1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION SUIT NO. 504 OF 1999 Dena Bank, Govandi (East) Branch. .... Plaintiff. V/s. M/s. Kri Trades & Ors. .... Defendants. ....... Mr. Pravin Patel i/b. Pradip Shukla & Co. for the Plaintiff. None for the Defendants. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 6TH FEBRUARY 2008. P.C. :- The suit has been instituted for the recovery of an amount of Rs.1,85,654.97 together with interest. The First Defendant is a proprietary firm of which the Second Defendant is a sole proprietor. The Third and Fourth Defendants have been sued as guarantors. 2 The Plaintiff sanctioned a cash credit hypothecation facility to the First and Second Defendants in May 1993. The limit of the facility was increased on 3rd May 1995 to Rs.1.50 lakhs. In consideration thereof, the First Defendant executed a promissory note dated 3rd May 1995. The First and Second Defendants executed a letter of continuing security and an agreement of hypothecation. The Third and Fourth Defendants executed a letter of guarantee on 3rd May 1995. The First and Second Defendants have acknowledged their liability on 30th September 1997. Despite an Advocate's notice dated 12th February 1998, no repayment has been made of the outstandings. Counsel appearing on behalf of the Plaintiff has stated during the course of the hearing that though the First and Second Defendants have so agreed, as a matter of fact, no equitable mortgage was created by deposit of title deeds. A decree has, therefore, been sought in terms of prayer clause (a). 3 The Defendants have been served with the writ of summons. No written statement has been filed. An affidavit of service has been filed and the suit has been transferred to the list of undefended suits. The Plaintiffs have sought the permission of the Court to rely upon secondary evidence. An affidavit has been filed on behalf of the Plaintiffs explaining the circumstance in which leave has been sought to lead secondary evidence. It has been stated that the original documents were destroyed on 26th July 2005 in the course of the heavy rains that took place in Mumbai. Having regard to these circumstances, permission is granted to lead secondary evidence. The Plaintiffs have relied upon an affidavit in lieu of examination in chief of their witness and a compilation of the documents. The statement of account has been duly certified under the Bankers Books of Evidence Act, 1891. The Defendants having failed to enter appearance, the claim of the Plaintiffs has remained to be controverted. 4 The suit shall accordingly stand decreed in terms of prayer clauses (a) and (h), with the modification that the Plaintiffs would be entitled to interest at the rate of 9% per annum on the principal sum from the date of the suit until payment or realization. ------