IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1704 OF 1990 SUIT NO. 1704 OF 1990 SUIT NO. 1704 OF 1990 New Bank of India, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, having its registered office at 1, Tolstoy Marg, New Delhi and its branch office at Kalbadevi Road, Bombay- 400 002. ... Plaintiff. V/s. ... 1. Smt.T.Sarojini Ammal, Indian Inhabitant, residing at "Shyama" - Plohana, Near Western Team, Arunachalam Cross Street, S.S.Colony, Madhurai - PIN 625 016. 2. Shri P. Ganpathy Pillai, Indian Inhabitant, residing at Usha Niwas, Lodge Block No.2, Gandhi Junction, Kizhkkerkara Kottarakkars, P.O. Kerala. ... Defendants. Ms.Sheetal Kumar i/b. Vyas & Bhalwal for the plaintiff. None for the defendants. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. DATED : 16th April 2008. DATED : 16th April 2008. DATED : 16th April 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff- New Bank of India ("Bank" for short) has filed this suit against the defendants for the recovery of their outstanding dues in the sum of Rs.6,86,131/- and also claimed future interest thereon from the date of suit till realisation. 2. The case of the plaintiff is that plaintiff- Bank had granted two financial facilities, namely, (i) Cash Credit/Pledge of Goods in the sum of Rs.1,50,000/- and (ii) Import Inland L/C on D.P.basis in the sum of Rs.1,50,000/- to one Shri Mohan Kumar, the sole proprietor of M/s.Traders India on 30th September, 1985. 3. The said Mohan Kumar expired before filing of the suit. Defendant Nos.1 and 2 are the mother and father of late Mohan Kumar. Hence the suit is filed by the plaintiff against defendant Nos.1 and 2 being parents of the deceased since they inherited the estate of their son late Shri Mohan Kumar. 4. In consideration of the aforesaid financial facilities granted by the plaintiff- Bank in favour of deceased Mohan Kumar, he had executed various loan documents in favour of the plaintiff- Bank, i.e. Demand Promissory Note, Letter of Continuing Security, Letter of Waiver, Letter of Credit and Agreement for - 3 - Pledge of goods all dated 4th October, 1985. 5. The plaintiff states that on account of sudden demise of of late Mohan Kumar, they by their advocate’s letter dated 3d February, 1987 brought the aforesaid fact to the notice of the defendants, the legal heirs of the deceased that the goods are pledged with them and called upon them to pay the amount of debit balance of Rs.15,63,762.07 with interest thereon from 3rd February, 1987. 6. The defendant No.2, by his advocate’s letter dated 28th February, 1987 informed the plaintiff that he was not aware of these financial facilities availed by his deceased son and requested to furnish necessary information. The defendant No.2 by his further letter dated 2nd March, 1987 requested the plaintiff’s advocate to take all legal actions as early as possible and clear all dues of his deceased son. 7. The defendant No.1 by her letter dated 2nd April, 1987 informed the plaintiff to make immediate arrangements to sell the stock-in-trade by public auction. She also gave her consent and informed the - 4 - plaintiff- Bank that nobody from their side would raise any objection to the plaintiff’s action and permitted the plaintiff- Bank to adjust their dues from and out of the sale proceeds that may be realised from the sale of stock-in-trade.l 8. On being asked by defendant No.1 about the FDRs opened by the deceased Mohan Kumar, the plaintiff- Bank by their letter dated 6th May, 1986 informed that the proceeds thereof were prematurely encashed and credited on 6th May, 1986 to his current account. The plaintiff states that, thereafter, by letter dated 15th April, 1989 the defendants sought detailed statement of the current account of the deceased but failed to pay outstanding dues of the plaintiff- Bank. 9. The plaintiff further states that in pursuance of the consent letter given by defendant No.1, Bank invited tenders on 21st August, 1987. After receiving 11 tenders, the plaintiff- Bank sold the pledged goods to the highest bidder one Shri Sharad M. Mutha for a sum of Rs.14,65,822.50. The plaintiff, accordingly, by letter dated 12th March, 1988 informed the - 5 - defendants about disposal of pledged goods with details thereof and called upon them to pay the said balance amount of Rs.1,94,355.03 so as to close their account. The plaintiff again by their letter dated 6th May, 1989 forwarded the copies of entire account of late Mohan Kumar to the defendants though, according to them, the same was already submitted to them on 22nd April, 1987. The defendants once again, by their letter dated 28th May, 1989 asked for some clarifications which were furnished by the plaintiff vide letter dated 30th June, 1989. On 13th October, 1989 and 5th December, 1989, the plaintiff again called upon the defendants to pay the balance amount of Rs.1,94,355.03. 10. The plaintiff states in spite of repeated requests, demands and reminders defendants failed and neglected to pay the balance amount of Rs.1,94,355.03 with interest. The plaintiff, ultimately, by their advocate’s letter dated 16th February, 1990 again called upon the defendants to pay the said balance amount with interests. The plaintiff states that the defendants are bound and liable to pay the dues of the Bank as per the statement of accounts annexed to the - 6 - plaint and claimed that on the date of filing of suit the amount due and payable by the defendants was in the sum of Rs.6,86,131/-. The plaintiff has, therefore, filed this suit for recovery of their outstandings due and recoverable from the defendants. 