Syndicate Bank vs General Exports Combinations & ...
2000 Latest Caselaw 114 Del

ORDER

S.K. Agarwal, J.

1. Plaintiff Bank has filed a suit against the Defendants for recovery of Rs. 9.87.535.72 with interest thereon @ 21% per annum compounded quarterly from the date of the suit till realisation and costs of the suit. It is alleged that the plaintiff is a nationalised bank and a corporate body constituted under the Banking Companies (Acquisition transfer of undertaking) Act, 1980 having its one branch at B-12, Green Park Extension, New Delhi: defendant No. 1 was a partnership firm, which was engaged in the business of automobile spare parts and were enjoying various credit facilities from the bank from time to time. Defendants 2 to 4 were the partners of Defendant No. 1. On 6th November, 1991, defendants were granted packing credit limit (PCL) of Rs. 7 lacs and FDBP facility of Rs. 10 lacs. Defendant No. 1 availed of PCL limit of Rs. 4.50 lacs on 6.11.1991 and executed the documents in favour of the Bank namely, Promissory note, for the said amount promising to pay the above amount along with the interest @3% per annum, above the RBI rates subject to minimum of 15% per annum compounded monthly for the value received, letter dated 6.11.1991 agreeing to pay the over due interest on the loan amount of Rs. 4.50 lacs @ 21% per annum compounded quarterly. Defendant Nos. 2 to 4 also stood surety in their individual capacity in lieu of credit facility of PCL and FDPL granted to defendant No. 1, and guaranteed the obligations of defendant No. 1 are in the nature of a continuing guarantee for all monies payable by defendant No. 1 in full. It was further pleaded that after availing the advance of the packing credit defendants never submitted the export document in respect of the goods on which the packing credit limit was taken. When the defendants failed to pay the packing credit loan, on 6.4.92 the bank wrote letter to the defendants calling upon them to liquidate the liability and to explain as to whether the export order was still pending or cancelled. The defendants vide letter dated 17.7.92 while acknowledging their liabilities stated that they were exploring possibility of disposing of the goods, in some other country and sought six months time to liquidate the same. The defendants again vide letter dated 22.2.93 asked the bank to reschedule the payments and allowing them to make part payment and also to consider concession on interest, ultimately legal notice dated 25.1.95 was served upon the defendants calling upon them to pay jointly and severally a sum of Rs.

7,15,359/- outstanding in the PCL account and Rs. 6,928.71 being the overdue in the current account, along with the interest and costs. It was pleaded that the total amount of Rs. 9,87,535.72 was due and payable to the plaintiff by the defendants towards the loan amount inclusive of interest. As noticed above it was inter-alia also pleaded that vide letter dated 17.7.1992, defendants had requested the Bank for rescheduling the packing credit for six months, which was allowed. This period expired on 10th January, 1993, on which date the defendants were called upon to pay the amount within 10 days, giving rise to a cause of action on 17th January, 1993. It was also pleaded that defendant No. 2 was abroad for quite substantial period of time, therefore, the period during which he was abroad has to be excluded under section 15(5) of the Limitation Act, 1963 (for short the Act) while computing the period of limitation for filing the present suit.

2. The suit was registered summons were issued through ordinary process as well as registered AD post, in the first instance, but they could not be served. Thereafter, service on defendant Nos. 1 to 4 effected by publication. None appeared on behalf of the defendants therefore, they were proceeded ex-parte on 5th Oct, 1998, and the plaintiff was asked to file affidavits by way of evidence. The plaintiff placed on record documents Exhibit P-1 to P-16 in support of their case.

