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. 757 OF 1990 Ratnakar Bank Limited, a Scheduled Bank, constituted, established and functioning under the Companies Act, 1956, having its head office at Kolhapur and amongst other branches a branch office at Kandivli (West), Bombay - 400 067. ... Plaintiff. V/s. 1. M/s.PLASTO PACK, a proprietoryship concern of Mr.Yuvaraj Kanwarraj Gulati, carrying on business at 6-A, Indu Park Co-op. Housing Society, Four Bungalows, Andheri (West), Bombay- 400 058. 2. Yuvaraj Kanwarraj Gulati, an Indian Inhabitant, Proprietor of Defendant No.1, carrying on business at 6-1, Indu Park Co-op. Hsg. Society, Four ... Defendants. Bungalows, Andheri (West), Bombay- 400 058. Y.V.Divekar with Ms.G.V.Bhagwat i/b. M/s.Divekar & Co. for the plaintiff. G.K.M. Nair for the defendants. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 9th January 2008. DATED: 9th January 2008. DATED: 9th January 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff is a schedule bank. The defendant No.1 is a proprietorship concern of which defendant Nos.2 is a proprietor. The plaintiff filed suit for recovery of its dues against the defendants. According to the plaintiff, defendants were sanctioned Cash Credit Limit of Rs.3.5 lakh for which the Demand Promissory Note dated 17th August, 1985 was executed by the defendants in favour of the plaintiff- Bank. The deed of hypothecation dated 17th August, 2985 hypothecating the stock of raw material and finished goods and deed of mortgage of property dated 14th August, 1985 mortgaging the bungalow at Andheri (West), Mumbai and few other documents were also executed by the defendants in favour of the plaintiff- Bank. An amount of Rs.7,61,798.68 was due and recoverable from the defendants for which the present suit has been filed by the plaintiff- Bank. 2. On being summoned, defendants appeared and filed their written statement duly signed by the proprietor of defendant No.1- firm; wherein the execution of promissory note and deed of mortgage whereby residential bungalow has been mortgaged as a - 3 - collateral security has been admitted by the defendants. The contention is raised in the written statement that the loan amount sanctioned was in the sum of Rs.5 lakh whereas only Rs.3.50 lakh were disbursed by the plaintiff- Bank and, therefore, the defendants have suffered heavy losses since the total financial facility was not released by the plaintiff- Bank. Perusal of the written statement would show that virtually the case of the plaintiff- Bank has been admitted by the defendants. Even the execution of loan documents, such as promissory note and deed of mortgage has also been admitted by the defendants. It is also alleged in the written statement that the proposal for compromise was given but it was not accepted by the Bank. 3. With the aforesaid pleadings on record, the issues were framed, reading as under: (i) Whether the plaintiff proves that cash credit facility to the extent of Rs.3,50,000 was sanctioned to the defendants? Yes. (ii) Whether the plaintiff proves that the defendants executed Promissory Note, Cash Credit Agreement, Deed of Hypothecation, Deed of Mortgage and Letter of Acknowledgment of liability as averred in the plaint? Yes. (iii) Whether the plaintiff proves that the sum of Rs.7,61,798.68 - 4 - with 19.58% interest per annum quarterly rests from the date of the suit till payment is due and payable by the defendants? Yes. (iv) Whether the defendants prove that the plaintiff Bank had sanctioned financial assistance for Rs.5,00,000/- but the plaintiff Bank disbursed only Rs.3,50,000/-, thereby non-disbursal of Rs.1,50,000/- (i.e. 30%) of sanctioned loan amount thereby causing hardship? No. (v) Whether the defendants prove that the suit is barred by limitation? No. (vi) What relief? As per the final order. Evidence : Evidence : Evidence : -------- -------- -------- 4. After framing of issues, the matter was set for evidence. Before commencement of evidence, the parties were directed to complete the process of admission and denial of documents which they had not done by the time issues were framed. Later on, the defendants have admitted promissory note dated 17th August, 1985 and the copy of letter dated 2nd August, 1985, i.e., sanction letter issued by the plaintiff- Bank to defendant No.1. Consequently, these two documents were executed as Exh.P-1 and Exh.P-2 on admission. - 5 - 5. The plaintiff tendered evidence by way of affidavit of evidence in support of suit claim duly sworn by Prakash Jeenadatta Bogar, who has deposed in consonance with the plaint pleadings and has proved all the documents produced by the plaintiff- Bank. The affiant was also examined in the open Court so as to enable the defendants to cross-examine him. Accordingly, he was cross-examined by the leaned counsel for the defendants. Almost all loan documents were shown and used by the learned counsel for the defendants to cross-examine the plaintiff’s witness. Apart from the fact that the documents proved by the plaintiff through affidavit their proof was further reiterated by the