Karnataka High Court
A S Srinivasan vs The State Bank Of India on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30541
RFA No. 537 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.537 OF 2022 (RES)
BETWEEN:
A.S. SRINIVASAN
AGED ABOUT 82 YEARS
S/O LATE A.SINGA IYENGAR
PROPRIETOR
M/S. BHARAT CARBON COMPANY
C-69, II STAGE,
PEENYA INDUSTRIAL ESTATE
BENGALURU-560 058
RESIDING AT :
NO.110/A, "MYTRI ENCLAVE"
F.NO.302, 6TH MAIN
NANDAKUMAR LAYOUT
RAMANJANEYA NAGARA
BENGALURU - 560 061
...APPELLANT
Digitally (BY SRI A.S.SRINIVASAN, PARTY-IN-PERSON)
signed by
MALATESH
KC AND:
Location:
HIGH
COURT OF 1. THE STATE BANK OF INDIA
KARNATAKA CORPORATE OFFICE
4TH FLOOR,
STATE BANK BHAVAN
MADAM CAMA ROAD
MUMBAI -400 021
REPRESENTED BY ITS
MANAGING DIRECTOR
-2-
NC: 2024:KHC:30541
RFA No. 537 of 2022
2. THE STATE BANK OF INDIA
INDUSTRIAL ESTATE BRANCH
PEENYA, BENGALURU-560 058
REPRESENTED BY ITS
BRANCH MANAGER
3. MR. ASDHAR HOSSAIN
C/O KARNATAKA FOOTWEAR
21, SHOPING COMPLEX
IV BLOCK, JAYANAGAR
BENGALURU-560 011
...RESPONDENTS
(BY SRI NANDISH PATIL, ADVOCATE FOR R2;
R-1 SERVED AND UNREPRESENTED;
VIDE ORDER DTD.01.07.2024 NOTICE TO R3 IS
DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 15.12.2020 PASSED IN
O.S.NO.2114/2014 ON THE FILE OF THE VIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE
SUIT FOR DAMAGES.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri A.S.Srinivasan, appellant/party-in-person.
2. Present Regular First Appeal is filed challenging the
dismissal of O.S No.2114/2014 on the file of VIII Additional
City Civil and Sessions Judge, Bengaluru,(CCH-15) dated 15th
NC: 2024:KHC:30541
December, 2020, whereby suit of the plaintiff came to be
dismissed with costs.
3. Parties are referred to as plaintiff and defendants as per
their ranking before the Trial Court for the sake of convenience.
4. Facts of the case in brief, which are utmost necessary for
disposal of the present Regular First Appeal as under:
A suit in O.S.No.2114/2014 came to be filed by the
appellant herein with a prayer of declaration that the judgment
and decree passed in O.S No.10130/1985 dated 16th December
1995 to be cancelled and award damages in a sum of
Rs.1,00,00,000/- with 15% interest per annum.
5. Plaint averments reveal that second defendant/State
Bank of India had filed a suit in O.S No.10130/1985 seeking
recovery of a sum of Rs.3,86,082.35 on the basis of cash credit
loan and medium term loan obtained by the Firm by name
Bharat Carbon Company, a unit under Small Scale Industrial
Sector for carrying on the business of manufacturing and
marketing carbon brushes and electrical contacts.
NC: 2024:KHC:30541
6. It is alleged by the Bank that the appellant herein was
highly irregular in operation of accounts with the Bank and
violated the terms and conditions of grant of loan and failed to
maintain sufficient stock to cover advance sanctioned, and
initiated suit for recovery of money.
7. Appellant herein filed written statement in the said suit
and contested the suit. After due trial, O.S No.10130/1985
came to be decreed on 19.12.1995. Appellant herein preferred
an appeal before this Court in RFA No.232/1998 which came to
be dismissed by the judgment dated 19.06.2006.
8. Thereafter, appellant herein contended that there was a
fraud played on the defendants by the Bank and, Bank was
bound by the Deposit Insurance and Credit Guarantee
Corporation established under Section 3 of DICGC Act, 1961
and scheme framed therein was to help Small Scale Industry
which was not adhered to by the Bank and sought for
cancellation of the decree passed in O.S No.10130/1985
confirmed in RFA No.232 of 1998.
NC: 2024:KHC:30541
9. In pursuance of the suit summons, defendants failed to
appear before the Court and therefore, defendants 1 and 3
were placed ex-parte. Defendant No.2 engaged and advocate,
but failed to file any written statement.
10. Learned trial Judge thereafter recorded the evidence of
the plaintiff, who got examined himself as PW-1 and placed on
record as many as 175 documents which were exhibited and
marked as Exs P-1 to P-175.
11. Thereafter, learned trial Judge heard the argument of the
parties and raised the following points for consideration:
(i) Whether the plaintiff proves that the defendants have
obtained judgment and decree dated 16.12.1995 in
O.S.No.10130/1985 by playing fraud on the Court?
(ii) Whether the plaintiff proves that due to fraud played
by the defendants, he has sustained loss of
Rs.1,00,00,000/-?
(iii) Whether the plaintiff proves that he is entitled for
cancellation of judgment and decree dated 16.12.1995
in O.S.No.10130/1985 and damages of
Rs.1,00,00,000/- with interest at 15 percent per
annum as claimed in the plaint?"
12. After hearing the arguments and considering the oral and
documentary evidence placed on record, learned trial Judge
NC: 2024:KHC:30541
came to the conclusion that when once the challenge to
judgment and decree came to be dismissed and Judgment and
decree in O.S.No.10130/1985 was confirmed, a separate suit to
cancel the judgment and decree passed in the said
O.S.No.10130/1985 is impermissible and dismissed the suit of
the plaintiff.
13. Being agreed by the same plaintiff is before this Court in
this appeal on the following grounds:
"The Appellant submits that the Learned Judge of the
Court below erred in passing the Order dated 15th
December 2020 dismissing the Suit OS No.2114/2014
with cost merely assuming and presuming the defence
plea while the defendants remained exparte through-
out the suit proceedings by ignoring the volume of
evidence produced by the Petitioner in support of his
claim. It is heavily biased causing injustice to the
Petitioner.
The appellant submits that the learned Judge of the
Court below erred in passing the Order of dismissal of
the Suit OS No.2114/2014 while the defendants
remained exparte without controverting the claim
made by the Petitioner, although, under the
circumstances, the Plaintiff-Petitioner was entitled to a
decree in his favour on the basis of the facts stated in
the plaint are true, hence rendered injustice to the
Petitioner.
NC: 2024:KHC:30541
The appellant submits that the Learned Judge erred in
passing the Order dated 15th December 2020 ignoring
fraudulant acts of the Bank in non-disclosing the
scheme by which the Bank lured the Petitioner to set
up the Unit of small scale industry by taking risk, with
a view to obtain advantage amounts to fraud.
The appellant submits that the above scheme was
formed by the Bank in pursuance of the Government's
policies and programmes as proclaimed in SEC.11-B of
the INDUSTRIES (Development And Regulation) Act,
1954, which is lawful and Constitutionally valid.
The Appellant submits that the learned Judge failed to
understand the Guidelines issued by the Government
of India, Ministry of Industry (Department of Industrial
Development) on Bank Finance for Sick Industrial
Undertaking are in pursuance with the Sec.11-B of the
Industries (Development and Regulation) Act, 1951
which is lawfull and constitutionally valid and therefore
not mere guidelines to be ignored. Therefore, the
Banks must act accordingly.
The Appellant submits that the learned Judge failed to
understand the responsibilities of the Bank under the
Scheme, which was formed by the Bank itself to lure
the New Entrepreneurs like the appellant by
promising several facilities Including need based
financial assistance to undertake industrial pursuits
with no hazard, and after the Unit was set up incurring
lot of investments, the Bank refused proper Banking
services to the unit by providing timely and need
based financial assistance and then filed a recovery
NC: 2024:KHC:30541
Suit prematurely by making false and baseless
allegations which amounted to fraud on the Unit.
