1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.7 OF 1990 Vijayraj s/o Rajsekhar Naidu, age major, occupation business and owner of shop known and styled as "M/s Vijay Tyre Works" Sadar Bazar, Jalna. ..appellant defendant versus Central Bank of India, a body Corporate established under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its head office at Chandrakukhi, Nariman point, Bombay-21 and a branch office inter alia at Bezonji Road, respondent/ Jalna. plaintiff. 2 ---- Smt. Asha S. Rasal, Advocate, for the appellant. Shri V.G.Gangapurwala, Advocate, for respondent. Coram: P.R. Borkar J. Date : Aug. 12, 2009. Oral Judgment 01. This second appeal is preferred by original defendant, being aggrieved by the judgment and decree passed by Second Joint Civil Judge, Junior Division, Jalna, in Regular Civil Suit No.374 of 1978 decided on 24.8.1982 which judgment and decree is further confirmed by learned First Appellate Court, in Regular Civil Appeal No.9 of 1983 decided on 17.10.1990. 02. Some of the facts admitted and borne out from the evidence on record are that, the present appellant had taken term loan of Rs.8,000/= and open loan of R.10,000/= from Respondent-bank. He had taken advance of Rs.10,000/= as capital for 3 his tyre-moulding business. He entered into transaction with bank on 2.12.1969 and mortgaged with bank his house bearing No.91/1 situated at Sadar Bazar, Jalna and executed a mortgage deed on 2.12.1969. He also executed a demand promissory note for Rs.10,000/= on 3.12.1969 and also hypothecation deed on the same day thereby hypothecating the machinery. He also executed renewal of hypothecation deed on 1.12.1972 and in December 1975. On 1.3.1978, the respondent-bank issued notice to the appellant, demanding the dues to the tune of Rs.15,763.71 ps. Present appellant replied the notice and thereafter suit was filed. 03. Learned Civil Judge framed the issues at Exh.31, recorded evidence and ultimately decreed the suit directing the appellant to pay to the respondent an amount of Rs.15,763.71 ps. with interest at the rate of 15 per cent per annum from the date of suit with further interest at the same rate from 20.9.1982 till realisation of the amount. The said judgment and decree is confirmed by the learned Additional District Judge which is 4 impugned in the present appeal. 04. While admitting this second appeal on 12.1.1990, no substantial question of law was framed. However, after hearing learned Advocates for both sides, it appears that the main substantial question of law that arises in this matter is; "Whether the respondent-bank was negligent in not properly insuring the hypothecated goods and, therefore, it was responsible for loss causes to the appellant ?" 05. This issue is canvassed before me mainly by learned counsel for the appellant and answered by the respondent. It is submitted by Advocate Smt. Rasal that as stated by the appellant at Exh.56, the insurance of the hypothecated goods was made through the bank and on 2.1.1971 there was explosion in the boiler of the factory and entire factory, including machinery was damaged 5 and therefore appellant sustained loss of Rs. 35,000/=. Immediately after the incident, the bank officials visited the factory and they sent a telegram to the insurance company. The Insurance Surveyor visited the factory and told Vijayraj that the insurance policy was defective and he could not help. Ultimately amount of Rs.4,300/= was paid towards insurance claim. 06. So far as evidence of Vijayraj is concerned, the trial court and the first appellate court have referred to clause 5 of the hypothecation deed (Exh.49) which reads; "5. The Borrowers shall at their own expense keep the hypothecated goods in good condition and keep the same insured in the names of the Bank and the Borrowers against fire and also, if required by the Bank, against riots and civil commotion with some insurance office approved by the bank for the full market value of such goods and shall 6 deliver to the Bank the policy or policies for such insurance and the receipts for the premia paid therefor. If the Borrowers shall fail so to keep the hypothecated goods insured as aforesaid or to deliver the policy or policies or the receipts for premia to the Bank, the bank shall be at liberty, but not be bound, to effect the said insurance in the Bank's own name and to debit to the said Cash Credit Account all expenses incurred by the Bank for so doing. All moneys received under any such insurance shall be employed in or towards satisfaction of the moneys secured by the hypothecated goods. " 07. Thus, as per the hypothecation deed, it was the duty of the appellant to insure the hypothecated goods and take care of the same. It is not even remotely suggested that the bank officials were negligent and due to their fault damage was caused. If there was any defect in the 7 policy and because of that claim only for Rs. 4300/= was allowed, the appellant ought to have led evidence to that effect. Appellant's mere interested statement to that effect is not sufficient and independent evidence should have been brought by him to show that even the Insurance Surveyor, who immediately inspected the factory, had estimated damages of more than Rs. 4,300/=. Ordinary presumption would be that the claim would be satisfied by the insurance company as per the terms and conditions of the policy and actual damage suffered. 08. Learned First Appellate Court has considered above aspect in details and observed that even after explosion in the factory and damage suffered and payment of Rs.4300 as insurance claim, the appellant never took up the matter with any authority and claimed compensation from the insurance company more than the amount granted to him. Secondly, the appellant executed a renewal for hypothecation agreement and other documents in the years 1972 and 1975. So, 8 if really there was any fault of the bank and loss was for more than Rs.4300/=, the appellant ought to have taken up the matter with appropriate authority. In any case, there is no sufficient evidence to establish the defence of the appellant. The First Appellate Court observed that the appellant cannot be heard to say that he had simply signed the documents already filled in. While signing the documents, he ought to have taken due care. 09. In the circumstances, in my opinion, the defence of alleged defect in the insurance policy is not proved. It is not that the bank officials failed in discharging their duty and appellant suffered loss on account their failure. It may be noted here that no counterclaim or set off claim is made. The defence taken by the appellant is not sustainable on merits. 10. It is argued by Advocate Smt. Rasal that the appellant is a handicapped person and therefore some concession in interest rate be 9 given. However, it may be noted here that almost 40 years are over after the explosion. The suit was filed in 1978 and thus almost 30 years have elapsed after filing of the suit. In the meantime the appellant might have suffered some disability. But, it does not appear that during last 30 years any amount is paid to the bank by the appellant and, therefore, no concession as prayed by Advocate Smt. Rasal can be granted. 11. No interference is called for in this second appeal and the same is therefore dismissed. In the circumstances, parties to bear their own costs. pnd/sa7.90 (P.R.BORKAR, J.)