RSA No. 1001 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M. No. 2929-C of 2009 and RSA No. 1001 of 2009 Date of decision: 15.5.2009 M/s Dhillon Plastic Industries and others … Appellants Versus Canara Bank and others … Respondents Present: Mr. V.K.Sandhir, Advocate, for the applicant-appellant. … ARVIND KUMAR, J: C.M. No. 2929-C of 2009 : For the cause shown in the application, delay of 12 days in filing the power of attorney of appellant No.2 with the appeal is condoned. CM stands disposed of accordingly. RSA No. 1001 of 2009: This is defendants’ second appeal directed against the judgment and decree of the Courts below whereby the suit of the plaintiff- Bank has been decreed. Plaintiff, Canara Bank, Branch Office Amritsar, in its suit pleaded that defendant No.1, namely, M/s Dhillon Plastic Industries, Amritsar, is a partnership concern consisting of defendants 2 to 5 and defendant No.6 predecessor-in-interest of defendant No.7, defendant No.8 as guarantor-cum-co-obligator and defendant No.10 is a party to the tripartite agreement. Defendant No.1 through defendants 2 to 5 on the guarantee of Balwant Singh, predecessor-in-interest of defendant No.7 (since Balwant Singh died on 15.9.1992) were granted over-draft cash credit facility of Rs.5,00,000/- and ILC limit of Rs.5,00,000/- as working capital of its business of manufacturing PVC pipes or dealing in plastic/rubber goods of all types. Various documents were executed by the defendants in RSA No. 1001 of 2009 2 favour of the plaintiff and in order to secure reimbursement of the loan, Balwant Singh, predecessor-in-interest of defendant No.7 stood as guarantor and mortgaged his property through delivery of sale-deed of his property to Manager of plaintiff-bank. Defendant No.1 through defendants 2 to 5 submitted fresh loan application on 9.4.1992 along with fresh guarantee letter from defendant No.6 for renewal of the existing facility, which was renewed and thereafter fresh documents were executed by the defendants and plaintiff-bank executed a tripartite agreement. Since the default in reimbursement of the loan amount was committed by the defendants, the present suit came to be filed. Upon notice of the suit, defendants 1 to 8 in their joint written statement denied the claim made by the plaintiff-bank. Defendants No. 9 and 10, parties to the tripartite agreement, in their joint written statement stated that defendant No.1 was sanctioned loan of Rs.12.37 lacs including assistance against subsidy of Rs.4.10 lacs and out of the said sanctioned loan, it availed loan of Rs.26 lacs in terms of mortgage- deed dated 9.5.1988. and in order to secure the loan, defendant No.1 mortgaged industrial plot along with building constructed thereon measuring 3000 square yards as per jamabandi for the year 1980-81. Defendants 9 and 10 averred that they are having first charge over the said property and are thus, entitled to receive their outstanding balance of Rs.68,35,963/- with future interest from 15.10.1997 and plaintiff-bank is having second charge and is entitled to receive this amount out of the sale proceeds after adjustment of their claim. Trial Court on appreciation of evidence adduced on record, vide judgment and decree dated 9.5.2008 decreed the suit of the plaintiff-bank and passed a preliminary decree in its favour and against defendants 1 to 8 for recovery of Rs.7,41,814/- with costs and pendente liite and future interest at the rate of 18.50%, as agreed by the said defendants, with quarterly rests. For repayment of loan, the liability of defendants 1 to 8 was held to be joint and several. However, the liability of defendants 7(a) to 7(f) was held limited to the extent of assets acquired by them from the estate of Balwant Singh. It was further held that a period of six months was being granted to defendants 1 to 8 to make the payment of the decretal amount failing which the preliminary decree would become final and the plaintiff-bank would be entitled to recover the decretal amount out of sale proceeds of mortgage property as well as hypothecated RSA No. 1001 of 2009 3 machinery and plants; however, the plaintiff-bank would have second charge over the mortgage property as well as hypothecated machinery and plant as defendant-Punjab Financial Corporation would have second charge over the same. Feeling aggrieved, defendants 1 to 8 filed an appeal before the first appellate Court wherein they did not lay challenge to their liability to pay the decretal amount and rather conceded that the said decretal amount is recoverable from them but took up the plea that the same could not be recovered by sale of mortgaged property as it was not mortgaged and even the mortgage-deed was not proved on record and only a photo-copy thereof was placed on record which according to them was not a sufficient proof for arriving at the conclusion that the property was actually mortgaged by them with plaintiff-bank for the purpose of securing reimbursement of the loan amount. The said appeal was however, dismissed by the first appellate Court vide judgment and decree dated 29.10.2008. Hence, the second appeal by the defendants. Both the Courts below on appreciation of evidence adduced on record have concurrently held that in support of the claim, the plaintiff-bank has produced on record various documents, the execution of which has been duly proved by examining bank officials. The defendants having availed of loan facility and executed various documents, evidentiary value is attached to those documents. The plea of the defendants that the mortgage-deed has not been proved on file since the original thereof was not produced in Court, has also been repelled by the Courts below by holding that the same has been duly got proved by the plaintiff-bank by examining PW-1 Vijay Kumar Sharma in whose statement it specifically finds mention that the original was brought by him and on seeing the original, the same was returned by the Court and that there is no cross- examination on this witness with regard to mode of proving the said document. Even otherwise, the plaintiff-bank also proved on record letter dated 20.1.1992 written by Balwant Singh for continuation of the mortgage- deed and the signatures of Balwant Singh on Exhibit P-41 stand duly identified by his son DW-1 Dhanwant Singh. The suit filed by the plaintiff- bank has rightly been decreed. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or RSA No. 1001 of 2009 4 are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed in limine. May 15, 2009 ( ARVIND KUMAR ) JS JUDGE