// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil First Appeal No.123/1994 {Ashok Kumar Vashistha and Another Vs. Union Bank of India} Date of Order ::: 09.04.2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.P. Garg, Counsel for defendant-appellants None present for plaintiff-respondent Bank #### By the Court:- Heard learned counsel for the appellants. Briefly stated, the facts of the case are that the plaintiff-respondent Bank filed a suit for recovery of a sum of Rs.1,24,959.65p. against the defendant-appellants, pleading therein that on 14th August, 1981 the defendant No.1 applied for a loan to purchase a matador, diesel passenger vehicle; on 9th September, 1981 the respondent Bank granted a loan of Rs.69,000/- to him; he failed to pay the due amount of loan to the Bank and a sum of Rs.1,24,959.65p. became due against him as on 20th March, 1990; the plaintiff-respondent Bank prayed that a decree of the said amount be passed in its favour with interest. The suit was contested by the defendant No.1 by filing a written-statement dated 23rd March, 1992. // 2 // The trial court framed eight issues on 6th October, 1993. The plaintiff examined PW-1 P.C. Chhabra and produced documentary evidence Exhibit-1 to Exhibit-17. No evidence - oral or documentary - was produced on behalf of defendants. The trial court, in view of the finding in respect of Issue No.3, decreed the suit of the plaintiff for a sum of Rs.57,720.95p., and rejected the plaint of the plaintiff-respondent Bank for the remaining amount; the trial court also awarded interest at the rate of 12.5% per annum on the decretal amount from 28th January, 1989 till the date of its realization. It was also directed that the matador vehicle will be attached and auctioned in execution proceedings and the amount to be received in auction proceedings will be adjusted against the decretal amount. Being aggrieved with the same, the defendants have preferred this appeal. The only contention urged on behalf of the defendant-appellants is that the trial court committed an illegality in not ordering for adjustment of the amount to be received by way of auction of the matador vehicle, which was seized by the plaintiff Bank on 15th November, 1984; it was a duty of the trial court to assess the valuation of the matador as on 15th November, 1984, and the adjustment should have been made // 3 // thereof against the total dues of loan amount, therefore, to that extent the decree of the trial court be modified. No one appears on behalf of the respondent despite service of notice. I have considered the submissions of the learned counsel for the appellant and examined the impugned judgment as well as the record of the trial court. During the course of arguments, the learned counsel for the appellants referred the finding of the trial court in respect of Issue No.3 to show that matador was surrendered by the appellants on 15th November, 1984 and it remained in possession of the respondent Bank, therefore, the amount equivalent to the valuation of the matador as on 15th November, 1984 should have been adjusted against the total due amount loan of the Bank. The loan of Rs.69,000/- was advanced to the defendant No.1 on 9th September, 1981 to purchase the matador vehicle; a sum of Rs.35,000/- was paid by the defendants from time to time; the required payment of due amount was not made, therefore, the matador vehicle was either seized by the plaintiff Bank or surrendered by the defendant himself on 15th November, 1984; the possession of the vehicle remained with the Bank; the Bank filed a suit for recovery of a sum of Rs.1,24,959.65p. The trial court, while deciding // 4 // Issue No.3, referred the documents Exhibit-10, Exhibit-12 and Exhibit-13, and also other oral and documentary evidence. Exhibit-10 is the letter written by the defendant No.1 Ashok Kumar to the Bank on 18th November, 1987, wherein the defendant No.1 admitted that he is ready to adjust the complete outstanding amount of Rs.57,320.95p. It was also mentioned in the letter that the vehicle was seized by the Bank on 15th November, 1984. A prayer was made by defendant No.1 Ashok Kumar that he is ready to adjust the complete outstanding amount of Rs.57,320.95p., and requested to get the interest element, specified earlier, waived. The plaintiff Bank, vide its letter dated 27th October, 1988 (Exhibit-12) replied to the defendant No.1 Ashok Kumar and accepted his proposal to settle the matter on a sum of Rs.57,320.95p., as offered by him. The Bank further wrote a letter/reminder (Exhibit-13) on 20th January, 1989 to the defendant No.1 Ashok Kumar asking him to deposit the accepted amount of Rs.57,720.95p., latest by 27th January, 1989, failing which request for waiver of the amount will not be considered and the Bank will initiate legal action against him. The trial court, after considering all the facts and circumstances of the case including that vehicle was surrendered on 15th // 5 // November, 1984 and having knowledge of this fact the defendant No.1 himself wrote a letter Exhibit-10 to the Bank to settle the matter for a sum of Rs.57,320.95p., decreed the suit on the basis of admission of the defendant No.1 himself for a sum of Rs.57,720.95p. in place of Rs.1,24,959.65p. So far as the submission of the learned counsel for the appellants that no order for adjustment of the valuation amount of the vehicle matador, which was surrendered before the Bank, has been given by the trial court, is concerned, it is clear from the operative part of the impugned judgment itself that the trial court has specifically observed that the plaintiff will attach and auction the vehicle matador and defendants will be entitled for adjustment of the said amount against the decretal amount. Thus, it is clear that the decree of the trial court is based on admission of the defendant-appellant No.1 himself and a reasonable order has also been passed in respect of vehicle, in dispute, therefore, I do not find any force in the submission of the learned counsel for the appellants. It is also relevant to mention that no evidence – oral or documentary – has been adduced on behalf of the defendant controverting his own document (Exhibit-10) or the valuation // 6 // of the vehicle as on 1984, and, in absence of any evidence on behalf of the defendants, the trial court was fully justified in deciding the Issue No.3. In view of the above discussions, I do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//