3. Exhibit P-1 is original application dated 6.11.91 for grant of packing credit facility of Rs. 7 lacs, Exhibit P-2, Original Export Credit agreement dated 6.11.91 in favour of the plaintiff, for the grant of the said PCL limit, Exhibit P-3 is a demand promissory note dated 6.11.91 for Rs. 4.50 lacs whereby the defendants promised to pay the amount with interest @3% above the RBI rate or any rate to be fixed by the Bank with minimum 15% per annum. Exhibit P-4 is a letter of delivery dated 6.11.91 inclusive of pronote for Rs. 4.50 lacs and securities. Exhibit P-5 is stock statement of the goods and as on 6.11.91. Exhibit P-6 is original letter by the defendants agreed to pay overdue interest @ 25%. Exhibit P-1 to P-6 are duly signed by all the defendants. Exhibit P-7 is guarantee deed of defendant No. 2. Exhibit P-8 is guarantee deed of defendant No. 3. Exhibit P-9 is guarantee deed of defendant No. 4. Exhibit P-10 is a letter dated 6.4.92 written to the defendants by the bank pointing out that the packing credit had become overdue and called upon the defendants to liquidate the liability and to produce documentary evidence as to whether export order was still pending or cancelled. Exhibit P-11 in the letter dated 17.7.92 written by defendants to the Bank, by which the defendants acknowledged the debt. By this letter defendants also sought time for submitting the bills and to clear outstanding dues under PCL account equivalent to Rs. 4.50 lacs, Exhibit P-13 is the letter dated 10.1.93 by which the bank called upon the defendants to pay the entire amount upto date with interest within a period of 10 days. Exhibit P-14 is the letter dated 22.2.93 defendants to the bank seeking reachedulement of the advance. Exhibit P-15 is the notice dated 24.1.95 calling upon the defendants to pay the amount due with interest. Exhibit P-16 is statement of account. Exhibit P-17 is a copy of the power of attorney, executed by the bank in favour of Mr. Venkata Krishna, who has signed and verified the plaint.

4. Plaintiff has filed two affidavits one of Sh. P.K. Mathi, Manager of the plaintiff bank, and other of Mr. K. Venkata Remani. Mr. P.K. Mathi in his affidavit has stated that he had worked at the Green Park branch of the plaintiff's bank from June 1988 to July, 1992 and during his tenure he dealt with defendants No. 1, a partnership firm, and defendants 2 to 4, who were its partners; and he proved the above said documents Exhibits P-1 to P-11 executed by the defendants seeking loan facilities and availing of credit facilities, execution of the promissory note and the guarantees executed by the defendants, as Exhibits P-7 to P-9. He also proved letter dated 6.4.1992 written by the bank to the defendants pointing out that the packing credit facilities had become over due and called upon them to liquidate the same; and the reply letter dated 17.7.92 written by the defendants acknowledging the debts. Mr. K. Venita Krishana has stated that he was working at Green Park branch of the plaintiff from May 1995 to July, 1998 as its Chief Manager and dealt with the defendants' account in the ordinary course of business. He has stated that he had personal discussion with the defendants who sought time for submitting the bills and to clear the credit loan to Rs. 4.50 lacs and the interest thereon. He also proved vide letter dated 10th January, 1993 (Ex. P-13) whereby the defendants were called upon to pay the entire amount up to date with interest within 10 days; and the statement of accounts, of defendants Exhibit P-16 which shows the suit amount is due and payable by the defendants. The power of attorney executed by the bank authorising Mr. Venkatakrishna. Ex. P-17 was also proved.

5. It may be recalled that the plaintiff bank, vide its letter No. 176/9048/731/1992/FX dated 6th April, 1992, Exhibit P-10, informed the defendants about the outstanding dues of Rs. 4.5 lacs plus interest in the PCL account, which was released to them on 6.11.92 and sought information from them as to when they would be liquidating the same. In reply defendants, vide their letter dated 17.7.92 Exhibit P-11 acknowledged in writing their liability in respect of the aforesaid dues but sought six months time to clear the same. This unqualified acknowledgement of liability with a promise to pay gave rise to a new cause of action within the meaning of Section 18 of the Act. Further defendant no. 2 was not in India and was abroad for a substantial period after the amount became due, under section 15(2) of the Act, in computing the period of limitation for a suit, time during which the defendant has been absent from India has to be excluded. Thus the suit for recovery money instituted on 9th January, 1996 is held to be within the period of limitation.

6. The above evidences clearly prove that the plaintiff is entitled to recover the suit amount of Rs. 9,87,535.72 from the defendants, inclusive of interest up to 8th January, 1996, it is ordered accordingly.

7. For the foregoing reasons decree is passed in favour of the plaintiff against the defendants directing them to pay to the plaintiff a sum of Rs. 9,87,535.72 with further interest thereon @ 12% per annum from the date of the filing of the suit till realisation and the costs of the suit.

8. Decree be prepared accordingly.