Central Bank Of India vs Rakash Chemical Industries And ...
1993 Latest Caselaw 578 Del

JUDGMENT

Sat Pal, J.

(1) This is a suit for recovery of Rs. 2,60,303.90 with costs and future interest @ 16.5% p.a. with quarterly rests from the date of the institution of the suit till the date of its realisation.

(2) The facts of the case briefly stated are that the plaintiff is a Bank constituted under the Banking Companies (Acquisition and Transfer ofUndertakings) Act, 1970, having its Central Office at Chander Mukhi Nariman Point, Bombay and a Branch amongst others at Naya Bazar,Delhi-110006. Shri Chandra Dev Kashyap is the Assistant Regional Manager and Genera Attorney (North) of the Plaintiff Bank. He is duly authorised to sign and verify the present plaint and to institute the present suit. In this regard he holds the power of attorney from the Plaintiff Bank.

(3) As per averments made in the plaint, the defendant No. 2 who is the proprietor of defendant No. 1 opened a Current A/c. bearing No. 3380with the Plaintiff Bank in the name of defendant No. 1. At the request ofthe defendants 1 and 2, the facility of overdraft was granted by the "Plaintiff Bank and the said defendants availed this facility by drawing the following cheques favoring one M/s. R.M. Enterprises.

DATE Cheque NO. (AMOUNT Rs.)02.4.1987 27081 45,000.0003.4.1987 27082 46.750.0010.4.1987 27084 50,000.0015.4.1987 27085 37.500.00

It is further stated in the plaint that despite repeated requests and reminders defendants 1 and 2 have failed to pay/adjust the outstanding dues of theplaintiff.cIt has also been stated in the plaint that the defendant No. 2 for self and as Proprietor of defendant No. 1 executed a Demand Promissory Note dated 24/09/1987 in the then outstanding balance in thesumofRs.l,78,790.00. The defendants also acknowledged the debt as on 30/06/1987 and as on 31/12/1987 vide confirmations of saiddates. It is further alleged that vide letter dated 5/04/1987 the defendant No. 2 as proprietor of defendant No. 1 promised the plaintiff to adjust the outstanding dues by the end of April, 1987, but failed to keep thepromise.

(4) It is then stated in the plaint that after giving adjustment and credit to the part payments made from time to time, the defendants owe to the plaintiff a sum of Rs. 2,60,303.90 inclusive of interest up to the priod ending 17/09/1989. Thereafter the Plaintiff Bank sent legal notice of demand dated 4/08/1988 through their Counsel, but inspite of service of the said notice the defendants have failed to pay the, amount,hence the present suit has been filed by the plaintiff.

(5) The notice of this suit was sent to the defendants. At the initialstage, the defendants have been appearing through their Counsel, but from 18/05/1992 the learned Counsel for the defendants discontinued appearing on behalf of them. Accordingly by order dated 21/05/1992, the defendants were proceeded against ex-parte and the Plaintiff was permitted to file affidavit by way of Ex-parte evidence. The plaintiff has filed the affidavit of Shri Chandra Dev Kashyap, Assistant Regional Manager (North),Delhi and General Attorney of the Plaintiff Bank. Besides this affidavit,Shri Kashyap has also been examined on 29/09/1993 and he has proved the power of attorney issued in his favor to sign and verify the plaint and file the suit. All the averments and allegations made in the plaint have been proved by the Plaintiff Bank by the affidavit of Shri Chandra Dev Kashyap and his oral evidence.

(6) EX. P-1 is the photo copy of the power of attorney issued by the Plaintiff Bank in favor of Shri Chandra Dev Kashyap authorising him to file the suit and to sign and verify the plaint. Exs. P-2 to P-5 are the original cheques regarding Over Draft facility availed by the defendants No. 1 and2. Ex. P-6 is the balance confirmation dated 30/06/1987. Ex. P-7 isthe Pronote Bill executed by the defendants 1 and 2. Ex. P-8 is again the debit balance confirmation dated 31/12/1987 and P-9 is the letter dated 5/04/1988 sent by the defendants to the Plaintiff-Bank stating therein that they would adjust the balance outstanding amount by the end of April, 1988. Ex. P-10 is the authenticated copies under the Bankers Books Evidence Act of the Bank. Ex. P-l I is the copy of the legal notice sent by the Plaintiff Bank to the defendants through their Counsel. All these exhibits have been proved by Shri Chandra Dev Kashyap.

(7) As stated herein above, both the defendants were proceeded againstEx-parte. The defendants have not filed any written statement controverting the averments and allegations made in the plaint, nor any witness has been examined by the defendants to rebut the averments made in the plaint. On the other hand, the plaintiff-Bank has proved its case by the affidavit of Shri Chandra Dev Kashyap and his oral evidence. Hence the plaintiff is entitled to succeed in the suit. Accordingly, the suit for recovery ofRs. 2,60,303.90 is hereby decreed with costs in favor of the plaintiff and against the defendants. The plaintiff is entitled to future interest @ 16.5^p.a. with quarterly rests. Decree may be drawn accordingly.