Delhi High Court
State Bank Of India vs Kanikars Auto Care (P) Ltd. And ... on 19 October, 2001
Author: V Aggarwal
Bench: V Aggarwal
JUDGMENT
V.S. Aggarwal, J.
1. The present civil suit has been filed by State Bank of India for recovery of Rs. 9,46,878.83 against the defendants.
2. The facts allege are that Subhash Chander, Chief Manager is conversant with the facts of the case and is competent to sign and verify the plaints and written statement besides Vakalatnama in terms of General Regulations No. 76 and 77 of the State Bank of India General Regulations, 1955.
3. It is asserted that defendant No. 1 is a private company engaged in manufacturing of trade, business of kits, accessories, Chemicals, paints, colours etc. Defendants had approached the Narain Branch of the plaintiff for grant of loan facilities. The plaintiff bank sanctioned to the defendants loan under various heads on their executing the necessary and relevant documents. The plaintiff bank sanctioned cash credit (hypothecation factory type) loan of Rs. 5,50,000/- on 9th August, 1988. The defendants had executed (a) promissory note dated 19th August, 1988 for Rs. 5,50,000/- payable with interest of 15-1/4 p.a. with quarterly rest. Defendants 2 and 3 had endorsed the same in favor of the plaintiff bank (b) DP note delivery letter signed by defendants dated 19th August, 1988 evidencing the delivery of DP note for Rs. 5,50,000/- (c) revival letter form I executed on 29th November, 1990 by defendants thereupon acknowledging and confirming the liability to pay the amount (d) revival letter executed on 29th October, 1990 by defendants 2 and 3 confirming and acknowledging liability for payment of the amount secured by DP note (e) agreement dated 19.8.1988 for cash credit on hypothecation of goods as detailed in schedule annexed with the agreement whereby defendant No. 1 hypothecated the goods in order the secure the repayment of the loan and interest and lastly (f) agreement of guarantee dated 19th August, 1988 by defendant 2 and 3 for securing repayment of loan amount.
4. The plaintiff opened a cash credit factory type account in the name of defendant No. 1 on 19th August, 1998 in the books of accounts. Diverse payments made to defendant and received from the defendants from time to time were debited and credited in the account. There was a debit balance of Rs. 3,86,734.33 due to the plaintiff as on 23rd November, 1993 inclusive of interest. The plaintiff bank also sanctioned cash credit loan of Rs. 3,00,000/- and defendants executed fresh documents, namely (i) promissory note deliver letter of 19th August, 1988 evidencing delivery of (ii) DP note of Rs. 3,00,000/- lakhs and (iii) agreement of 19th August, 1988 (iv) agreement of guarantee on 19th August, 1988 (v) revival letter of 29th November, 1990 and revival letter form-I and revival letter form-2 of the same date.
5. The plaintiff opened a cash credit account in the names of defendant 1 on 19th August, 1988 in the books of accounts. Diverse payment made to the defendants from time to time were debited in the account of diverse payment received were credited. There stood a debit balance of Rs. 1,55,186.50 as on 23rd November, 1983.
6. The plaintiff had also granted mid term loan as working capital for purchase of machinery for Rs. 80,000/-. The defendants had executed an agreement of 19th August, 1988 besides a guarantee of defendants 2 and 3 in favor of the plaintiff.
7. It is alleged that plaintiff opened a medium term loan account in the name of defendant no. 1 and disbursed Rs. 80,000/-. A debt of Rs. 26,650/- was due.
8. Defendant No. 2 for securing repayment of various loans advanced to defendant No. 1 had deposited the title deeds with respect to property No. 157 situated in Gali Abdul Hakim, Phathak Habishkhan, Ward No. 3, Delhi.
9. Now it is stated that the amount of cash credit factory type due is Rs. 3,86,734.33, interest from 1.1.1991 till filing of the suit Rs. 2,56,883/-, amount of cash credit (Bills) of Rs. 1,55,183.50 and interest from 1.1.1991 till the filing of the suit Rs. 1,08,280/- besides the Medium Term Loan of Rs. 26,650 and interest on the said amount Rs. 13,145. In all Rs. 9,46,878.83 is due. Hence the present suit has been filed.
10. The defendants had been served by publication and on 21.4.1997 were proceeded ex parte.
11. Evidence was led by way of affidavits. Shri K.C. Jain had filed his affidavit and has sworn that Subhash Chander was the Chief Manager. He has signed and verified the plaint. He also had stated that defendant No. 1 is a private limited company. Plaintiff company had sanctioned cash credit of Rs. 5,50,000/- on 19.9.1988.
12. The evidence shows that in pursuance of that a promissory note had been executed which is Ex. P2. In addition to that a DP note/deliver letter was signed by the defendants Ex.P3 followed by revival letter of 29th November, 1990 which is Ex. P4. An agreement was signed on 19th August, 1988 Ex. P6.
13. Cash credit account had been opened in the name of defendant No. 1. The statement of account in this regard is Ex. P8.
14. It is further proved that plaintiff bank had sanctioned a cash credit loan of Rs. 3,00,000/- and a promissory note was executed by defendant No. 1 which is Ex. P9. with ABP note Ex. P10. The agreement is dated 19.8.1988 followed by an agreement of guarantee Ex. P12.
15. The evidence further proves that plaintiff granted medium term loan for Rs. 80,000/- and an agreement Ex. P15 had been executed. The guarantee was given by defendants 2 and 3 and the agreement is Ex. P16. Defendant No. 2 for securing the repayment of the loan had created a mortgaged by deposit of title deeds of house No. 157 situated in Gali Abdul Hakim, Phatak Habishkhan, Ward No. 3, Delhi.
16. For these reasons the document clearly show that the amount claimed is due because it is supported by the statement of account in this regard. In the absence of any other fact being on the record the suit is decreed ex parte. As against the defendant No. 1, it is decreed for Rs. 9,46,878.83 with cost and interest from the date of the filing of the suit at the rate of 12% p.a. till the final payment is made.
17. As against defendant No. 2 a preliminary decree is also passed that in case the defendant No. 2 fails to pay the decretal amount the plaintiff would be entitled to apply for final decree directing that mortgaged property can be sold and proceeds of sale be paid into court and plaintiff can apply for payment. In case the proceeds of sale are not found sufficient the plaintiff would be at liberty to apply for realisation of the balance decretal amount.
