-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 2679 OF 1993 Bank of Maharashtra. ..Plaintiff. Versus Kandhar Dairy And Ors. ..Defendants. Mr. Tushar Bhavsar i/b Vinody Mistry & Co., for the plaintiff. Coram : R. V. MORE, J. Date : March 2, 2010. P. C. : 1. This suit is filed under the provisions of Order-XXXVII, Rule-2 of the Code of Civil Procedure, 1908 for recovery an amount of Rs.5,69,881/-. The defendants are served with the writ of summons alongwith true copy of plaint. Service affidavit to that effect is also filed. Despite this nobody appears on behalf of the defendants. 2. The plaintiff is a body corporate constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Defendant no.2 is the sole proprietor of defendant no.1 firm and defendant no.3 is a guarantor. In the month of March 1983 the defendants requested the plaintiff to grant the cash credit facility in the sum of Rs. 2 lcas to which the plaintiff agreed. On 22nd March 1983 the defendant nos. 1 & 2 signed following documents. -: 2 :- (i) Letter of application. (ii)Letter of Proprietorship. (iii)Joint and several demand promisory note for the sum of Rs 2 lacs agreeing to pay interest at 5% over prevailing bank rate with a minimum of 15 p.a. with quarterly rests. (iv)Letter of continuing security and (v)Lien on (bills) by the defendants concerning the said facility. 3. In the year 1986 the plaintiff, on the request of the defendant nos. 1 & 2, extended the cash credit facility to them in the sum of Rs.2 lacs. On 14th March 1986, defendant nos. 1 & 2 executed following documents in favour of the plaintiff. 1. Letter of application. 2. Letter of proprietorship. 3. Joint and several demand promisory note for the sum of Rs 2 lacs agreeing to pay interest at 7.5% over prevailing bank rate with a minimum of 17.5% p.a. with quarterly rests. 4. Letter of continuing security. 5. Letter of lien 6. Power of attorney. 7. Agreement of the said facility. 4. Defendant no.3 also executed letter of guarantee in favour of the plaintiff on 14th March 1986. 5. On 11th March 1989 defendant nos. 1 & 2 signed, executed and delivered to the plaintiff a letter of acknowledgment of liability inter alia confirming having executed various documents concerning the said loan account. Again on 4th January 1992 defendants executed another letter of confirmation concerning the said loan account and inter alia admitting and confirming having executed various documents concerning the said loan -: 3 :- account. 6. By the letter dated 2nd December 1992, defendant nos. 1 & 2 confirmed the loan transaction, however, requested to accept Rs. 4 lacs as full and final settlement of the said loan account. The plaintiff thereafter by its letter dated 15th January 1993 showed their willingness to settle the matter if the defendants pay an amount of Rs. 5,10,033.75 paise towards full and final settlement. However, defendants did not reply this letter. Therefore the present suit is filed. 7. I am satisfied that the suit is maintainable under the provisions of Order-XXXVII, Rule-2 of the Code of Civil Procedure, 1908. Defendant nos. 1 & 2 have admitted their liability in various letters. The guarantee given by defendant no.3 is continuing guarantee. 8. I have gone through the original documents tendered by the plaintiff, namely, 1. Copy of Letter of application dated 22nd March 1983 2. Copy of Letter of Proprietorship dated 22nd March 1983. 3. Copy of joint and several demand promisory note dated 22nd March 1983. 4. Copy of Letter of continuing security dated 22nd March 1983. 5. Copy of Lien on bills dated 22nd March 1983. 6. Copy of Letter of application dated 14th March 1986. 7. Copy of Letter of Proprietor ship dated 14th March 1986 8. Copy of Joint and several demand promisory note dated 14th March 1986 9. Copy of Letter of continuing security dated 14th March 1986 10.Copy of Letter of Lien dated 14th March 1986 11.Copy of Power of attorney dated 14th March 1986 12.Copy of the agreement dated dated 14th March 1986 13.Copy of the letter of guarantee dated 14th March 1986 14.Copy of letter of confirmation dated 11th March 1989. 15.Copy of letter of confirmation dated 4th January 1992. -: 4 :- 16.Copy of Letter by defendant nos. 1 & 2 to the plaintiff dated 2nd December 1992. 17.Copy of the letter by plaintiff’s advocate dated 15th January 1993. 9. The documents support the averments made in plaint. Even otherwise also since the defendants have not contested the suit by putting their appearance despite due service, the averments made in plaint by the plaintiff are deemed to have been accepted by the defendants in the light of provisions of Order-XXXVII, Rule-2(3) of the Code of Civil Procedure, 1908. The plaintiff is, therefore, entitled to decree for recovery of an amount of Rs.5,69,881/-. The plaintiff is also entitled for interest @ 12% p.a. on the above sum from the date of suit till realisation of the decreetal amount. (R.V. MORE, J.)