Delhi High Court
M/S Narottam Dass & Sons & Ors vs State Bank Of Hyderabad on 6 November, 2008
Author: Pradeep Nandrajog
1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.181/2005
Date of decision: 6th November, 2008
% M/S NAROTTAM DASS & SONS & ORS ..... Appellants
Through : Mr. Arvind Pandey, Adv.
versus
STATE BANK OF HYDERABAD ..... Respondent
Through : Mr. Ashish Kalia, Adv.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. Midha
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. Heard learned counsel for the parties.
2. Three submission have been made by learned counsel
for the appellant at the hearing today.
3. The first submission made is that the statement of
account, Ex.PW1/13, cannot be relied upon for the reason it is
an incomplete statement of account.
4. Second submission made is that the revival letter,
Ex.PW1/12, dated 04.04.1990, was not proved and hence the
claim of the bank is barred by limitation.
5. Last submission made is that the Learned Trial Judge
has erred in awarding pendente lite and future interest @
19.5% per annum.
6. Relevant facts are that the firm Narotam Dass and Sons
of which Mr. Narotam Dass, Mr. Ashok Malhotra and Ms. Rita
Malhotra were partners availed a bill discounting facility from
the State Bank of Hyderabad and while availing the said bill
discount facility having a limit of Rs.4.5 Lakhs, executed a
demand promissory note dated 13.12.1984 Ex.PW1/2; a DP
note of even date, Ex.PW1/3, delivery letter of even dated
Ex.PW1/3a, a letter of even date, Ex.PW1/7, a certificate of
execution of the DP note, of even dated Ex.PW1/4, a
disclaimer letter of even date, Ex.PW1/5, a letter of even date,
Ex.PW1/6 offering a FDR as a security for repayment of the
loan.
7. According to the bank the account become sticky and on
04.04.1990 the three partners of the firm executed a revival
letter Ex.PW1/12.
8. Since after adjusting the FDR which had matured in sum
of Rs.6,88,200/-, Rs.3,65,168.84 was due and payable as of
October, 1991 suit was filed claiming a decree in said sum
together with pendente lite and future interest @ 19.5% per
annum.
9. In respect of the claim for interest it was pleaded by the
bank that the defendants had agreed to pay interest @ 3.5%
per annum over and above the Reserve Bank of India rate
with a minimum interest @ 13.5% per annum with quarterly
rests.
10. The defence taken was that the revival letter Ex.PW1/12
was not binding as it was a forged and fabricated document.
11. The bank examined Sh. V.M. Kashyap as PW-1 who
stated that he worked in the branch as manager from March,
1983 to November, 1987. He proved the various documents
which we have noted hereinabove as also the bank statement
Ex.PW1/13. In respect of the revival letter dated 04.04.1990
Ex.PW1/12 he stated that with respect thereto he was
deposing with reference to the record of the bank. In his
examination-in-chief he deposed : I state that the defendants
agreed to pay interest @ 13.5% per annum with quarterly
rests.
12. The witness was cross examined. Learned counsel for
the appellant has not been able to point out any question in
the cross-examination of the witness pertaining to the entries
Ex.PW1/13.
13. It is true that the said statement of account shows
entries w.e.f. 01.01.1986 onwards and the account
commence with a brought forward entry of a debit in sum of
Rs.3,90,663.35. In the absence of any cross-examination as
to the validity of the brought forward debit entry, we are
afraid, no submission can be urged challenging the same.
14. It is settled law that unless an entry in a statement of
account is challenged and the witness of the bank is
confronted with the same no submission can be made much
less a submission that the entry has to be ignored.
15. We are therefore not impressed with the first submission
made.
16. Pertaining to the revival letter, Ex.PW1/12, dated
04.04.1990, we note that the witness of the bank stated that
he was deposing regarding the said documents as it was in
the record of the bank.
17. In this connection, it would be relevant to note that one
of the three partners of the firm, namely, Ms. Rita Malhotra
had entered into the witness box as DW-2 and in respect of
the revival letter had stated that same was forged and
fabricated document, without stated as to in what manner she
claim the same to be a forged and fabricated document.
18. It would be of relevance to note that we have compared
the signature of Ms. Rita Malhotra and the other two partners
of the appellant No.1 on the admitted documents which were
signed on 13.12.1984 with the signature on revival letter
Ex.PW1/12.
19. A visual comparison shows that the signature on the
revival letter tally with the signature of the three partners on
the other documents. It is also relevant to note that when
admission/denial of the documents was done, Ms. Rita
Malhotra admitted the signatures on the revival letter. If this
be so, the presumption of law that a document was duly filled
up before it was executed arise.
20. Ms. Rita Malhotra having admitted the signatures on the
revival letter was thus obliged to lead evidence to show as to
under what circumstances the same was a forged and
fabricated document. Having not done so, we find no merit in
the second contention urged.
21. Pertaining to the last contention urged, we note that in
the plaint it is pleaded in para 6 that the defendants agreed
to pay interest @ 3.5% per annum over and above the
Reserve Bank of India rate with a minimum interest @ 13.5%
per annum with quarterly rests.
22. We further note that PW-1 in his examination-in-chief
filed by means of an affidavit himself stated that the
defendants agreed to pay interest @ 13.5% per annum with
quarterly rests.
23. Witness of the bank did not depose that the defendants
agreed to pay interest @ 3.5% over and above the Reserve
Bank of India rate subject to a minimum of 13.5% per annum.
24. We further note that the bank has brought no evidence
on record pertaining to notification issued by the Reserved
Bank of India. We further note that learned counsel for the
bank has not been able to point out any ground to us
wherefrom the admission of the appellant to pay interest @
19.5% can be gathered.
25. Thus, it is obviously a case where Learned Trial Judge
could not have awarded pendente lite and future interest @
19.5% per annum. We note that the rate of interest
mentioned in the promissory note Ex.PW1/2 is 13.5% per
annum.
26. We this partly allow the appeal by reducing rate of
interest awarded by the Learned Trial Judge from 19.5% per
annum w.e.f. 01.10.1991 to 13.5% per annum w.e.f.
01.10.1991 till realization. The principal sum adjudged and
awarded in the decree is maintained.
27. We note that appellants have deposited Rs.5 lakhs in
this Court which has been invested in a fixed deposit. We
release the said amount together with accrued interest
thereon in favour of the respondent.
28. Needless to state while executing the decree for the
balance amount, respondent would give due adjustments of
Rs.5 lakhs by adjusting the same first towards the principal
sum.
29. No costs.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
NOVEMBER 06, 2008
mk