learned counsel for the defendants by showing and using those documents to the plaintiff’s witness. The agreement of hypothecation dated 17th August, 1985 whereby the defendants agreed to create mortgage in terms and conditions thereof was exhibited as Exh.P-5. The deed of hypothecation dated 17th August, 1985 was marked Exh.P-6. The acknowledgment dated 1st August, 1998 was exhibited as Exh.P-7 and the registered notice issued by the plaintiff- Bank dated 17th March, 1985 demanding outstanding dues was exhibited as Exh.P-8. Consideration and Findings : Consideration and Findings : Consideration and Findings : - 6 - -------------------------- -------------------------- -------------------------- 6. So far as other documents are concerned, they were proved by the plaintiff- Bank and came to be exhibited. So far as deed of mortgage is concerned, it is no doubt true that only copy of the mortgage deed is produced on record without producing original mortgage deed or certified copy thereof on record. Therefore, the said document could not be treated as proved document. As a matter of fact, the said agreement is not admissible in the evidence. However, in the written statement the defendants have admitted execution of mortgage deed. The plaintiff’s pleading in this behalf reads as under: "7. The Plaintiffs say and submit that the Defendant No.2 vide a Deed of Mortgage of Property dated 14.08.1985 mortgaged his Bunglow on Plot No.6-A, Indu Park Co-op. Housing Society Ltd., Andheri (West), Bombay 400 058 as a collateral security in favour of the Plaintiffs. The Plaintiffs further submit that the said Deed of Mortgage of Property dated 14.08.1985 has been registered with the Sub-Registrar of Assurance at Bombay vide Sr.No.2860 dated 14.08.1985. The Plaintiffs crave leave of this Hon’ble Court to refer and rely upon the said Deed of Mortgage of Property dated 14.08.1985 and Registration Receipt dated 14.08.1985 issued by the Sub-Registrar of Assurance when produced. In reply to the aforesaid plaint pleadings, written statement reads as under: - 7 - "7. The contents of para 7 only that much is admitted that the said property is mortgaged as collateral security for the purposes of sanctioned loan amount of Rs.5,00,000/- (Rupees Five Lacs only). The reading of the aforesaid rival pleadings would indicate complete admission of having executed deed of mortgage and the details of the property mortgaged to secure the outstanding dues of the bank. 7. The extract of account duly certified under the Bankers Book Evidence Act is already on record. The same is proved not only by the plaintiff but the same is used by the defendants in cross-examination. Consequently, in view of law laid down by the Apex Court in the case of Ram Janki Devi v. M/s.Juggilal Ram Janki Devi v. M/s.Juggilal Ram Janki Devi v. M/s.Juggilal Kamlapat Kamlapat Kamlapat, AIR 1971 SC 2551, the said document stood proved and was exhibited as Exh.P-9. Exh.P-9 gives clear picture of the operation of the account and the outstanding dues in the sum of Rs.7,61,798.68. 8. In the aforesaid view of the pleadings and the documentary evidence available on record, I have no option but to decree this suit on the basis of the evidence lead by the plaintiff. - 8 - 9. At this juncture, it will be relevant to note that the defendant No.2 has also entered in the witness box and admitted having availed cash credit facility of Rs.3.50 lakh. Only evidence lead by him with respect to interest was that the amount of loan was to carry interest at the rate of 17% per annum. This plea cannot be accepted being contrary documentary evidence and banking practice. He has also admitted the outstanding dues in the sum of Rs.7,61,798.68 on the date of suit. At this juncture, it is relevant to note that the plaintiff’s witness khans stated in his evidence in para-5 that the bank had sanctioned total financial facility in the sum of Rs.5 lakh out of which Rs.3.5 lakh was by way of cash credit facility, whereas balance Rs.1.5 lakh was bill discounting facility. The defendant No.1 did not avail bill discounting facility. Hence suit is for recovery of amount due in cash credit facility account. No evidence is brought on record by the defendants to contradict or disprove this evidence of the plaintiff- Bank. 10. With the aforesaid quality of evidence on record, I hold that the plaintiff has proved issue Nos.1, 2 and 3, whereas the defendants have failed to prove issue No.4. The suit is well within time limit from the dates of execution of promissory note - 9 - and acknowledgement. As such issue No.5 relating to limitation has to be answered in favour of the plaintiff and against the defendants. Hence the following order: ORDER . The defendant Nos.1 and 2 do jointly and severally pay Rs.7,61,798.68 with interest on the decretal amount i.e. suit claim calculated thereon from the date of suit till payment or part payment thereof at the rate of 12% per annum with costs and the suit stands decreed in terms of prayer clauses. . Decree be drawn in terms of this order. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)