11. On being served with writ of summons, defendant Nos.1 appeared and filed her written statement denying her liability. Defendant No.1 pleaded in defence that the suit filed by the plaintiff is barred by limitation. So far as the documents are concerned, she has denied execution and correctness thereof and contended that the signatures were obtained by the plaintiff on blank documents and were filled in subsequently. That deceased Mohan Kumar died intestate leaving behind no assets or properties or estate and that she has not received any estate from him as such the defendants as heirs and representatives of late Mohan Kumar are not liable to pay the outstanding to the plaintiff- Bank. That in spite of repeated requests the details of fixed deposit receipts were not furnished to them. She further contended that the sale of goods suffers from irregularity and that she was not given any - 7 - particulars with regard to the auction sale. She, therefore, contended that the defendants are not liable to pay the suit claim as prayed by the plaintiff. As such, she prayed for dismissal of the suit with costs. 12. Considering the rival pleadings of the parties, issues were framed vide order dated 10th September, 2007, reading as under: (1) Whether the plaintiffs prove that Defendants are liable to pay to plaintiff an amount of Rs.6,86,131.00 as per particulars of claim being Exh."L" to the plaint? (2) Whether the plaintiffs prove that the defendants being the legal heirs of deceased borrower, are liable to pay the Decretal amount to the plaintiff for sanction of Credit Facility of C.C.(Pledge) and Inland L/C? (3) Whether the plaintiffs prove that amount of fixed deposit in the name of deceased borrower was properly appropriated by the plaintiffs? (4) Whether the plaintiffs prove that the Deceased who was the sole proprietor of M/s.Traders India, had enjoyed the facility of C.C. (Pledge) and had executed the documents on 4.10.85? (5) Whether the Plaintiffs prove that the pledged stocks were auctioned by inviting sealed tenders after publication in local newspaper and realised amount of auction sale and adjusted to its dues? (6) Whether the defendants prove that the suit is barred by law of limitation? - 8 - (7) Whether the defendants prove that the documents have been obtained in blank and filed subsequently by the plaintiffs? (8) Whether the defendants as heirs and legal representatives, prove that they are not liable to pay to the plaintiff the decretal amount as the deceased has not left any assets or property? (9) Whether the defendants prove that sale of movables suffers from irregularity and sold at through away price? (10) What order and decree? 13. The plaintiff was directed to file affidavit of evidence and documents since burden to prove issue Nos.1 to 5 was on the plaintiff. 14. Pursuant to the aforesaid order, the plaintiff has filed affidavit of one Shri Vinayak B. Patil, Manager of Kalbadevi Branch dated 22nd November, 2007 in lieu of evidence in support of suit claim. He along with his affidavit has produced as many as 35 documents including extracts of accounts duly certified under the Bankers Books Evidence Act. All these documents are proved by the plaintiff through the affidavit of Shri Vinayak B. Patil. Shri Patil also entered the witness box and verified his affidavit, who deposed on the basis of record that the - 9 - promissory note dated 4th October, 1985 and D.P. Note were executed by deceased Mohan Kumar. All these documents were taken as proved. 15. Since nobody appeared for the defendants the evidence led by the plaintiff- Bank went unchallenged. Consequently, issues Nos.1 to 5 of which burden to prove lies on the plaintiff, has been proved by the plaintiff as such the same is answered in favour of the plaintiff- Bank. In view of the Supreme Court judgment in the case of State Bank of India v. Yumnam State Bank of India v. Yumnam State Bank of India v. Yumnam Gouramani Singh, Gouramani Singh, Gouramani Singh, AIR 1994 SC 1644, oral evidence is a good corroboration under section 34 of the Indian Evidence Act to prove claim based on accounts. So far as issue Nos.6 to 9 are concerned, the burden of which was on the defendants. The defendants neither cross-examined the plaintiff’s witness nor adduced any oral or documentary evidence in support of their defence. The defendants failed to prove that the suit is barred by limitation and that they are not liable to discharge their liability towards the plaintiff- Bank as claimed in the suit. Under these circumstances issues Nos.2 to 6 are answered against - 10 - the defendants. With the result, plaintiff is entitled to a decree in terms of the suit claim with slight modification of rate of future interest on the decretal amount which has to be at the prevailing rate of bank interest. Hence the following order: ORDER (i) The suit is decreed. (ii) The defendants do pay jointly ad severally Rs.6,86,131/- with interest thereon @ 10% per annum from the date of suit till payment or part payment thereof with costs. (iii) Decree be drawn in terms of this order. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)