// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Civil First Appeal No.113/1991 Mali Ram Son of Shri Kalu Ram Sharma ...Defendant-Appellant Versus State Bank of India, Beawar Branch District Ajmer through its Manager ...Plaintiff-Respondent AND Shri Banshilal S/o Shri Mahadev Yadav & Another ...Defendant-Respondents Date of Judgment ::: 03 rd January 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Sita Ram Chaudhary and Shri Ramaotar Sharma Shri Krishna Kumar Chhawal and Shri Ram Babu Sharma, Advocates for Shri S.R. Surana, Counsel for defendant-appellant Shri Madan Lal Natani, Counsel for respondent Bank By the Court:- Heard learned counsel for the parties. This first appeal on behalf of the defendant No.1 under Section 96 of the Code of Civil Procedure, is directed against the impugned judgment and decree dated 27th February 1991 passed by the Additional District & Sessions Judge, Beawar, in Civil Suit No.69/1996, whereby the suit filed by the plaintiff-respondent No.1 Bank for recovery of a sum of Rs.1,92,206.55p. has been decreed with interest at // 2 // the rate of 11.85% per annum with effect from 1st August 1986 till the date of realization of the amount. Briefly stated the facts of the case are that the plaintiff-bank filed a suit on 05.08.1986 for recovery of a sum of Rs.1,97,206.55p. against the defendant-appellant as well as defendant-respondents in the trial court wherein it was pleaded that defendant No.1 applied for loan on 10th December 1980 to purchase a truck. A sum of Rs.1,57,000/- was sanctioned as loan by plaintiff-bank on 27.02.1981. The necessary documents including agreement for loan etc. were executed. The defendants No.2 and 3 were guarantors. It was also pleaded in Para 10 of the plaint that the defendant No.1 accepted the dues of medium term loan for a sum of Rs.1,89,910.51p., as on 30.12.1985, and gave a duly signed balance-confirmation-letter on 18.02.1986. The defendant No.1 filed his written statement wherein the contents of the plaint were not admitted in the manner as pleaded. It was pleaded that the then Manager of the plaintiff-bank got some signatures of defendant No.1 on blank papers; the defendant No.1 does not know English language and no document was read-over to him in Hindi. It was also pleaded that the suit was barred by limitation and the so-called documents with the respondent-Bank are not properly stamped, therefore, the suit is liable to be dismissed. // 3 // The defendants No.2 and 3 also filed their separate written-statements praying therein that the suit of the plaintiff-Bank be dismissed. On the basis of the pleadings of the parties, the learned trial court framed 24 issues. Thereafter, the plaintiff, in support its case, examined PW-1 G.H. Azwani, PW-2 Durga Prasad and PW-3 Kan Singh, and also produced documentary evidence Exhibit-1 to Exhibit-27. The defendants examined D1/DW-1 Mali Ram, D1/DW-2 Gordhan Lal and D3/DW-1 Banshi Lal. The learned trial court, after hearing both the parties and considering evidence on the record, decreed the suit of the plaintiff against all the three defendants jointly and severally for a sum of Rs.1,92,206.55p. with cost and simple interest at the rate of 11.85% per annum with effect from 01.08.1986, till the date of realization of the amount. Being aggrieved with the same, the present appeal has been preferred on behalf of the defendant No.1. The learned counsel for the appellant made threefold submissions – first is that the then Manager of the plaintiff Bank was not examined in the case therefore in absence of his statement, the suit was liable to be dismissed; second that the rate of interest agreed in between both the parties on the loan amount was at the rate of 4.65% per annum and not at the rate of 11.85% as awarded // 4 // by the trial court; and, third is that the suit was barred by limitation as the loan was taken on 27.02.1981 whereas the present suit was filed on 05.08.1986, therefore, suit ought to have been dismissed being barred by limitation. He therefore, contended that the trial court committed an illegality in decreeing the suit of the plaintiff, hence this appeal be allowed, the impugned judgment passed by the trial court be set-aside and plaintiff's suit be dismissed. The learned counsel for the respondent No.1 Bank has supported the impugned judgment of the trial court and prayed that there is no merit in any of the contentions of the learned counsel for the appellant and the present appeal be dismissed. I have considered the submissions of learned counsel for both the parties and minutely scanned the impugned judgment as well as the record of the trial court. So far as the first submission of the learned counsel for the appellant about non-examination of the then Manager Satish Chand Jain is concerned, it is relevant to mention that there was specific issue framed by the trial court in this regard as to whether Shri Satish Chand Jain was the Bank Manager and Chief Officer of the plaintiff- Bank and whether he was fully competent and authorized to initiate the present proceedings of the suit. Issues No.5 and 6, both, were decided in favour of the plaintiff and // 5 // against the defendants. The trial court, while considering the Issues No.5 and 6, referred the statement of PW-3 Kan Singh, the Branch Manager of Beawar Branch of the plaintiff-Bank, who stated that Satish Chand Jain had been working since December 1984 and he proved the signature of Satish Chand Jain. He also stated that he has been working in the same Branch since August 1984 as Regional Officer. A copy of Notification, whereby Satish Chand Jain was appointed, was also placed on the record and the trial court took the same into consideration