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.62 OF 1999. SUIT NO.62 OF 1999. SUIT NO.62 OF 1999. Bank of India a body Corporate constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act 5 of ‘970 having its Head Office at Express Towers, Nariman point, Mumbai 400 021 and having one of its Branch at Stock Exchange Branch, New Stock Exchange Building, Dalal Street, Fort, Mumbai 400 023 ..Plaintiffs versus Bharat B. Shah, of Bombay, carrying on business at Karim Chambers, 3rd floor, Hamam Street, Mumbai 400 023 ..Defendants Ms.Shilpa Kamble i/b. Shukla & Shukla for the Plaintiffs None for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 1st Oct., 2008. DATED : 1st Oct., 2008. DATED : 1st Oct., 2008. JUDGMENT JUDGMENT JUDGMENT 1. Plaintiffs have filed the suit for recovery of Rs.8,24,975.92 along with interest at the rate of 19.38% per anum at quarterly rest from the date of filing of the suit till realisatiion. The plaintiffs, nationalised bank advanced loan to the defendant on the basis of temporary Overdraft facility granted in favour of the defendant on the -2- strength of Demand Promissory Note duly executed by the defendant on the sum of Rs.12,00,000/-, letter to continuing security and letter of lien etc. The plaintiffs have contended that the defendant availed of the temporary overdraft facility and has not complied with the loan liability and hence the present suit. 2. In the present suit Summons for Judgment No.811 of 1999 was taken out and by Order dated 10.4.2001 the defendant was ordered to deposit the sum of Rs.3,00,000/- within six weeks from the date of the Order and upon payment of said sum of Rs.3,00,000/- defendant was permitted to contest the suit. Defendant has not deposited the said amount and Non Deposit Certificate is filed by the plaintiffs. Even otherwise, the defendant has not filed written statement. 3. Since no written statement was filed, formal issues were not framed. On the last occassion, the plaintiff’s witness Mr.R. Sukumaran Nair, Deputy General Manager, P.W.1 has filed his evidence affidavit as well as documents on which the plaintiffs want to rely upon. -3- 4. I have heard learned Advocate Mr. Kamble appearing on behalf of the plaintiffs and I have perused the documents. Exhibit P-1 and P-2 are the forms duly filled in by the defendant concerning the opening of the account with the plaintiffs. Exhibit P-3 is the promissory note dated 14.5.1996 to the extent of Rs.12,00,000/- . Exhibit P-4 are the list of Continuing Security dated 14.5.1996 and letter of lien and set off dated 14.5.1996. The plaintiffs gave notice to defendant at Exhibit P-5 being notice dated 17.11.1998 calling upon the defendant to pay the outstanding amount. The defendant did not respond to it. Exhibit P-6 is the statement of account printed by the plaintiffs and that goes to show as to how that amount was due and payable by the defendant. Plaintiffs admit that sum of Rs.1,00,000/- was paid by the defendant towards loan liability on 27.1.1997. 5. After having heard learned advocate on behalf of the plaintiffs, I observe that the plaintiffs have made out a case that temporary over draft facility was advanced to the defendant and the defendant has enjoyed the same and the -4- plaintiffs have been able to show that the defendant has failed to comply with the said loan liability on the basis of the statement of account at Exhibit P-6. Since sum of Rs.1,00,000/- was paid by the defendant to the plaintiffs on 27.1.1997 towards repayment of the loan, institution of the suit on 7.12.1998 is well within the period of limitation. 6. During the course of arguments, learned advocate for the plaintiffs had conceded that the defendant had repaid to the plaintiff sum of Rs.1,90,000/- and this will go to show that the component towards the principal amount unpaid is 10,10,000/-. 7. Since the plaintiffs have been able to show that on the date of filing of the suit, the amount claimed in the plaint was outstanding, the plaintiffs will be entitled for decree as prayed for i.e. the plaintiff will be entitled to recover from the defendant Rs.8,24,972.92. 8. So far as the interest after the filing of the suit, plaintiffs would be entitled to recover -5- interest at the rate of 19.38% not on quarterly rest but on annual basis. Since the plaintiffs have admitted that sum of Rs.1,90,000/- has been repaid towards principal amount namely Rs.12,00,000/- the plaintiff would be entitled to recover interest from the date of filing of the suit till realisation on 10,10,000/- being the outstanding principal on the date of filing of the suit. Plaintiffs will be entitled for costs of the suit. . For the reasons mentioned aforesaid, I pass the following decree: DECREE i) Defendant do pay to plaintiffs Rs.8,24,975.92. ii) Defendant do pay to plaintiffs interest at the rate of 19.38% per anum on Rs.10,10,000/- from the date of filing of the suit till realisation. iii) Defendant do pay to plaintiffs cost of this suit. -6- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)