MAHALUXMI BANK LTD. Vs. KAMAKHYALAL GOENKA AND ORS.
LAWS(GAU)-1958-1-7
HIGH COURT OF GAUHATI
Decided on January 30,1958

MAHALUXMI BANK LTD. Appellant
VERSUS
Kamakhyalal Goenka And Ors. Respondents


Referred Judgements :-

MA PWA MAY V. CHETTIAR FIRM [REFERRED TO]
RAM NATH V. CHIRANJI LAL [REFERRED TO]
HIRA BIBI VS. RAM HARI LAL [REFERRED TO]
KUNWAR SURENDRA BAHADUR SINGH VS. THAKUR BEHARI SINGH [REFERRED TO]
BHIMASINGH KISHORSINGH VS. FAKIRCHAND NANDLAL [REFERRED TO]
BRIJ NARAIN VS. MANGLA PRASAD [REFERRED TO]


JUDGEMENT

- (1.)THIS appeal arises out of a suit instituted by the Plaintiff -Appellant to enforce a mortgage bond dated 3rd June, 1946.
(2.)THE bond in suit purports to have been executed by Defendants Nos. 1 and 2 for selves and as guardians of the other Defendants, the first two Defendants being husband and wife and the other Defendants, being their minor sons. The deed was in favour of the Sylhet Industrial Bank Ltd.; but the Plaintiff's case is that the said bank was amalgamated under the orders of the High Court of Judicature at Fort William in Bengal, with the Plaintiff Mahaluxmi Bank Ltd., which is a scheduled bank, having its registered head office at Calcutta, with a branch also at Shillong. The total consideration mentioned in the document is a sum of Rs. 1,41,000/ - and the Defendants having made payments towards the satisfaction of the mortgage dues, the Plaintiff sued to recover a sum of Rs. 1,29,251 -15 -0 only.
The rate of interest mentioned in the bond is 6 per cent per annum and the schedules to the plaint specify the mortgaged securities including holding No. 29 in the Shillong Cantonment area. The suit was filed on 29 -1 -1948, the plaint having been presented by the Manager of the Plaintiff -bank, who signed and authenticated the same. The Plaintiff prays that a decree for the amount in claim should be passed against the Defendants with pendente lite interest at the bond rate until the expiry of the period of grace and in default of payment within that period, the dues may be satisfied by sale of the mortgaged properties.

(3.)THE Defendant No. 1, Kamakhyalal Goenka, in his written statement admitted having executed the document, but he said that he did so under pressure and undue influence, because, be was in need of money at the time for running his business. He alleged that he borrowed money from the Sylhet Industrial Bank Ltd., not as the Karta of the family or for the benefit of his wife and children, but in his own personal capacity. He also disputed the amount of consideration mentioned in the document. His contention was that the Bank gave him only Rs. 54,133 -12 -9, but mentioned an exaggerated amount in the document. He further stated that he was not given any copy of the account of his dues payable to the Bank, nor did he have an opportunity of scrutinising the accounts and that it was not true that, as recited in the deed, the Defendant owed a sum of Rs. 86,866 -3 -3, to the bank, which was set off towards the consideration amount.
He also took the plea that some of the properties under mortgage, namely, Holding No. 29 of the Cantonment area in Shillong had been gifted by him to the Defendant No. 2 as far back as 24th August, 1938, over which he had no disposing power and the mortgage, therefore, could not be enforced against that property. He also disputed the existence of any legal necessity for taking any loan. There was a further point of non -joinder of one of his sons Sajjan Kumar Goenka as a party to the suit raised by the Defendant, but that defect has since been cured.

The written statement of Defendant No. 2 is substantially in the same terms. She also raised the plea that the Defendant No. 1 had no authority to raise any loan on the mortgage of holding No. 29 of the Shillong Cantonment, which had been gifted to her and over which the mortgagor had no power of disposal. She further averred that the bond in suit was not voluntarily executed by her and that her signature was obtained on a stamped paper on misrepresentation of facts and under coercion alleging that the Defendant No. 1 was heavily indebted to the Sylhet Industrial Bank Ltd., and that if she did not sign the stamped paper, her husband would not be able to get any money from the bank, which he badly required. She also denied having received any consideration under the document and further stated that she had no knowledge of any legal proceeding under which she was appointed a guardian of the minors.



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