The appellant submits that the learned Judge erred in
passing the Order dated 15-12-2020, although he
could have investigated the claim made by the
plaintiff-Appellant Petitioner and found out whether
the terms and conditions applicable to any commercial
transactions were applicable to the loans granted to
SSI Units. The credit facility is covered under DICGC
Credit guarantee scheme.
The Appellant submits that the Court below failed to
understand the importance of imposing Social Control
on the Banks and financial institutions by the
Government of India through Act No.58 of 1968 by
amending the Banking Regulation Act, 1949, Reserve
Bank of India of India Act, 1934 and The State Bank of
India Act, 1955, for grant of loans and advances to
Small Scale Industries.
The Appellant submits that the Courts below have
erred in not understanding the malicious intent of the
DEFENDANT -RESPONDENT No.2 in filing the Suit OS
No.10130/85 on 7-2-85 by falsely claiming that the
loans granted to and obtained by the firm M/s BHARAT
CARE ON COMPANY, a Unit of Small Scale Industrial
Sector, was payable on demand contrary to the
conditions layed down in the "Small Loans (SSI)
Guarantee Scheme, 1981" of the DICGC.
The appellant submits that the Courts below have
erred in not understanding the malicious intent of the
NC: 2024:KHC:30541
DEFENDANT RESPONDENT No.2 in filing the
prematured suit OS No.10130/85 wilfully suppressing
the material facts about the loans granted to and
obtained by the firm M/s BHARAT CARBON COMPANY
Unit of Small Scale Industries, under the Bank's
Scheme called LIBERALISED SCHEME OF ASSISTANCE
TO SMALL SCALE INDUSTRY formulated by the Bank
under Bank's EQUITY FUND SCHEME FOR SMALL
SCALE INDUSTRY was fraud on Court.
The appellant submits that the Court below erred in
not understanding the malicious intent of the
DEFENDANT-RESPONDENT No.2 in filing the Suit OS
No. 10130/85 ON 7-2-1985 by suppressing the
material facts about a letter No.2782 dated 9/9/80 to
the appellant together with a copy of their brochure
giving details of their Scheme to lure the Petitioner to
set up a Small Scale Industrial Unit under the Bank's
EQUITY FUND SCHEME FOR SMALL SCALE INDUSTRY,
promissing several facilities and concessions to the
Unit under the Scheme.
The Appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT No.2 in filing the Suit OS
No. 10130/85 suppressing the material facts about
their EQUITY FUND SCHEME FOR SMALL SCALE
INDUSTRY consisting of two different Schemes for
Now Entrepreneurs inviting them to set up Small Scale
Industries taking advantage of their Schemes.
The Appellant submits that the Courts below have
failed to act Judiciously to know whether the Bank's
- 10 -
NC: 2024:KHC:30541
Scheme offered to New Entrepreneurs to take
advantage of Schemes to set up small industries was
lawful and not intended with ulterior moto to cheat the
small entrepreneurs.
The appellant submits that the Courts below erred in
ignoring the letters dated 6th October, 1981; 15th
February, 1982 and 28th April, 1982, forming part of
documents filed by the Petitioner on guidelines issued
by the Government of India, Ministry of Industries, for
financing sick industrial undertakings under the
provisions of The INDUSTRIES (Development &
Regulation) Act, 1951.
The appellant submits that the Courts below erred in
ignoring the guidelines and advises of the Government
of India, Ministry of Industry, to all the Commercial
Banks/Financial institutions under the letters dated 6th
October, 1981, 15th February, 1982, and 28th April,
1982, advising that there should be no соmplacency or
lack of efforts on the part of commercial
banks/financial Institutions to restore the sick Units to
a healthy State and exercise their commercial
judgement in time.
