Case: United Bank Of India Vs. Naresh Kumar

2. The appellants branch at Ambala Cantt. had instituted a suit in the Court of Subordinate Judge, Ambala Cantt. for recovery of Rs. 1, 40, 553.91 from the respondents. The case of the appellant was that on 12-4-1984 a sum of Rs. 50, 000 was advanced as loan to Respondent 1 for the purposes of his business and on that date he had executed a demand promissory note, hypothecation of goods agreement and other documents. Respondent 2 and one Shri Suresh Kumar, husband of Respondent 3 had stood as guarantors for the repayment of the loan. The respondents were stated to have agreed to pay interest at the rate of 18 per cent per annum with quarterly rests. When default in payment of the money was committed the aforesaid suit was filed for the recovery of the principal amount and the interest thereon. The sum total came to Rs. 1, 40, 553.91  3. In the written statement filed by Respondent 1 the plea which was taken was that he had never taken loan as alleged by the appellant-Bank and Respondent 2 and Shri Suresh Kumar had not executed any guarantee deed. It was, however, admitted that certain blank documents had been got signed but it was denied that the respondents had agreed to pay interest at the rate of 18 per cent per annum. He also took an additional plea challenging the authority of Shri L.K. Rohatgi to sign and file the plaint on behalf of the appellant. Respondent 2 filed a separate written statement taking the pleas similar to the one which had been raised by Respondent 1 in his written statement. A further plea which was taken by her was that her guarantee was limited to the extent of Rs. 50, 000 and she was not liable to pay any more amount merely because additional credit facilities may have been allowed to Respondent 1. As the other guarantor - Shri Suresh Kumar had died his widow, namely, Respondent 3 was impleaded as one of the defendants but as she did not appear the case against her proceeded ex parte. The appellant Bank filed its replication wherein it denied the allegations contained in the written statements filed by Respondents 1 and 2  4. On the pleadings of the parties the following issues were framed1. Whether the plaint is duly signed and verified by a competent person ? OPP  2. Whether Defendant 1 raised a loan of Rs. 50, 000 from the plaintiff-Bank on 12-4-1984 and executed a demand promissory note, hypothecation of goods agreement, letter of loan and other documents in favour of the plaintiff-Bank ? OPP  3. Whether Defendants 2 and 3 stood as guarantors for the repayment of the loan and if so, what is the extent of their liability ? OPP  4. What is the balance amount ? OPP  5. Whether the plaintiff varied the terms of loan and if so, its effect qua the liabilities of Defendants 2 and 3 ? Onus on parties  6. Whether the statement of account produced by the plaintiff is admissible in evidence ? OPP  7. Whether the defendants agreed to pay interest if so, at what rate and to what amount ? OPP  8. Whether the plaintiff has no cause of action ? OPP  9. Relief. *5. The trial Judge by his judgment dated 14-11-1987 decided Issues 1, 2 and 7 against the appellant. Issues 3, 4, 5 and 6 were held in the appellants favour. The trial court, however, held, under Issues 2 and 3, that Respondent 3 was not liable to pay any amount and Respondent 2 was liable to pay only a sum of Rs. 55, 699.20 as the principal amount plus interest at the rate of 18 per cent per annum for the period 12-4-1984 to 11-2-1985. In view, however, of the decision against the appellant of Issue 1 the suit filed by the appellant was dismissed with costs6. The appellant then filed an appeal which was decided on 2-11-1992 by the Additional District Judge, Ambala. The Additional District Judge reversed the findings of the trial court insofar as Issues 2 and 7 were consumed and came to the conclusion that the appellant had been able to prove that Respondent 1 had taken a loan of Rs. 50, 000 and had also proved the execution of relevant documents by the respondents. The principal debtor and the guarantors were also held to have agreed to pay interest at the rate of 18 per cent per annum. It affirmed the decision of the trial court limiting Respondent 2s liability to Rs. 50, 000 and interest thereon. With regard to the liability of Respondent 3 the lower appellate court held that in the absence of any evidence to prove that she had inherited any estate from her deceased husband no liability could be fastened on her and the decision of the trial court, to that effect, was affirmed. The appeal was, however, dismissed because the Additional District Judge upheld the decision of the trial court with regard to Issue 1. It was held that it has not been proved that Shri L.K. Rohatgi had held any valid authority to file the suit on behalf of the appellant-Bank7. Against the aforesaid decision of the Additional District Judge the appellant filed a regular second appeal. By order dated 30-8-1993 a Single Judge of the Punjab and Haryana High Court dismissed the said appeal in limine by observing that there was no ground for interference with the concurrent findings of facts recorded by the two courts below. Hence this appeal by special leave

Reasoning:
11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant-Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of theCode of Civil Procedure and should have directed a proper power of automate to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim12. The courts below having come to a conclusion that money had been taken by Respondent 1 and that Respondent 2 and the husband of Respondent 3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non-suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suitConclusions14. The suit of the appellant had been dismissed because Issue 1 had been decided against it. The counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that Issue 1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues