:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.1030 OF 1988 NO.1030 OF 1988 NO.1030 OF 1988 Canara Bank, Sir P.M. Road Branch. ...Plaintiffs. V/s. The Official Liquidator, High Court, Mumbai. ... Defendants. Mr. R.C. Dubey i/b. Sanjeev Kanchan & Co. for the Plaintiffs. Mr. Shyamal Kumar Sinha, Officer - Canara Bank present. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH DECEMBER 2008. DECEMBER 2008. DECEMBER 2008. P.C. P.C. P.C. : : : . From the record it appears that the Writ of Summons has been duly served. Defendant No.1 has been wound up by an order passed by this Court and the Official Liquidator, High Court, Bombay has already been substituted as Defendant No.1. The Plaintiff has taken leave under Section 446 of the Companies Act, 1956 to proceed with the Suit against the Official Liquidator. Defendant Nos. 2 and 3 are also served with the Writ of Summons. All Defendants are represented by the Advocates. Their Written Statements were also filed and this Court had given directions to record evidence. In 2005 itself the directions were given to file affidavit of documents and evidence. Accordingly, the Plaintiff has complied with :2: the same and has filed the original documents alongwith the list on 21st December 2005. 2. On 28th December 2005, the affidavit in lieu of examination in chief was tendered and it is also filed. 3. The Plaintiffs’ Advocate states that copies of the said documents and affidavit have been served on the Official Liquidator. They were also sought to be served on Defendant Nos.2 and 3 personally but their addresses have changed. However, it appears that Defendant Nos. 2 and 3 are represented by Advocates. The name of the Advocates appearing for the Defendants is duly shown on Board. The matter has been repeatedly adjourned for recording evidence since 25th July 2008. It has been pointed out to me on the last occasion that despite receipt of the documents and the affidavit none has come forward to cross examine the Plaintiff’s witness. 4. I had assigned the specific date so that the Plaintiffs’ witness can remain present. Accordingly, the Plaintiffs’ witness Mr. Shyamal Kumar Sinha, who is presently posted at Kolkata has come down to Mumbai and is present in Court. 5. He states that the affidavit of the Plaintiff’s witness which is already tendered be taken on record as he is personally present today. The Plaintiff’s Advocate :3: states that the Plaintiff’s witness is ready and willing to submit himself to cross examination. 6. The Suit is filed by the Plaintiffs-Bank to recover from the Defendants a sum of Rs.3,84,516.83. 7. The claim with interest arises out of credit facilities which have been extended by the Plaintiff to the First Defendant - Company of which Defendant Nos. 2 and 3 are Directors. The First Defendant is the principal borrower whereas Defendant Nos. 2 and 3 are the Guarantors. From the plaint averments and more particularly that of paragraphs 3 to 9 it is clear that the Plaintiffs have approached this Court to recover the sums under these facilities. 8. The witness of the Plaintiffs has confirmed each of these averments and has stated that the contents of the documents relied upon by the Plaintiffs to support the plaint averments are true and correct. The original documents are also produced which include the application and the agreements. The guarantee covering letter and the undertaking are also produced in originals. The extract of the Books of Accounts which are maintained in the ordinary and regular course of business so also under the Bankers’ Evidence Act, duly certified as stipulated thereunder, are also produced. :4: 9. Since, the Plaintiff’s witness has confirmed the plaint averments and has also proved the contents of the documents which are compiled in the list, the affidavit in lieu of examination in chief is taken on record. 10. It is taken on record also because the witness who is personally present in Court states that he confirms the statements as made in the affidavit in paragraphs 2 to 12. 11. The witness has also confirmed his signature below the affidavit. He states that at the relevant time he was posted as Manager of the main Branch of the Plaintiff - Bank and therefore, he is fully acquainted with the facts of this case. He has deposed on the basis of the records maintained in the Branch. 12. The affidavit is taken on record and marked ‘X’ for identification. The original documents are marked ‘X-1’ collectively. 13. In such circumstances, the Plaintiff has proved that it has extended the facilities, that the amounts advanced were due and payable alongwith interest as per the agreement, there is a default in making payment despite admitting the liability. 14. The First Defendant it the Official Liquidator who has not disputed the plaint averments but has only :5: contended that the Plaintiff’s claim cannot be settled straightway. It cannot have precedence in law. 15. That is the matter which need not be gone into at this stage and it will be open for the Liquidator to make appropriate submissions in that behalf. 16. It is only in the light of the Written Statement of Defendants 2 and 3 which was filed on 9th January 1997 that the issues were drawn. The issues which were framed on 25th July 2008 cast burden on Defendant Nos. 2 and 3. Issue Nos. 1 to 4 cannot be answered in favour of the Defendants inasmuch as they have failed to prove the same. They have not led any evidence nor produced any documents. 17. The Defendants have failed to avail the opportunity to cross examine the Plaintiffs’ witness who has personally come to depose before the Court. The Defendants and their Advocates are absent. 18. In the above circumstances, the Suit is decreed as prayed. Advocate’s costs to be computed as per Rules. All concerned to act on authenticated copy. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)