The appellant submits that the Courts below have
erred in understanding the malicious intent of
DEFENDANT -RESPONDENT No.2, suppressing the
facts about treating the dues of the firm as bad or
doubtful of recovery before invoking the guarantee
under the Small Loans (SSI) Guarantee Scheme,
1981.
- 11 -
NC: 2024:KHC:30541
The appellant submits that the Courts below have
erred in not understanding the malicious intent of the
DEFENDANT -RESPONDENT No.2 in filing the suit for
recovery without following the procedure laid down
under the Small Loans (SSI) Guarantee Scheme,
1981, and the conditions were to be complied with by
the Bank before invoking the Guarantee of the DICGC
before filing the recovery Suit OS No.10130/85 on
7.2.85.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT No.2 in suppressing the material facts
and documents pertaining to the small loans
(SSI)guarantee scheme 1981, introduced by the
deposit insurance and credit guarantee corporation,
established under section 3 of the DICGC Act, 1961 for
covering advances to SSI units with a view to ensure
continuity in the credit Guarantee Cover.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT No.2 in suppressing the material facts
and documents pertaining to the Agreement executed
between the Bank and the DICGC under the Small
Loans (SSI) Guarantee Scheme, 1981.
The appellant submits that the Courts below have
erred in understanding the malicious intent of the
DEFENDANT RESPONDENT No.2 in filing prematured
Suit OS No.10130/85 on 7-2-85 against the firm M/s
BHARAT CARBON COMPANY suppressing the material
facts and documents pertaining to the Credit facility.
- 12 -
NC: 2024:KHC:30541
Without disclosing it before hand and traping the unit
under debt.
The appellant submits that the Unit suffered loss of
Rs.1.87.408.05 due to faulty system adopted by the
Bank to provide working capital to the Unit under
credit facility on account of negligency on the part of
the Branch Manager in the observance of the
necessary safeguards and procedure in regard to
appraisal, supervision and follow-up of the account of
the Unit by the Branch Manager.
The appellant submits that the Courts below have
erred in understanding the milicious intent and
dishonesty on the part of the DEFENDANT-
RESPONDENT No.2 in taking decisions in contrary to
and in contravention of the instructions issued by the
Bank and the guidelines of DICGC in providing Credit
facility to the Unit under the Credit Guarantee
Scheme.
The appellant submits that the courts below erred in
understanding the malicious intent of the DEFENDANT-
RESPONDENT No.2 in filing the suit O.S.No.10130/85
by suppressing the facts and documents pertaining to
grant of working capital to the unit bit-by-bit on
weekly basis by following the system of Cash-Credit-
Cum-Loan which was found to be improper and
inappropriate in the case of this SSI Unit.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT No.2 in filing the Suit O.S.No. 10130/85
- 13 -
NC: 2024:KHC:30541
by suppressing the material facts and documents
pertaining to grant of working capital bit-by-bit on
weekly basis by following the system of Cash-Credit-
Cum-Loan linking to the Stock Statements submitted
periodically by the Unit which caused to the Unit to
suffer Cash loss of Rs.1,87,408.05 till 30-9-1983.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT No.2 in filing the Suit OS No. 10130/85
by suppressing the material facts and documents
pertaining to loans granted to obtained by the Unit
under the banks Scheme wherein the Bank had
promised financial assistance to the Unit on need basis
as and when required, under the Terms of finance
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT no.2 in filing the Suit in O.S
No.10130/85 suppressing the material facts and
documents pertaining to Schemes under which the
loans were granted to an obtained by the Unit in
which Bank had promissed several types of assistance
to SSI Units under terms of finance.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT no.2 in filing the Suit in O.S
No.10130/85 suppressing the material facts and
documents pertaining to Schemes under which the
loans were granted to an obtained by the Unit in
which Bank had offered several types of assistance
- 14 -
NC: 2024:KHC:30541
under "Working capital Finance to SSI Units setup by
new entrepreneurs.