by taking judicial notice of Notification. From the statement of PW-3 Kan Singh and the Notification the trial court recorded a finding that Satish Chand Jain was Manager of the plaintiff-Bank. Although the learned counsel for the appellant argued the case at length, but he could not point out any illegality in the said finding of the trial court in order to make out a case for interference therein by this Court. After considering the submissions of learned counsel for both the parties and examining the record of the trial court, I do not find any illegality in the finding of the trial court in respect of Issues No.5 and 6. I further find that there is overwhelming evidence in support of plaintiff's case and non-examination of Satish Chand Jain is not fatal to plaintiff's case. The trial // 6 // court, while decreeing the suit, has considered oral and documentary evidence, hence plaintiff's suit can not be dismissed for the reason that Satish Chand has not been examined on behalf of the plaintiff. So far as the second submission of the learned counsel for the appellant regarding rate of interest is concerned, I do not find any force therein for the simple reason that Exhibit-2, the agreement for medium term loan, was placed on the record by the plaintiff-Bank and Para 3 thereof clearly states that borrower shall also pay interest at the rate of 4.65% below the State Bank Advance Rate, minimum 11.85% per annum rising and falling therewith calculated respectively on the daily balance of the amount due subject to enhancement as hereinafter provided. Para No.3 of the agreement reads as under:- “3. The Borrower shall also pay interest at the rate of 4.65% below the State Bank Advance Rate, minimum 11.85% per annum rising and falling therewith calculated respectively on the daily balance of the amount due subject to enhancement as hereinafter provided.” The above condition of the agreement clearly speaks that the minimum rate of interest was 11.85%. Reference of 4.65% made in the agreement was given only for the purpose // 7 // that the Borrower shall pay interest at the rate of 4.65% below the State Bank Advance Rate but subject to minimum 11.85% per annum. In these circumstances I do not find any merit in the contention of learned counsel for the appellant and the same is liable to be rejected. So far as the last submission of the learned counsel for the appellant regarding delay in filing the suit is concerned, it is relevant to mention that the loan in the present case was advanced on 27.02.1981 and the suit was filed on 05.08.1986. Exhibit-14 is the statement of account showing the deposit of installments of loan amount by defendant No.1 from time to time. Exhibit-27 dated 24.03.1982 is the acknowledgment of loan amount by the defendant No.1. Exhibit-25 dated 28.08.1984 the revival letter, and Exhibit-26, dated 18.02.1986, the confirmation letter by defendant No.1 of due amount of loan, are also available on the record. The learned trial court has considered the submission of learned counsel for the defendant No.1 in this regard in detail while deciding Issues No.15, 16 and 19, and, after considering the evidence in detail, has rightly recorded a finding against the defendants. The submission of learned counsel for the appellant is that he never written a letter dated 24.03.1982 Exhibit- 27 and he did not deposit Rs.12,000/- and in case this // 8 // document is disbelieved then Exhibits 25 and 26 are of no consequence as the same were written after expiry of period of limitation and, as such, the plaintiff's suit is liable to be dismissed being barred by limitation. I have examined Exhibit-27 minutely and a bare perusal of it shows that it was written by the defendant No.1 in his own handwriting on 24.03.1982 in response to a letter from the Bank dated 01.03.1982. He also gave reason in it for not depositing the installments of loan amount in time that his vehicle was not working properly. He has also mentioned that he has deposited Rs.12,000/- today i.e. 24.03.1982. He further promised to deposit Rs.6,000/- per month towards due loan amount. I have also considered the document Exhibit-14, the statement of loan account of defendant No.1 which clearly shows that there is entry of deposit of Rs.12,000/- on that date i.e. 24.03.1982. I further find that Exhibit-25, the revival letter, was signed by the defendant No.1 on 28.08.1984 and Exhibit-26, the confirmation letter of its due amount of loan, was signed on 18.02.1986, and the present suit was filed on 05.08.1986. Documents Exhibit-14, Exhibit-27, Exhibit-25 and Exhibit-26 are very well proved from the statement of plaintiff's witnesses and I do not find any reason to disbelieve Exhibit-27. These documentary evidence are corroborated with other documentary evidence including Exhibit-9 and Exhibit-10. // 9 // In view of the above discussion, I find that the loan was advanced on 27.02.1981, but it was acknowledged on 24.03.1982 while depositing the amount of Rs.12,000/-, against the loan amount. It was further acknowledged by revival letter dated 28.08.1984 Exhibit-25 and confirmation letter dated 18.02.1986 Exhibit-26, and, in these circumstances, I find that the suit was filed within the period of limitation, and the learned trial court was right in deciding the Issues No.15, 16 and 19 in favour of the plaintiff. There is no illegality in the finding of the trial court in this regard warranting any interference by this Court. In view of the aforesaid discussion, I do not find any merit in any of the contentions of the learned counsel for the appellant. The appeal, being devoid of merit, is hereby dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman// S.No.S-H-4