IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3313 of 2009(O&M) Date of Order: 23.10.2009 Babu Ram and Others ....Appellants Versus Ambala-Kurukshetra Gramin Bank and Others .....Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Vineet Chaudhary,Advocate, for the appellants. * * * SABINA,J.(Oral) Plaintiff filed suit for recovery of Rs.87,563/- which was decreed by the Civil Judge(Sr.Divn.), Ambala, vide judgment and decree dated 23.10.2008. In appeal, the same was dismissed by District Judge, Amabla vide judgment and decree dated 20.04.2009. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower Appellate Court in paras 2,3 and 4 of its judgment read as under: "2. In brief, plaintiff filed suit with the allegations that defendants no.1 to 4 approached for a loan of Rs.1,25,000/- for purchase of tractor on 05.04.1994. Considering their request, the loan of Rs.1,25,000/- was sanctioned and in consideration of disbursement of loan, defendants no.1 to 4 executed Demand pronote dated 17.5.1994 for Rs.1,25,000/-, repayment undertaking dated 17.5.1994, term loan agreement dated RSA No.3313 of 2009(O&M) ..2.. 17.5.1994 and agreements dated 17.5.1994. Defendants no.5 and 6 stood guarantors for due repayment and executed Deed of Guarantee. Defendants agreed to pay interest at the rate of 14% per annum with half yearly rests and further agreed that in case of default in payment of instalments they shall pay 2% penal interest. The loan amount was repayable in half yearly instalments of Rs.2,000/- each commencing from December,1994. Defendants No.1 to 4, as colateral security for repayment of the amount, mortgaged their land situated in the revenue estate of Village Mirzapur and executed Deed of Mortgage. It was stated that defendants did not adhere to the financial displine and committed default in their obligations for due repayment of instalments. Defendants confirmed debit balance of Rs.95,574/- as on 30.3.1997. Defendants did not regularize the account. Sum of Rs.87,563/- was stated to be due from defendants on the date of suit. Despite notice payment being not made, plaintiff came up with the suit for recovery of the amount by sale of mortgaged security. 3. On notice being issued, defendants appeared and contested the suit. Defendants no.1 to 4 in their joint written statement raised preliminary objections regarding maintainability of suit, estoppel, suit being false and frivolous, cause of action, submitting that the amount stood paid as per entries in the pass book of the defendants and thus, no amount was due and that the suit was based on suppression and concealment of facts with a view to shelter their officials Mr. Lehna and Mrs. Lehna, both of whom RSA No.3313 of 2009(O&M) ..3.. having committed fraud with the public in connivance with their other staff and other high ups. It was stated that the officials of the bank by playing foul collected original pass book from the defendants and original receipt for deposit of the amount on the pretext that some inquiry was pending. It was thus stated that the suit was not maintainable as no amount was due. On merits, the authority to file suit by Ashok Kumar Rana on behalf of bank was denied. A false and frivolous suit was stated to have been filed by an incompetent person. Raising of loan was not denied. It was, however, submitted that the entire amount stood paid. It was further submitted that defendants collected the pass book and other original receipts by playing fraud upon the defendants. It was denied that defendant No.5 and 6 stood guarantors or that the guarantee was continuing. Since defendants had repaid the amount and there were entries in the pass-book, thus defendants have intentionally retained the original pass-book and have only supplied photo-stat copy of the pass-book, a criminal case was registered against some officials of the bank. It was denied that defendants no.1 to 4 mortgaged their land in any manner. It was submitted that plaintiffs obtained signatures of defendants on blank papers and some filled up forms and the mortgage deed was stated to have been typed by manipulations. Alternatively, it was submitted that repayment being made, the mortgage stood redeemed. Submitting that fraud has been played by officials for which Mr. Lehna and others were liable and claiming that nothing was due, dismissal of suit was prayed. RSA No.3313 of 2009(O&M) ..4.. Additional plea was raised that though a stray entry of Rs.27,926/- was shown on 05.11.1998, which amount was also paid thus, at the most plaintiff could only sue for this amount. 4. Defendants no.5 and 6 filed their separate written statement raising preliminary objections regarding maintainability of suit, suit being false and frivolous, cause of action, suit being based on suppression and concealment of facts in order to benefit the guilty officials of the bank who were being prosecuted and some officials of the bank collected pass-book and original receipts on false pretext of some inquiries and thereafter, never returned. On merits, competency of Ashok Kumar Rana to file suit was denied. Loan amount, if any, raised by defendants no.1 to 4 was stated to have been paid and entries stood made in the pass-book and original receipts have been collected by officials of the bank. It was denied that defendants no.5 to 6 stood guarantors for defendants no.1 to 4. Denying their liability, dismissal of suit was prayed." On the pleadings of the parties, the following issues were framed by the trial Court: i) Whether the suit has been filed by a duly authorized person? OPP ii)Whether the plaintiff bank is entitled to recover any amount from the defednant. If so, how much? OPP. iii) Whether defendants no.1 to 4 have already been made the payment of loan amount? OPD iv) Whether the signatures of the defnednats were obtained on blank papers, if so, its effect? OPD. v) Whether the suit of the plaintiff is not maintainable? OPD vi) Whether the plaintiff is estopped by their own act RSA No.3313 of 2009(O&M) ..4.. and conduct? OPD vii) Relief. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit. Admittedly, appellants had taken a loan from the plaintiff-bank. The case of the bank was that the appellants had failed to repay the loan whereas, the case of the appellant was that they had repaid the entire loan amount to the bank manager Mr.Lehna. However, the said bank manager had committed a fraud on appellants and had mis-utilized the said amount paid by the appellants for his own use. Defendants however in order to substantiate their plea that they had repaid the entire loan amount failed to produce on record any receipt regarding the repayment of the loan amount to the bank/manager. The onus was on the defendants to prove that they had repaid the entire loan amount but they failed to discharge the said onus. Merely because some officials of the bank were being tried for some fraud with the bank would not lead to the inference that the said employees had misappropriated the amount deposited by the appellants. The appellants never filed any complaint against the alleged bank manager who had allegedly misappropriated the amount deposited by the appellants on account of repayment of loan. Both the Courts below after appreciating the evidence led on record by the parties have given a finding of fact that the amount of loan taken by the appellants was still due towards the plaintiff bank. The said finding of fact cannot be interferred with by this court in appeal. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. October 23, 2009. (SABINA) Seema-II Judge