The appellant submits that the Courts below erred in
not taking into consideration about the solemn
agreements executed between the Bank and the firm
on 12/2/82, under the said agreements the Bank
agreed to provide required financial assistance to the
Unit as per the Bank's Scheme and then acted in
contravention of the provisions of the Schemes.
The appellant submits that the Courts below erred in
understanding the malicious intent of the DEFENDANT
RESPONDENT no.2 in filing the premature Suit in O.S
No.10130/85 suppressing the material facts and
documents pertaining to loans granted to and obtained
by the firm M/s BHARAT CARBON COMPANY under the
New Scheme of DICGC called "Small Loans (SSI)
Guarantee Seheme, 1981, for covering advances to
SSI, with a view to ensuring continuity in the Credit
Guarantee Cover.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts and documents pertaining to Schemes under
which the loans were granted showing automatic
coverage of the loans granted to the firms under the
Credit Guarantee scheme of DICGC.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
- 15 -
NC: 2024:KHC:30541
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the facts about
the payment of Rs.1102.80 on 17/10/84 and
Rs.1271.15 on 10/12/84 made to DICGC as guarantee
fee from the Unit's Cash Credit A/c by debiting and
transfering to DICCC, and insurance premium of
Rs.517.00 by debiting the CC account.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts about collection of 1st and 2nd instalments of
Medium Term loan when it was due by debiting to the
Unit's Cash Credit A/c maintained with the Bank and
then transferring to the Bank's Term Loan A/c without
the prior knowledge of the Petitioner.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts about the Bank's intention to discontinue
collection of 3rd instalment and onwards of the Medium
Term Loan without any valid reason.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts about collection of interest on loans granted to
the firm M/S BHARAT CARBON COMPANY as and when
Cash accrued in the Unit's account as per the
- 16 -
NC: 2024:KHC:30541
provisions of the Scheme by debiting to the Unit's
Cash Credit A/c maintained with the Bank and
transfering to Term Loan account without prior
knowledge of the Petitioner.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts and documents pertaining to the Bank's
responsibility under the Credit Guarantee Scheme of
DICGC to ensure that the loss in respect of the Credit
facility granted to and obtained by the Firm had not
occurred on account of any negligence on the part of
the Branch Manager of the Peenya Industrial Estate
Branch, in the observation of the necessary safeguards
and procedure in regard to appraisal, supervision and
followup of the account of the Unit maintained with the
Bank, but the Bank acted in negligent manner causing
heavy Cash Loss to the firm.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts and documents pertaining to the Bank's
responsibility under the Credit Guarantee Scheme of
the DICGC to ensure that the loss in respect of the
Credit facility granted to and obtained by the Firm had
not occurred on account of dishonesty on the part of
the Branch Manager and owing to decisions taken by
him in contravention of the policies and guidelines
- 17 -
NC: 2024:KHC:30541
issued by the Government of India, Ministry of
Industry, and the instructions issued by the Bank and
the guidelines of DICGC under the Small Loans
Guarantee Scheme, 1981.
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the facts and
documents and prematurely invoking the guarantee
provided under Small Loans (SSI) Guarantee Scheme,
1981, of DICGC, while there were chances of nursing
back to health of the Unit under the Bank's own
proposal and IRCI Scheme proposed by the Chief
Manager (Finance), K.S.S.I.D.C.LTD.,
The appellant submits that the Courts below erred in
not understanding the malicious intent of the
DEFENDANT RESPONDENT no.2 in filing the premature
Suit in O.S No.10130/85 suppressing the material
facts and letters received by the Basic from the CHIEF
MANAGER (Finance) K.S.S.I.D.C.Ltd.. requesting the
DEFENDANT RESPONDENT No.2 to give consent to
conduct Appraisal of the Unit M/s BHARAT CARBON
COMPANY BY TECSOK, Directorate of Industries &
Commerce, Government of Karnataka, for nursing
rehabilitation of the Unit under IRCI scheme.
