State Bank Of Patiala vs M/S Rohini Times & Others
2010 Latest Caselaw 5699 Del

 *            IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                       RFA No.180/1997

 %                                                14th December, 2010

 STATE BANK OF PATIALA                            ...... Appellant


                                     Through:     Nemo.
                         VERSUS

 M/S ROHINI TIMES & OTHERS                        .... Respondents

Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the 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?

VALMIKI J. MEHTA, J (ORAL)

1. By the present appeal under Section 96 of the Code of Civil

Procedure, 1908, the appellant-Bank challenges the impugned judgment and

decree dated 19.10.1996 whereby its suit for recovery of Rs.3,68,178.89

along with pendente lite and future interest was dismissed by the Trial Court.

The defendants/respondents were ex parte in the Trial Court and have also

not appeared in the present proceedings in spite of service by publication.

2. The Trial Court has dismissed the suit on the ground that the

documents have not been duly proved and also the main case. The relevant

para of impugned judgment is para 4 which reads as under:-

"I have heard the ld. Counsel for the plaintiff and perused the evidence led by pltff by way of affidavit as well as the documents filed by the plaintiff during the evidence, and I find that the evidence of Sh. R.K. Sagar cannot be taken into consideration in view of the fact that he has given his evidence only in a general way. Documents filed by the plaintiff have not been proved by this witness according to law. Moreover, regarding the statement of accounts he has given incomplete evidence. I also find that at the time of filing affidavit in the evidence, the plaintiff has also filed certain documents which have been exhibited and have been marked as P1 to P17. Since the witness has failed to prove the documents, therefore, his evidence cannot be taken into consideration. Moreover, besides that, the statement of accounts filed by the plaintiff has not been certified under the Banker's Book Evidence Act, therefore, the court cannot take any presumption also on the amount due against the defendants."

4. I find that the impugned judgment is totally illegal and perverse.

The appellant-Bank through its witness proved the execution of the

documents of availing of the facility, the statement of account etc but in

spite of the same, the suit has surprisingly been dismissed. The various

security documents along with the statement of accounts and the mortage of

the property were duly proved by documents `Exb.P1 to P17'. Though the

exhibit number of the statement of accounts was not mentioned in the

affidavit by way of evidence, the statement of accounts have also been

exhibited as `Exb.P12 and P13'. The appellant-Bank, therefore, had clearly

proved its case and, therefore, the suit ought to have been decreed, but

which was instead dismissed.

5. The impugned judgment and decree is, therefore, set aside and

the suit of the plaintiff-Bank for recovery of Rs.3,68,178.89 is decreed along

with simple interest at 17.5% per annum pendent lite and future till

realization with costs of the suit in the Trial Court as also the costs of the

present appeal.

Since the plaintiff has also prayed for a decree by sale of the

mortgaged property, the suit, in fact, is a suit under Order XXXIV CPC,

though the same has not so been mentioned. Accordingly, a preliminary

decree is passed in favour of the plaintiff and against the defendants thereby

granting time of six months to the respondents/defendants to pay the

decretal amount. In case the decretal amount is not paid within the

statutory period as specified under Order XXXIV CPC, the appellant/plaintiff is

given liberty to apply for final decree for sale of the mortgaged property.

In case the mortgaged property is not sufficient to recover the

decretal amount, then the decreetal amount can be recovered from sale of

the other assets of the respondents/defendants.

6. The appeal is accordingly disposed of as allowed. Let a decree

be drawn up. The Trial Court records be sent back.

CM No.8157/2005

Since the appeal has been disposed of, this application does not

survive and is disposed of as such.

DECEMBER 14, 2010                                VALMIKI J. MEHTA,J
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