State Bank Of India vs P. Abraham And Anr.
1995 Latest Caselaw 891 Del

JUDGMENT

N.G. Nandi, J.

(1) By this suit, the plaintiff bank seeks to recover Rs. 7,72,488.93 paise with pendente lite and future interest @ 13% p.a. from the date of the suit till realisation with costs of the suit. The case set out in the plaint is that the plaintiff bank is a body corporate constituted by the State Bank of India Act, 1955, having its central office at Bombay and branches, amongst other places, at Najafgarh Road, Delhi, which is under the Administrative Control of local head office at NewDelhi; that defendant No. 1 carries on business as the sole proprietor in the name and style of M/s. Jasper India who manufactures electrical and mechanical equipments etc; that Defendant No. 2 is the guarantor/surety to the plaintiff for defendant No. 1 in respect of the dealings of defendant No. 1 with the plaintiff-bank; that defendant No. 1 got the account opened with the plaintiff-bank as the proprietor of M/s. Jasper India: that in the year 1973 defendant No. 2 as the sole proprietor of Jasper India, approached the plaintiff and obtained the facilities, namely, (a) Medium Term Loan (M.T.L.[Clean]) for Rs. 51,880.00 , (b) M.T.L. (Machinery) for Rs. 92,800.00 ; that for availing the aforesaid facilities, defendant No. 1 executed Articles of Agreement, Demand Promissory Note for Rs. 51,800.00 , both dated 9.11.1973 and Articles of Agreement for M.T.L. against pledge of movable machinery dated 9.11.1973; that as the guarantor-defendant No. 2 besides endorsing the promissory note in favor of the plaintiff-bank, also executed certain documents averred in the plaint; that the plaintiff-bank sanctioned cash credit (Spl. Hypothecation) limit of Rs. 1.00 lakh in February, 1974; that defendant No. 1 as the proprietor of Jasper India also executed agreement of hypothecation and guarantee and demand promissory note for Rs. 1.00 lakh, both dated 18.2.1974 in favor of defendant No. 2; that defendant No. 2 as guarantor also endorsed the Dp note besides executing the agreement for hypothecation and guarantee; that defendant No. 1 also availed cash credit (clean) facility to the tune of Rs. 2.09 lakhs and the defendants executed necessary documents for the said facility on 8.11.1977; that defendant also availed of cash credit (nursing account) of Rs. 15000.00 and also executed necessary documents for the said facility on 27.5.1978; that defendant No. 1 availed the aforesaid facilities and as on 14.5.1980, Rs. 7,72,488-93 paise became due and payable by the defendants to the plaintiff under various facilities enjoyed by the defendants inclusive of interest up to 14.5.1980; that the plaintiff called upon the defendants to pay up the amount due and regularise the account but the defendants did not pay any heed to the same and the plaintiff is constrained to file the present suit for the reliefs aforestated, averred more particularly in Clauses (a) to (c) at page 20 of the plaint,

(2) The defendants, by filing written statement, resisted the suit claim of the plaintiff, inter-alia, contending that the suit is barred by limitation and that the documents were blank when they were signed by the defendants. It is admitted that defendant No. 1 as the proprietor of M/s. Jasper India carries on the business of manufacturing the electrical and mechanical equipments and that defendant No. 1 was maintaining the account with the plaintiff-bank. It is averred in para 10 that certain facilities were given but monies were paid back also. It is denied that any thing is due to the bank. It is further stated that the bank, by reason of its breaches and by reason of negligence with the consequent damage, has caused great loss to the answering defendants and the defendants have lost about Rs. 10.00 lakhs in the process. It is denied that Rs. 7,72,488.93 or any amount, as alleged by the plaintiff, is due or payable by the defendants. It is averred that the plaintiff has deliberately not stated about the payments made by the defendant in their account. In substance, the defendants deny the suit claim and pray for dismissal of the suit.

(3) In view of the pleadings on record, following issues were framed on 15.10.1981:

1.What amount is due to the plaintiff from the defendants ? 2. Did defendants sign the documents when they were blank? If so to what effect? 3. What interest is plaintiff entitled to? 4. Relief.

My findings on the Issues: 1. Issue NO. 1 As Per Final ORDER. 2. Issue N0.2 In NEGATIVE. 2ND Part Does Not ARISE. 3. Issue N0.3 At The Rate Of 10%. 4. Issue N0.4 As Per Final ORDER.

(4) It may be noted at the out set that after cross-examining the witnesses examined by the plaintiff, the defendants have not appeared in the matter and there is no oral evidence adduced by either of the defendant.

