UNITED BANK OF INDIA Vs. TARACHAND MOHANLAL

JUDGEMENT

(1.) The judgment dated 19.8.91 and connected decree dated 21.1.92 passed by the learned Additional District Judge, Dhubri in Title Suit (M) No. 4 of 1988 dismissing the suit of the appellant plaintiff is the subject matter under challenge in this appeal.

(2.) The appellant as a plaintiff instituted a suit against the present respondents and one Yatayat P. Limited Proprietor, New India Transport Co., 18 Tarachand Dutta Street in the town of Calcutta initially before the trial Court concerned for a Money decree of Rs. 3,50,428.80 Paise and recovery thereof with interest @ 11 % per annum with monthly rests till the date of decree and 6% per annum on the decreetal amount till date of realization by contending inter alia, that on the application of defendant Nos. 1,2, 3 and 4, defendant Nos. 2 to 4 being the partners of defendant No.1 as well as on the request of defendant No. 5, the plaintiff/appellant bank sanctioned an accommodation by way of Cash Credit by pledge of jute bales, Mustard seeds and against documentary Bills to the tune of Rs. 1,00,000/- initially in favour of the defendant Nos. 1 to 4 and subsequently raised to the limit of Rs. 2 lakhs and to Rs. 3 lakhs on 24.5.65 and 1.6.68 respectively, for which the defendants executed pronote, letter of continuity, letter of lien, letter of hypothecation, agreement to pledge goods, Hypothecation of Debts and movable assets, letter of guarantee (executed by defendant No. 5), pledge of Jute in godown and pledge of Ware House Receipt of Rs. 1 lakh; pledge of Dhania Rs. 25,000/-; pledge of Central Ware Housing Receipt covering all agricultural commodities excepting vegetable Oil and mustard oil upto Rs. 2 lakhs ; documentary bills covering Jute, Mustard Seeds, Til Seeds, Matikalai, oil cake and Dhania for Rs. 3 lakhs and other additional securities like equitable mortgage of the properties of the said partners in the town of Dhubri as in Schedule-B to the plaint and personal guarantee of the said partners and one Surajmal Sovasaria. Apart from it, the following documents were executed by the defendants 1 to 5 on 28.10.69:

(3.) The said defendants also deposited related title deeds in respect of the said transactions at Calcutta Branch of the plaintiff at 4, Narendra Chandra Datta Sarani, Calcutta prior to the execution of the above mentioned documents and that the defendants/respondents Nos. 1 to 4 confirmed their balance of Rs.2,99,000/- as on 27.10.69. Pursuant to the aforesaid agreement and in terms thereof the plaintiff Bank; duly lent and advanced of the aforesaid money and the plaintiff duly maintained a mutual open current and continuous account according to English Calendar year of all dealings and transactions in the said account at Dhubri, Assam duly crediting the defendant No. J with all sums paid by the defendant No. 1 and or realised as its behalf of and duly debiting the defendant No.1 or on its account for all sums paid by the plaintiff to the defendant No.1 or on its account. In usual course of business the defendant No. 1. represented by its partners, defendant Nos. 2 to 4 requested the plaintiff Bank, Dhubri Branch to advance them against hypothecation of the Bills drawn on M/s. Nava Bharat Corporation of 161 Mahatma Gandhi Road in the town of Calcutta accompanied by Transport Receipt covering consignment of the Jute Bales and the plaintiff Bank made advances against the bills drawn on Nava Bharat Corporation accompanied with Bills and Transport Receipts. According to the plaintiff, Mi's. Everest Roadways, the defendant No. 8 delivered all the Jute bales covered by their Transport Receipts to the consignor against indemnity without plaintiffs knowledge and without production of the transport receipts Which has been in the possession of the plaintiff Bank as the same were endorsed in favour of the Bank for valuable consideration received by the consignee Tarachand Mohanlal as the plaintiff was not a ware of the ultimate destination of the Jute bales taken by the defendants 6,7 and 8, but in view of the terms and conditions of consignment note as the plaintiff Bank accepted the Lorry Receipts, the defendants 6, 7 and 8 are bound to deliver the goods carried by them to the plaintiff and none else. As they have not delivered the goods to the plaintiff, the said defendants 6,7 and 8 are liable to the plaintiff Bank for its dues. It is also the case of the plaintiff that the defendatnt Nos. 1 to 4 acknowledged in writing the debit balance of Rs.2,96,000/- as on 12.11.71 in the said account. Despite the repeated demands made by the plaintiff Bank for repayment of the said dues in the said account through a demand letter on 11.11.71 to the defendants as also to the guarantors, they failed to pay the entire dues or any portion thereof. Hence the suit for money decree of Rs.3,50,482.80 paise against the said defendants. During the pendency of the said suit, the name of the defendant No. 6 was struck off on the prayer of the plaintiff Bank vide order dated 13.4.91 and as such the claim of the plaintiff Bank as against the defendant No. 6 was dropped.