Madras High Court
Canara Bank vs Sellapillai on 8 January, 2024
Author: R.Subramanian
Bench: R.Subramanian
APPEAL (CAD) NO.2 OF 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL (CAD) NO.2 OF 2023
Canara Bank
Perambalur Branch
Rep. By its Branch Manager
Having Office at Thuraiyur Main Road,
Perambalur Taluk, Perambalur District. ... Plaintiff / Appellant
Vs.
1.Sellapillai
2.Gowri
3.Vimala ... Defendants / Respondents
PRAYER: First Appeal filed under Section 13(1) of Commercial Act read
with 96 C.P.C., to set aside the decree and judgment dated 12.07.2022
passed by the Principal District Judge, Perambalur, in O.S.No.23 of 2020
(Filing No.OS/361/2020) (CNR No.TNPB010010272020) with costs.
For Plaintiff / Appellant : Mr.S.Kesavan
For Defendants / Respondents : Mr.Avinash Wadhvani
1/10
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The plaintiff in O.S.No.23 of 2020 is on appeal.
2.For convenience, the parties will be referred to as per their
rank in the Suit.
3.The Suit was laid by the plaintiff / Bank seeking recovery of
a sum of Rs.14,80,219/- with subsequent interest at 14.70% allegedly due
on a mortgage by deposit of title deeds dated 20.09.2005 created by the
defendants to secure a borrowing of a sum of Rs.3,20,000/- made by them
for purchase of a Tractor. According to the plaintiff, the loan was advanced
on 24.09.2005 and the defendants had agreed to repay the same with
interest at 10% per annum in 9 yearly instalments and the repayment was
commenced from 24.09.2006. However, the Loan Waiver Scheme was
brought in the year 2007 and a portion of the loan which remained unpaid
as on 09.07.2008 was waived as per the Scheme introduced by the Central
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
Government for waiver of agricultural loans. Contending that there was a
balance of about Rs.2,53,155/- on the said date and the same with accrued
interest had swollen to Rs.14,80,219/- the plaintiff sought for recovery of
the said amount.
3.1.The Suit was resisted by the defendants contending that
the entire loan was waived as per the Scheme and as such, they are not
liable to pay any amount. The claim of the Bank that the defendants had
executed acknowledgments of debt on 12.08.2008, 05.08.2011, 03.08.2014
and 28.07.2017 was specifically denied and those documents were termed
as false and concocted.
3.2.On the above pleadings, the learned Trial Judge framed
the following issues:
“1.Whether the plaintiff is entitled preliminary decree as prayed for?
2.Whether the suit loan was already waived in the year 2008?
3.To what other relief?”
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
3.3.The Manager of the plaintiff / Bank one Mr.Pradeepraja
was examined as P.W.1 and Exs-A.1 to A.19 were marked. First defendant
Mr.Sellapillai was examined as D.W.1 and Ex-B.1 was marked.
3.4.Upon consideration of the evidence on record, the learned
Trial Judge came to the conclusion that the entire loan was discharged and
as such, the Bank has no claim under the mortgage. Therefore, the Suit was
dismissed.
3.5.The learned Trial Judge did not go into the question of the
truth or falsity of the documents / acknowledgments of debt which were
marked as Exs-A.6 to A.9. Aggrieved by the said dismissal of the Suit, the
plaintiff is on appeal.
4.We have heard Mr.S.Kesavan, learned counsel appearing for
the appellant and Mr.Avinash Wadhvani, learned counsel appearing for the
respondents.
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
5.Mr.S.Kesavan, learned counsel appearing for the appellant
Bank would vehemently contend that the Trial Court was not right in
concluding that the entire debt was discharged. Ex-B.1 is the loan waiver
instrument. The learned counsel would submit that what was waived was
only the outstanding overdue as on 09.07.2008 i.e., a sum of Rs.,1,60,904/-
and the balance was treated as subsisting debt. He also claimed that the
defendants had executed Exs-A.6 to A.9 acknowledgments of debt and
therefore, according to the learned counsel, the claim of the defendants that
the entire loan was waived is incorrect.
