FIRST APPEAL No. 64 OF 1989 Against the judgment and decree dated 16.08.1988 passed by Sri Ram Narayan Singh, Sub Judge Katihar in Money Suit No. 1 of 1984. PRAVIR SUKH LAL DAGLI @ PRAVIN CHANDRA SUTHLAL DAGLI ………. Defendant/Appellant Versus STATE BANK OF INDIA AND ANOTHER ……… Plaintiffs/Respondents ******** For the Appellant : Mr. Sanjay Kumar, Advocate. For the Respondents : None ________________________________________________________ Dated : 19th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant has filed this first appeal against the judgment and decree dated 16.8.1988 passed by Sri Ram Narayan Singh, the learned Sub Judge, Katihar in Money Suit No. 1 of 1984 decreeing the plaintiff respondent No.1’s money suit. 2. The plaintiff respondent No.1 i.e. State Bank of India filed Money Suit No.1 of 1984 for a decree for Rs.60,250.66 paise. The plaintiff’s case in short is that the defendant carry on business for agricultural spare parts, pumping sets etc. and being in need of pecuniary assistance approached the plaintiff and the plaintiff Mungeshwar Sahoo, J. -2- sanctioned loan advance under Cash Credit Scheme of Rs.20,000/- on execution of the required documents on 7.3.1975. The defendant No.2 stood as guarantor. The cash credit account was opened in the name of defendant No.1. The defendant No.1 withdrew money and operated the said cash credit account. The further case is that the defendant No.1 did not repay the amount and, therefore, the outstanding in the cash credit account together with interest came to Rs.60,250.66 paise on 31.10.1983. The plaintiff repeatedly remanded the defendant to pay the outstanding dues and finally a lawyer’s notice was issued demanding the outstanding on 25.6.1982 but the defendant neglected to pay, therefore, the suit was filed. 3. The defendant No.1 appeared and filed a written statement. The main defence is that the suit is barred by limitation. The defendant was given to understand by the plaintiff that the rate of interest is 11% per annum. The loan advance of Rs.20,000/- and opening of cash credit account were admitted by the defendant. The defendant also admitted the fact that he failed to repay the dues. 4. On the basis of the above pleadings of the parties the learned court below framed six issues, which are as follows : “(i) Is the suit as framed maintainable ? (ii) Is the suit barred by law of limitation ? (iii) Whether the defendant was intimated about the details of the term and condition of agreement ? (iv) Whether the rate of interest is 11% per annum as mentioned in the W.S. or 14% per annum above State Bank of India, advance rate with minimum of 14% with monthly rests as mentioned in the plaint ? (v) Is the plaintiff entitled to get a decree of the amount as claimed in the plaint ? -3- (vi) Any other relief or reliefs for which the plaintiff is entitled to ?” 5. After considering the evidences available on record the learned court below found that the suit is not barred by law of limitation and that the defendant has not adduced any evidence in support of his contention about the rate of interest and, therefore, decreed the plaintiff’s suit. 6. The learned counsel for the appellant Mr. Sanjay Kumar submitted that the agreement was signed on 7.3.1975 and the suit has been filed in the year 1984, therefore, the suit is barred by law of limitation. The learned counsel next submitted that in fact the defendant was made to understand by the plaintiff that interest @ 11% per annum will be charged but in this case the plaintiff charged 14% at monthly rests and, therefore, the learned court below could not have decreed the plaintiff’s suit. The learned counsel further submitted that the appellant was dealing with agricultural spare parts and pumping sets which are directly connected with the agriculture and, therefore, in fact the loan was an agricultural loan. In such circumstances, the plaintiff could not have charged the interest on monthly rests because in agricultural loan the banks are required to charge interest on yearly basis. In support of his contention the learned counsel relied upon a decision reported in 1999 (3) PLJR 227 Jainath Prasad Vs. State of Bihar and others. On this ground the learned counsel submitted that the impugned order so far it relates to granting of interest @ 14% is concerned is liable to be set aside. 7. In spite of service of notice nobody appeared on behalf of the respondents at the time of hearing of this appeal. 8. In view of the above fact the point arises for consideration in this appeal is as to whether the plaintiff’s suit is bared by law of -4- limitation and whether the plaintiff could have charged the interest @ 14% on monthly rests. 9. The learned counsel Mr. Sanjay Kumar submitted that the agreement between the plaintiff and defendant was signed on 7.3.1975 and the suit has been filed in the year 1984 but the learned court below held that the suit is not time barred. So far this submission is concerned I find no force because limitation will not run from the date of signing of the deed of agreement. From perusal of the record it appears that the revival letters were issued by defendant No.1 on 6.2.1978, 2.7.1981. The guarantor also issued revival letters on the said dates. Ext. 9 is dated 30.6.1981 which is a balance confirmation by the defendant. From perusal of the same it appears that the defendant No.1 confirmed that Rs. 43,278.73 paise is due on 30.6.1981 to be paid by him. The suit has been filed in January 1984 and therefore, it is within three years. I therefore find that the suit is not barred by law of limitation. 10. So far the next contention of the learned counsel for the appellant that it was an agricultural loan is concerned also I find no force because nowhere he was dealing in agriculture. It is specifically mentioned in the plaint that he is a businessman and sells the agricultural spare parts, pumping sets etc. Therefore, the appliances relating to agriculture was being sold by the defendant and, therefore, the defendant had no direct connection with the agriculture. In other words he was not a farmer. The farmers were purchasing the appliances/machines from him. I therefore, find that the loan advanced by the bank was not an agricultural loan and the defendant was not a farmer. 11. From perusal of the decision relied upon by the appellant i.e. Jainath Prasad (Supra) it appears that in that case the defendant -5- had taken loan for purchasing tractor and, therefore, in that case it was held that the loan was agricultural loan. 12. In view of the above facts as the loan advanced to the appellant in this case is not an agricultural loan, the decision relied upon by the appellant is not applicable in this case. So far the submission that the defendant appellant was made to understand that only 11 % interest will be charged is concerned it appears that no evidence was adduced on behalf of the appellant. Therefore, only on the basis of submission no inference can be drawn. However, from perusal of the record it appears that the plaintiff has produced D.P. note Ext. 1 and agreement of cash credit scheme Ext. 6 wherein it is clearly mentioned that the interest was half percent above Reserve Bank of India, advance rate and minimum 14% per annum with monthly rests. The witness i.e. PW-3 has stated that all the documents were prepared and executed in presence of the defendant No.1 and the defendant No.1 has also signed in English and, therefore, it cannot be said that he did not understand the effect and implication of the deed of agreement Ext.6. 13. In view of the above facts the contention of the defendant is without any basis. I therefore, find that the respondent charged the agreed rate of interest which is not barred under any law as the transaction was commercial transaction. 14. In view of my above discussions, I find no merit in this appeal. This first appeal is accordingly, dismissed. The parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 19th January, 2011 S.S./N.A.F.R.