants agreeing to waive the notice of variation of rate of interest and payment of over-due interest. Exhibit P-16is the agreement of hypothecation duly executed by the defendants. ExhibitP-17 is the authenticated statement of account duly certified under the Bankers Book Evidence Act of the Loan Account No. OSL-26/80. ExhibitP-18 is the acknowledgement of debts given by the defendants to the plaintiff-bank on 17/12/1983. Exhibits P-19 to P-25 are thedocuments including pronote, agreement of hypothecation, letter of deliveryof pronote, letter of delivery of security and notice of variation in rate of interest and payment of overdue interest executed by the defendants with regard to the overdraft limit of Rs. 70,000.00. Exhibit P-26 is the authenticated copy under the Bankers Book Evidence Act of the Loan AccountNo. SODH-39 of the defendants. Exhibit P-27 is the acknowledgement of debt by the defendants as on 22/12/1983 in respect of the aforesaid account. Exhibits P-28 and P-29 dated 24/05/1982 and 3/04/1984 are the letters sent by the defendants to the plaintiff-bank wherein they had promised to regularise their account but failed to do so.

(10) All these exhibits have been proved by the affidavit of Shri P. L.Tanra. Manager of the plaintiff-bank. By this affidavit the said witness has also proved that a total sum of Rs. 2,93,572.80 is due to the plaintiff from the defendants.

(11) As stated hereinabove, the defendants were proceeded against ex pane. None of the defendants has filed any written statement controverting the averments and the allegations made in the plaint. On the other hand the plaintiff has proved its case by the affidavit of Sh. P.L.Tanri.Hence the plaintiff is entitled to succeed in the suit. Accordingly the suit for recovery of Rs. 2,93,572.80 is hereby decreed with costs in favor of theplaintiff-bank and against the defendants. The plaintiff shall be entitled to pendente lite and future interest at the rate of 20% per annum. Decree may be drawn accordingly.Order accordingly.