6.Contending contra, Mr.Avinash Wadhvani, learned counsel
for the respondents would submit that a reading of Ex-B.1 would show that
what was waived was the entire debt and not a sum of Rs.1,60,904/- alone
as contended by the appellant Bank. He would also pointed out that though
a specific plea regarding the validity of the acknowledgments of debt
which were marked as Exs-A.6 to A.9 was taken in the written statement,
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
no attempt was made by the Bank to prove them by examining either the
persons who had signed as witnesses.
7.We have considered the rival submissions.
8.On the arguments of the learned counsel on either side, the
following points arise for determination in this appeal:
(i)Whether Ex-B.1 could be construed as waiver of the entire
loan outstanding.
(ii)Whether the appellant Bank has proved the
acknowledgments of debt marked as Exs-A.6 to A.9.
POINT NO.(i)
9.Ex-B.1 is the certificate issued by the Bank regarding
waiver of loan. Issuance of such certificate is not denied. It is contended
that what was waived is Rs.1,60,904/-, i.e., the debt which was not paid on
time. A reading of Ex-B.1, in our considered opinion, does not explicitly
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
state that what was waived is only a portion of the loan and the remaining
was outstanding. Clause – 2 of Ex-B.1 states the amount of loan not repaid
on time, which is shown as Rs.1,60,904/-. Clause 2(,) shows the amount
that is to be repaid up to 31.12.2007 as Rs.3,76,036/- and the same as on
29.02.2008 as Rs.3,80,192/-. Neither the Bank nor the defendants have
produced the Loan Waiver Scheme to enable the Court to decide as to what
would be the amount that could be waived by the Bank. In the absence of
any such records, we have to go only by Ex-B.1, which reads as follows:
2. chpa neuj;jpy; brYj;jg;glhj fld;fspd; +. 1,60,904/-
tptuk; (+ghapy;)
,) nkw;go fldpy;; ork;gh; 31/ 2007 md;W tiu +. 3,76,036/-
kPjKs;s gpg;uthp 29/ 2008 tiu jpUk;gr;
brYj;jg;glhj bjhif +. 3,80,192/-
10.In the light of said statement made in Ex-B.1, we are
unable to accept the contention of the learned counsel appearing for the
appellant Bank that what was waived is only a portion of the debt and not
the entire debt. Point No.(i) is answered accordingly.
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
POINT NO.(ii)
11.Learned counsel appearing for the appellant Bank would
fall back of Exs-A.6 to A.9 to show that what was waived was only a
portion of the debt and not the entire debt. He would point out that the
respondents / defendants had acknowledged the debt even after the date of
waiver namely 09.07.2008. We are unable to countenance the submission
of the learned counsel for the appellant Bank as the Bank has not ventured
to prove Exs-A.6 to A.9. As already stated that there is a specific denial of
execution Exs-A.6 to A.9 in the written statement.
12.In the light of the same, it is for the appellant Bank to
prove the execution of those documents by the defendants. The Bank has
not taken any steps for proving those documents by examining the person
who has signed as witness. Though D.W.1 who is a signatory to the
documents has been examined as defence witness, there is not even a
suggestion put to him that those documents were signed by the defendants
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
at the relevant dates. Not even an attempt has been made by the learned
counsel for the Bank to draw the attention of the witness to those
documents. In the light of the shoddy trial that has been conducted in the
Trial Court, we do not accept the contention of the appellant Bank that
Exs-A.6 to A.9 have been proved in accordance with law. In the absence of
such proof, we cannot take them as an acknowledgments of a subsisting
debt. Point No.(ii) is answered accordingly.
13.In the light of the above conclusions, we see no merit in
this appeal and the appeal fails and accordingly, it is dismissed. However,
there shall be no order as to costs in this appeal.
[R.S.M., J.] [R.S.V., J.]
08.01.2024
Index : No
Internet : Yes
Neutral Citation : No
Speaking Order
TK
https://www.mhc.tn.gov.in/judis
APPEAL (CAD) NO.2 OF 2023
R.SUBRAMANIAN, J.
AND
R.SAKTHIVEL, J.
TK
To
The Principal District Judge
Principal District Court
Perambalur.
APPEAL (CAD) NO.2 OF 2023
08.01.2024
https://www.mhc.tn.gov.in/judis
