Indian Overseas Bank vs M/S. Super Plastic India & Ors.
2000 Latest Caselaw 972 Del

ORDER

Vikram jit Sen, J.

1. This suit for the recovery of Rs.2,20,138.62 on the "basis of mortgaged property" was filed in 1982. After several unsuccessful attempts to serve the Defendants in the ordinary manner, this was finally achieved by publication in the Statesmen for 14.12.1983. The Defendants were proceeded ex parte on that date, as no appearance was entered on their behalf. No efforts have been made to have these Orders set aside, or the seek leave to file a Written Statement, although Mr. V.K. Jain, Advocate, has appeared for Defendant No. 1 on several dates of hearing and has even conducted the crossexamination of the Bank's witnesses.

2. Since no Written Statement has been filed by virtue of Order VIII Rule 10 it was open to the Court to pronounce judgment against the Defendants or make such orders in relation to the suit as it thought fit. Despite the fact that the Defendants were proceeded ex parte on two occasions, this Summary Procedure was not resorted to by the Court. Shri G.S. Matta, Manager, Regional Office of the Plaintiff Bank has been examined. He has deposed that Cash Credit Limited of Rs.80,000/- has been disbursed to Defendant No.1 by Roop Nagar Branch of the Plaintiff Bank on 12.9.1978 and that all the three partners of Defendant No. 1 had executed the Pronote. He has immediately thereafter deposed that two partners, namely, Hazari Lal and Ashok Kumar Jain had executed the Pronote, Letter of Hypothecation and other Letter of Hypothecation relating to machinery. These documents were duly proved and have been exhibited. He has further deposed that subsequently, one Key Cash Credit Limit to the tune of Rs. 40,000/- was released to Defendant No. 1 on 11.10.1979. Two Partners executed the Promissory Note and the Letter of Pledge. These documents were filled up by the deponent and one other staff member of the Bank. A Letter of Undertaking dated 12.9.1978 has also been signed by Shri Ashok Kumar Jain in the presence of this witness. Furthermore it has been stated that a Letter of Confirmation dated 13.9.1978 for the deposit of Title Deeds was also signed by Shri Hazari Lal Jain (Defendant No.3) in the presence of the witness. In respect of the documents he has deposed that they were first filled up by him and then signed. He has further deposed that a Memorandum of Equitable Mortgage was executed by Shri Hazari Lal Jain. This witness was extensively crossexamined but his testimony has not been shaken or diluted in any manner.

3. Thereafter Shri S.S. Ramdass, also an Officer of the Bank was examined. His testimony is that a Term Loan was given to Defendant No.1 by him as Acting Manager and that this Agreement was signed on 29.4.1980. He has also deposed that the entries were first filled up and then signed by Shri Hazari Lal Jain and/or Ashok Kumar Jain. He has also proved the Revival Letter in From 111 dated 7.4.1981, Balance Confirmation Letters dated 7.4.1981 and 22.4.1981. He has further proved Revival Letter dated 22.7.1981. He has produced and proved the Partnership Deed and the Rectification Deed filed by the Defendants with the Plaintiff Bank. As in the case of the previous witness the veracity of his statement has not been dented in any manner.

4. The Plaintiff has also produced Shri S.J. Shankar, Manager, Branch Office, Roop Nagar, Delhi and Principal Officer of the Bank who proved the Power of Attorney in his favour, by virtue of which he has signed and verified the plaint. He has deposed since there was irregularity in payment has deposed that 18 per cent interest per annum was charged on all three accounts. He has then stated that he had verified the three Statements of Accounts of the Defendants and certified their correctness under the Bankers' Books Evidence Act. He had stated that the amount shown in these accounts are due from the Defendants. The Power of Attorney has also been proved by Shri C.K. Kohli, another Manager of the Plaintiff Bank. No inconsistency or contradiction in the plaint or the evidence of this witness has been disclosed in his crossexamination.

5. I am satisfied that the Plaintiff has proved the averments contained in the plaint. The Defendants have availed of the various facilities granted to them by the Bank and have provided collateral for the loans/advances by execution of the various deeds mentioned in the plaint including the Demand Promissory Note, Letter of Pledge, Revival Letters and Demand Confirmation Letters. An equitable mortgage was also created and duly registered. Accordingly a preliminary decree for the sum of Rs.2,20,138.62/- with costs and future interest at the rate of 12.5 per cent per annum from 25.11.1982 till the realisation of the decretal amount is passed. The Defendants are granted 120 days within which to make this payment failing which a final decree shall be passed.

Preliminary Decree be drawn up accordingly.