IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 124 of 2001. Date of decision: 27.8.2009 M/s.Anand Enterprises & ors. …. Appellants Versus State Bank of India. ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri Ramakant Sharma, Advocate. For the respondents: Sh.K.D.Sood, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular First Appeal is directed against the judgment and decree dated 26.3.2001 passed in Civil Suit No.3-CS/1 of 2000/1998 by the learned District Judge, Sirmaur at Nahan, whereby a decree of Rs.2,14,721.80 paise with interest at the rate of 14.5% per annum from the date of filing of the suit has been passed in favour of the plaintiff and against the defendants. A decree has also been passed for sale of land mortgaged with the Bank. Briefly stated the facts of the case are that the defendants were sanctioned a loan of Rs.1,76,000/- on cash credit limit by the plaintiff-Bank on 25.4.1994 against the hypothecation of goods. They agreed to re-pay the 2 loan amount alongwith interest @ 0.5% above the State Bank of India advance rate subject to minimum of 15.5% per annum with quarterly rests. Defendant No.1 is a proprietorship concern owned by defendant No.2. The defendants No.3 and 4 stood guarantee for repayment of the loan amount vide Guarantee Deed Ex.P/6. Admittedly their liability is joint and several with that of the principal borrowers. Promissory note Ex.P/4 executed by the defendants No.1 and 2 and endorsed by the defendants No.3 and 4 evidences the advance of the amount of cash credit limit. Balance Confirmation Letters Ex.P/8 and P/9 were executed on 24.12.1996 and 9.1.1997. From the evidence on record, it is evident that the defendants No.1 and 2 had availed of the cash credit facility but did not repay the amount in time and as per the statement of accounts Ex.PW1/A and PW1/B, the amount due and payable at the time of filing of the suit was Rs.2,14,721.80 paise. On the evidence led by the parties, the learned Trial Court decreed the suit. Sh.Ramakant Sharma, learned counsel for the appellant has urged that the decree has been passed by mis-reading the documents in question and reasonable opportunity was not given to the defendants to lead 3 evidence. It has also been argued that under the provision of Order 34, CPC, the sale of the mortgaged property could not have been ordered without granting time of six months for the repayment of the loan amount. I have gone through the record of the Trial Court including the documents on record. The documents clearly prove that the cash credit facility was granted to the defendants No.1 and 2. They availed of the same and did not repay the loan amount. It also stands proved on record that defendants No.3 and 4 stood guarantee for repayment of the loan amount. In fact, the Mortgage Deed Ex.P/2-A clearly shows that defendant No.3 mortgaged his property to secure the repayment of the loan amount. After going through the record, I find that the learned Trial Court has properly considered the entire evidence. On 16.4.2009 this Court had ordered that the status position qua the mortgaged property be ascertained. The status position has been ascertained. According to Sh.K.D.Sood, learned counsel for the Bank the mortgaged property has still not been sold and an amount of Rs.4 lac is due as per the terms of the decree. An affidavit has been filed by the Branch Manager of the 4 State Bank of India, Taruwala, District Sirmaur stating therein that in case judgment debtor(s) still want to have one time settlement, he may submit a proposal of the State Bank of India, Taruwala with the approval of the Assistant General Manager, State Bank of India, Zonal Office, Shimla and the same shall be considered in accordance with law. I find no merit in the appeal and the same is accordingly rejected. However, while disposing of the appeal, I direct that the decree shall not be executed and the mortgaged property shall not be sold for a period of three months from today to enable the appellants- defendants to approach the Bank for one time settlement. It is made clear that if one time settlement is not arrived at within three months, the Bank shall be free to execute the decree and sell the mortgaged property. The appellant shall bear the costs of litigation throughout. August 27, 2009 ( Deepak Gupta ) (m) Judge