The appellant submits that the Court below erred in
dismissing the Suit OS No.2114/2014 ignoring the
material facts and documents filed by the Petitioner as
explained in paras 190 to 193 herein above to prove
that the DEFENDANT RESPONDENT No.2 have filed
- 18 -
NC: 2024:KHC:30541
premature Suit O.S No.10130/85 on false and
baseless grounds that there was high irregularity in
the operation of the account with the plaintiff bank by
misrepresentation and false representation
suppressing all material facts an documents to deceive
the Court to obtain judgement and decree in favour of
Bank which was fraud on Court and hence the
Judgement and decree passed on 16-12-95 in OS
No.10130 of 1985 in favour of the Bank was fraud on
Court and hence is to be set aside.
The appellant submits that the Court below erred in
dismissing the Suit OS No.2114/2014 ignoring the
material facts and documents filed by the appellant in
detail as explained in paras 201 to prove that the
allegation made by the DEFENDANT-RESPONDENT
No.2 in the OS No.10130/85 that "the second and
third defendants have further failed to maintain
sufficient stocks to cover the advance sanctioned" was
not true and therefore the judgment and decree
passed on 16.12.95 in O.S.No.10130/85 was obtained
by the Bank by playing fraud and hence it is to be set
aside.
The appellant submits that the Court below erred in
dismissing the Suit OS No.2114/2014 ignoring the
material facts and documents produced by the
appellant in detail as explained in para 203 to prove
that the allegation made by the DEFENDANT
RESPONDENT No.2 IN O.S.No.10130/85 that "the
second and third defendants have further failed to
route the sale proceeds of their business through the
- 19 -
NC: 2024:KHC:30541
accounts with the plaintiff bank" was not true and in
view of that the judgment and decree passed in
O.S.No.10130/85 on 16.12.95 was obtained by the
Bank by playing fraud and hence it is to be set aside.
The appellant submits that the Court below erred in
dismissing the Suit O.S.No.2114/2014 ignoring the
material facts and documents filed by the Petitioner as
regards to fraudulant acts of the DEFENDANT-
RESPONDENT No.2 in filing Application before the DRT
and obtaining a Recovery Certificate by playing fraud
as explained in paras 207 to 209 and in view of that
the Bank played fraud on Court and hence the
Judgement and Decree dated 16-12-95 passed in
O.S.No.10130/85 18 to be set aside.
The appellant submits that the Courts below have
erred in fulfilling their constitutional obligations to
uphold the rule of Law keeping in mind the principles
of natural justice in the interest of justice and equity
as the Custodian of Law.
Appellant submits that the Hon'ble Courts have heard
to Bank's evil thoughts only and passed judgement
and decree favouring the Bank. Denied the Appellant
right to equal protection of laws guaranteed under
Art.21 of the Constitution of India for every citizen
without any sort of discrimination.
Appellant approached Court after Court in succession
for justice diligently establishing the fraud of the Bank
beyond any reasonable doubt. The Hon'ble Courts in
- 20 -
NC: 2024:KHC:30541
succession failed to perform their duties to enforce the
promise made by the Bank to the Appellant in order to
uphold the sanctity of the contract which was entered
into by the Bank on 12-2-1982.
The Hon'ble Courts in succession have passed orders
in grave dereliction of duty and in flagrant abuse of
fundamental principles of Law and Justice to punish an
innocent. With intention to wriggle out the Bank from
its contractual obligations.
The Appellant submits that on the solemn promise
evidenced by the above mentioned documents, the
appellant incurred heavy expenses, suffered liabilities
to set-up the Unit and run it. Presumably, if the
Scheme had not been offered by the Bank, the
appellant would not have undertaken to set-up the
Unit with Bank's assistance. Acting on the promise of
the Bank the appellant proceeded to suffer further
liabilities to implement and execute the Unit to
manufacture and sale of Carbon Brushes by
approaching several buyers all over the Country and
got approval and registration as approved vendor. In
back drap of this incontrovertible fact situation, the
principle of promissory estoppal had come into play.
Under the circumstances there is a need for high level
enquiry into the whole affairs of the Suit to digout the
truth.