(5) It may be seen from para 10 of written statement, as reproduced above, that the defendants contend that certain facilities were given but monies were paid back also. It need hardly be said that when a party pleads payment, it is for him to show by adducing necessary evidence that the payment has been made towards the suit claim and substantiate this averment in defense. In para 5 of written statement, it has been averred that certain signatures on blank printed forms were taken by plaintiff bank and it appears that they have been misused. In para 9 it is averred that some signatures on printed forms were taken at the earlier stage and it appears these documents have been fabricated by filling in the amount and writing dates. On the basis of these averments. Issue No. 2, as above, has been framed. The say of the defendant is that certain signatures on blank printed forms were taken by the plaintiff and that the same have been misused. As far as Issue No. 2 is concerned, it would be for the defendants to substantiate the same by adducing the necessary evidence. As pointed out earlier, defendants have not stepped into the witness box. In the cross-examination ofPW2 Mr. J.C. Khera, an officer of the plaintiff-bank, it has been suggested that at the time of execution of documents Ex.P-10 to P-13 and Ex.P-15 to P-18, the Branch Manager, Manager, State Bank of India, (Small Industries Business), were also present. The suggestions in cross-examination to this witness that when these documents were signed by the defendants, blanks therein were not filled up and that the same were filled up subsequently have been denied. No other questions to PW2 and 3 with regard to the alleged blanks left in the forms and filling up of the same subsequently have been put. As pointed out, the defendants have not stepped into the witness box. The only oral evidence, by way of suggestions as above, with regard to the defense of obtaining signatures on blank forms and misusing the same have been found in the cross-examination of PW2 that blanks were left in the printed forms and that the signatures were obtained on the blank forms, by itself would not be suggestive of the fact that there were blanks left in the printed forms and that the defendants had signed the blank forms and that the signatures on the blank papers were obtained which were subsequently filled in. In absence of evidence by the defendants in this regard, the defense on this score can not be said to have been substantiated and therefore not acceptable. Issue No. 2 for want of evidence by the defendants remain unsubstantiated the same deserves to be answered in the negative.

(6) The plaintiff has examined PW1 to PW3 to substantiate the suit claims. The documents Ex.P-1 to P-37 have been proved by the evidence of the witnesses. The grant of various facilities to defendant No. I as proprietor of M/s. Jasper India, as averred in the plaint, has been established by the evidence of PWs 1 to3. Defendants also admit in the written statement that certain payments were made by the plaintiff-bank to the defendant. Defendants plead repayment thereof, which would establish the grant of the facilities by the plaintiff-bank to defendant No. 1 and defendants having failed to adduce any evidence suggesting repayment thereof, it can be safely said that the defendants availed of the facilities as averred in the plaint and also deposed by Public Witness s. 1 to 3 and defendants having not suggested repayment thereof, by way of evidence, it would mean that the defendants did repay the loan amounts and owe the amounts outstanding to the plaintiff-bank.

(7) In the plaint, plaintiff has prayed for 13% interest. The documents on record suggest eight and half per cent interest in case of M.T.L. (Clean), M.T.L. (Machinery) and Cash Credit (Spl. Hypothecation) and 11% in respect of remaining facilities. The defendants having executed the agreement with regard to the payment of interest at the rates of 8% and 11% as pointed out, the defendants would be liable to pay interest at the agreed rates till the institution of the suit. It need hardly be said that the plaintiffs can not get interest more than what is prayed in the plaint and that too subject to the rate of interest agreed between the parties in this regard. In view of this, from the date of the suit, plaintiff would be entitled to interest @ 10% till the realisation of the amount. Issue No. 3 is answered accordingly.

(8) It may be seen that defendant No. 2 having admitted the execution of documents and having not denied in written statement his having become the surety/guarantor for repayment of the suit amount to the plaintiff by defendant No. 2, defendant No. 2 is proved to have become the guarantor/surety and the liability defendant No. 2 as guarantor would be co-existence with that of defendant No. 1.

(9) On preponderance of probabilities, plaintiff's version sounds more probable. On appreciation of evidence the plaintiff would be entitled to the decree.

(10) It, therefore, follow from the above that the plaintiff would be entitled to the decree as prayed for against both the defendants. Hence following order.

Order

(11) The suit is decreed. Defendants No. I and 2 do pay Rs. 7,72,488.93 paise with 10% interest on Rs. 4,59,600.00 from the date of the suit till realisation of the amount. Defendants shall bear their own costs of the suit and pay that of the plaintiff.