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 SUMMARY SUIT NO. 1601 OF 1990 SUMMARY SUIT NO. 1601 OF 1990 SUMMARY SUIT NO. 1601 OF 1990 State Bank of Indore, a Bank constituted under the State Bank of India (Subsidiary Banks) Act, 1956, having its branch office at Bhuleshwar, Bombay- 400 002. ... Plaintiff. V/s. 1. Manoj Trading Syndicate, a partnership firm having its office at A-1/73, 604, Gokuldham Housing Society, Film City Road, Goregaon (E), Bombay- 400 063. 2. Manoj Nripendra Nagar. 3. Mrs.Indira Nripendra Nagar. 4. Nripendra S. Nagar, . Nos. 2 to 4 Indian Inhabitants residing at A-1/73, 604, Gokuldham Housing Society, Film City road, Goregaon (E), Bombay- 400 063. ... Defendants. Rahul Yadav i/b. S.Ashwinikumar & Co. for the plaintiff. None for the defendants. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 21st February, 2008. DATED: 21st February, 2008. DATED: 21st February, 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff- State Bank of Indore ("Bank" for short) has filed this suit against the defendants for the recovery of their outstanding dues in the sum of Rs.65,341.29 and also claimed future interest thereon from the date of suit till realization. The defendant No.1- M/s.Manoj Trading Syndicate is a partnership firm; defendant Nos.2 and 3 are the partners of defendant No.1 firm, whereas defendant No.4 is the guarantor to the suit transactions. 2. It is the case of the plaintiff that on or about 6th February, 1982, defendant Nos.1 to 3 in the course of their business applied to the plaintiff- Bank for cash credit limit for the sum of Rs.50,000/-. In consideration of the same, they have executed in favour of plaintiff demand promissory note dated 12th March, 1982 promising to repay the said sum of Rs.50,000/- on demand with interest. On the same day, i.e. 12th March, 1982, they also executed an agreement for pledge of goods under which, they have, inter alia; agreed that in - 3 - the event of delay or default on their part to abide by the said agreement and, in particular repayment of loan, they shall bear and pay interest at the rate of 16% per annum with quarterly rests. The defendant Nos.1 to 3 continued to enjoy the said facility and renewed the same on 9th September, 1987 for an enhanced facility of Rs.55,000/- with interest at the rate of 13.55% per annum by executing fresh demand promissory note. On the same day, they have also executed in favour of the plaintiff an agreement for pledge of goods. 3. The defendant No.4 has also executed in favour of the plaintiff an agreement of guarantee, guarantying repayment of loan advanced to defendant Nos.1 to 3 with interest, costs, charges and expenses jointly and severally along with defendant Nos.1 to 3. 4. Thus, it is case of the plaintiff that the defendants have enjoyed the loan facilities and there is outstanding dues due and recoverable in the said cash credit account in the sum of Rs.54,334.59 with future interest. 5. On 21st April, 1986, the defendants also - 4 - applied for a term loan for purchase of one Power Press for a sum of Rs.25,000/-. The Bank sanctioned loan to defendant Nos.1 to 3 keeping the margin of 30% with interest at the rate of 13.5% per annum. The defendant No.4 also executed in favour of the plaintiff an agreement dated 21st April, 1986 to guarantee the repayment of the said term loan or balance thereof with costs, charges, expenses jointly and severally. 6. It is further case of the plaintiff that defendant Nos.1 to 3, prior to filing of this suit, have disposed of the goods and merchandise which were pledged under the pledge agreement dated 9th September, 1987 and also the machinery described in the Schedule-B of the term loan agreement dated 21st April, 1986, as such the said securities were lost by the plaintiff. Since the defendants did not operate their account with the plaintiff- Bank for several months and committed defaults in repayment of loan and/or interest accrued thereon, the plaintiff issued notice to the defendants through their advocate calling upon them to pay jointly and severally the sum due and recoverable in the cash credit and term loan account with interest. Said notice was posted at address of industrial unit as - 5 - well as at the residential address of the defendants. However, the said notice returned unserved with remark "left". When the notice was sent to the defendants at their present address, in spite of intimation by the post office, the defendants did not receive the said notice as such the said notice also returned back. In the circumstances, the plaintiff contended that defendant Nos.2 and 3 being partners of defendant No.1 firm and defendant No.4 being guarantor all are jointly and severally responsible and liable to pay the plaintiff’s dues. The plaintiff has, thus, filed present suit for recovery of their dues, due and recoverable from the defendants in the sum of Rs.65,341.29 with future interest. 7. In spite of service of writ of summons, none of the defendants appeared to oppose the suit claim. No written statement was filed by them. Consequently, vide order dated 10th September, 2007, this Court directed the plaintiff to file affidavit of evidence and documents. 8. Pursuant to the aforesaid order dated 10th September, 2007, an affidavit in lieu of evidence in support of the suit claim together with original - 6 - documents including extracts of accounts duly certified under the Bankers Books Evidence Act were filed by the plaintiff- Bank. The affiant has entered the witness box to verify his affidavit. All the documents were proved by the plaintiff through their affidavit. Nobody was present on behalf of the defendants either to cross-examine the affiant or to challenge the legality or validity of the documents executed by defendant Nos.2, 3 and 4 in favour of the plaintiff- Bank. Under these circumstances, evidence of the plaintiff together with documents went unchallenged. The plaintiff- Bank has proved their claim together with their right to recover the amount with interest thereon. The plaintiff- Bank has also proved existing liability against the defendants and outstanding dues due and recoverable from them on the basis of the extract of accounts duly certified under the Bankers Book Evidence Act. The plaintiff also proved that loan documents were executed by the defendants and the cash credit facility was granted by the plaintiff- Bank and was utilised by the defendants. It is also proved that a term loan of Rs.25,000/- was also advanced to defendant Nos.1 to 3 and under the said term loan account a sum of Rs.11,006.70 was due and recoverable from the - 7 - defendants. The suit claim is not barred by limitation. The plaintiff has not claimed any excess amount by way of interest. As such, plaintiff- Bank is entitled to a decree in terms of the suit claim. 9. In the above view of the matter, suit filed by the plaintiff deserves to be decreed in toto 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 in terms of the prayer clauses incorporated in the plaint. (ii) The defendants do pay Rs.65,341.29, 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 10% per annum with costs. - 8 - (iii) Decree be drawn in terms of this order. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)