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 SUIT NO. 3916 OF 1990 SUIT NO. 3916 OF 1990 SUIT NO. 3916 OF 1990 Central Bank of India, a body corporate, constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 having its Central Office at Chandermukhi, Nariman Point, Bombay- 400 021 and Branch Office known as Boribunder ... Plaintiffs. Brnch, Dr.D.N.Road, Bombay- 400 001. V/s. 1. Arvind Arun Mandlik of Bombay, Indian Inhabitant carrying on business in the firm name and style of Messrs. Shree Enter- prises as Sole Proprietor thereof at 916, New Building, 9th floor, Shastri Hall Compound, 292, Jawji Dadaji Road, Bombay- 400 007. 2. Usha Arun Mandlik of Bombay, Indian Inhabitant residing at 916, New Building, 9th floor, Shastri Hall Compound, 292, Jawji Dadaji Road, Bombay- 400 007. 3. Sushilkumar R. Ruia of Bombay, Indian Inhabitant Director of Kolhapur Sugar Mills Ltd., having his office at Udyog Bhavan, Walchand Hirachand Marg, Ballard Estate, Bombay- 400 038. ... Defendants. A. Hariharan for the plaintiff. None for the defendants. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 17th January 2008. DATED: 17th January 2008. DATED: 17th January 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff is a nationalised bank constituted, established and functioning under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 ("said Act" for short) having its central office at Chandermukhi, Nariman Point, Bombay- 400 021 and Branch Office known as Boribunder Brnch, Dr.D.N.Road, Bombay- 400 001 ("Bank" for short). Defendant No.1 is a sole proprietor whereas defendant Nos.2 and 3 are sued as guarantors. Factual Matrix : Factual Matrix : Factual Matrix : -------------- -------------- -------------- 2. The bank has filed this suit against the defendants on the following factual matrix: 3. On being applied by defendant No.1, the plaintiff- Bank had granted cash credit hypothecation facility and overdraft facility. The said financial facilities were released against execution of loan documents, details of which are to be found in para-4 of the plaint so far as cash credit hypothecation facility is concerned and in para-5 so far as overdraft facility is concerned. - 3 - Both the facilities were enjoyed by defendant Nos.1 and 2. Defendant Nos.2 and 3, by executing letter of guarantee, had guaranteed the amount of loan under the said financial facilities. 4. After having enjoyed the financial facilities, when the account became irregular, the plaintiff- Bank demanded aforesaid amount by registered notice dated 11th October, 1990. Since the defendants failed to comply with the requisition contained in the notice, the plaintiff has filed this suit for recovery of their outstanding dues in the sum of Rs.41,693.42 as per Exh.‘D’ and Rs.11,721.80 as per Exh.‘P’ annexed to the plaint together with interest thereon. 5. On being summoned, the defendants appeared. Defendant Nos.1 and 2 filed their written statements, whereas defendant No.3 did not appear. Consequently, defendant No.3 suffered exparte decree on 16th August, 1990. According to the plaintiff, the defendants are jointly and severally liable to pay outstanding dues. Issues for Determination : Issues for Determination : Issues for Determination : ------------------------ ------------------------ ------------------------ 6. Considering rival pleading, issues were - 4 - framed on 18th October, 2007 reading as under: ISSUES FINDINGS 1. Whether the Plaintiffs proves Yes. that the Defendant No.1 approached the plaintiffs in September, 1984 seeking to grant Cash Credit (Hypothecation) facility and an Overdraft facility against Book debts? 2. Whether the Plaintiffs prove Yes. that the Defendants were granted a Cash Credit (Hypothecation) facility for Rs.20,000/- and Overdraft facility for Rs.10,000/- respectively in September, 1984? 3. Whether the Plaintiffs prove Yes. that the Defendant Nos.2 and 3 guaranteed the repayment of the facilities granted to Defendant No.1? 4. Whether the Plaintiffs prove Yes. that the Credit facilities granted to the Defendant No.1 were continued by the Defendant No.1 executing fresh documents dated 4th November, 1987? 5. Whether the Plaintiffs prove Yes, however, that the Defendants are liable with interest @ to pay a sum of Rs.41,693.42 12% together with interest @ 14% per annum from the date of suit till payment in respect of the Cash Credit (Hypothecation) facility? 6. Whether the Plaintiffs prove Yes, however, that the Defendants are liable with interest to pay a sum of Rs.11,721.80 12% together with interest @ 16.5.% per annum from the date of suit till payment of the Overdraft facility? - 5 - 7. What order and costs? As per the final order 7. The plaintiff- Bank has filed affidavit of evidence duly sworn by one Shri Umesh Chandra Gochhayat dated 29th October, 2007. He has proved all the documents available through his affidavit. There is no challenge to the documents filed by him. His affidavit of evidence has also not been challenged by any of the defendants. The defendant Nos.1 and 2 did not appear to cross-examine the plaintiff’s witness who entered in witness-box. The plaintiff bank has filed extract of accounts duly certified under the Bankers Books Evidence Act. The same has also been proved by the said witness. He has proved his own signature on the certificate appended on the foot of the extract of accounts. In the above view of the matter, the plaintiff has proved its claim. 8. In the above view of the matter, suit filed by the plaintiff- Bank is liable to be decreed. Hence the following order: ORDER - 6 - (i) The suit is decreed in terms of the prayer clauses (a), (b), (c) and (d) incorporated in the plaint. (ii) The defendants do jointly and severally pay Rs.53,415.22 (Rs.41,693.42 + Rs.11,721.80) to the plaintiff, the amount paid to them from time to time, 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 12% per annum with costs. (iii) The plaintiff shall also be entitled to full costs. (iv) Decree be drawn in terms of this order. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)