The Appellant submits that the Defendants 1 and 4 to
parties in this Appeal because the Defendant-1 is the
firm which is now a proprietory concern of the
- 21 -
NC: 2024:KHC:30541
Appellant. Defendant-4 and Defendant-5 are
deceased. Defendants 6 and 7 have withdrawn their
guarantee as the Bank played fraud on Court in filing a
prematured suit by making false and baseless
allegations against the Appellant after failing to
perform their contractual duties as per their scheme.
The Appellant submits that the Order dated 15- 15-12-
1995 granting judgement and decree for
Rs.8.67.454.05 in favour of the Bank in
O.S.NO.10130/85 was challenged in all the Courts of
Appeal by filing R.F.A.No.252/1998,
S.L.P.No.2594/2007, REVIEW PETITION (CIVIL)
No.914/2007 and then CURATIVE PETITION (C) No.37
of 2008, but none of those judges categorically said
any thing about the allegations and evaded direct
answers to my plea that the loans to this SSI Unit was
not payable on demand; Bank's refusal to perform
contractual obligations towards this SSI Unit as per
their scheme; Bank's failure to maintain sanctity of
their agreements to finance this SSI Unit; about the
cause of action to file the recovery suit prematurely by
falsely invoking the guarantee cover; Bank's intention
in refusing need based financial assistance to the Unit
as promised; Bank's failure to provide rehabilitation
assistance to the Unit under IRCI scheme. Like that,
several questions remained unanswered by the
Hon'ble Courts."
14. Sri Srinivasan/party-in-person reiterating the grounds
urged in the appeal memorandum vehemently contended that
- 22 -
NC: 2024:KHC:30541
the very suit filed by the Bank in O.S No.10130/1985
contending that plaintiff was due in a sum of Rs.3,86,082.35
itself is impermissible having regard to the fact that, what the
plaintiff obtained is, assistance under DICGC Act, 1961 which
was meant for Small Scale Industries.
15. Therefore, amount or financial assistance received by
plaintiff was not at all to be repaid, which has not been properly
considered by the learned Judge while decreeing the suit of the
Bank in O.S No.10130/1985 and as such he is entitled for
cancellation of the decree passed in O.S No.10130/1985 by a
duly constituted suit.
16. He further contended that the learned trial Judge did not
understand the scope of the suit in O.S No.2114/2014 and
wrongly dismissed the suit and sought for admitting the appeal
for further consideration.
17. Respondents in this appeal are served and respondent
No.2 has engaged the services of Sri Nandish Patil, Advocate,
who remained absent before the Court today.
- 23 -
NC: 2024:KHC:30541
18. Taking note of the arguments put forth on behalf of the
appellant, this Court perused the material on record
meticulously.
19. On such perusal of the material on record, it is crystal
clear that the plaintiff has suffered judgment and decree in O.S
No.10130/1985 and the remedy available to the plaintiff was to
appeal against the said judgment and decree under Section 96
of the Code of Civil Procedure.
20. In fact, plaintiff availed such a remedy by filing an appeal
before this Court in RFA No.232/1998. By considered judgment
dated 19th June 2016, said Regular First Appeal came to be
dismissed. Further remedy for the appellant/plaintiff lies
elsewhere against the said judgment and decree.
21. Instead of pursuing such a remedy, plaintiff has chosen to
file another suit in O.S No.2114/2014 seeking cancellation of
the judgment and decree passed by the duly constituted Court,
which is per se not maintainable in view of Section 34 of the
Specific Relief Act.
- 24 -
NC: 2024:KHC:30541
22. Such a declaration is unheard of and cannot be granted,
inasmuch as, decree granted by a Court cannot be annulled by
granting one more decree in another suit.
23. Under the circumstances, the judgment and decree
passed by the trial court which is appealed in the present
appeal does deserve to be admitted for further consideration.
24. Accordingly, the following:
ORDER
Appeal grounds are meritless and is hereby dismissed.
No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
