Decided on March 03,2004



D.C.Thakur, - (1.) THE word 'judicial admission' is frequently used in the judicial parlance, such expression necessarily takes place when a Court has been, in particular, called upon to arrive at such typical admission made before itself by a contending party who may be either a plaintiff or a defendant. Sometimes such expression has been attempted to be associated with the prevalent theory of non-traversal without making any offer to examine the counter pleading of a defendant in a civil action where the plaint allegation has been specifically brought against the said contending party. THE words 'judicial admission', 'doctrine of non-traversal' and the effect of the non-controverting, replicated affirmation have been perhaps inter-related with each other.
(2.) The above inter-relationship is hereby being afforded to be given a functional-structural description in the following manner: Before entering into the web of such inter-relationship between the above three, this Tribunal deems it fit to state in short the factual background of TA/187 of 2002 being the renumbering of OA/245 of 2000 which has been instituted by the applicant Bank against a number of defendants before the learned Transferring Tribunal for the recovery of a substantial amount being "due and recoverable" from the latter.
(3.) THE applicant Bank had been pleased to sanction and grant by its letter of sanction dated October 27, 1997 to the contracting defendants the cash credit facility (hypothecation)-105; such letter of sanction was factually issued by the said Bank, while making a response to the application made by those defendants bearing reference No. CN/409/L-1051/97-98 dated October 3, 1997 with a condition imposed, a prior, upon those defendants: "Facility shall be released only after compliance of all terms and conditions of sanction and securities are properly charged in Bank's favour." THE letter of sanction was thereafter received by the defendant No. 2 being the proprietor of the defendant No. 1. THE said facility had been for the maximum limit of Rs. 23 lakhs along with a rate of interest being 3.35% p.a. above Bank rate with a minimum of 16.85% per annum with quarterly rests as well as a penal interest of two per cent in the event of nonpayment on the due date of payment by those defendants. As a result, eight commercial documents were executed on November 5, 1997 by the defendant No. 2. Amongst such commercial documents the execution of sole proprietorship letter by the defendant No. 1 deserves its specific mention because such loan which has been granted to such defendants has been with its aim for rendering the required assistance through pledge or hypothecation only for the business purpose in the steel field. In the said sanction letter there has been incorporated a clear-cut stipulation that such facility would also be collaterally secured by way of the equitable mortgage of land and building and pledge of KVP for Rs. 2.50 lakhs. THE said defendants have also executed the other documents to establish beyond doubt the fulfilment of the above stipulation. On November 5, 1997 the hypothecation of stocks of iron and steel items and the collateral security by way of one equitable mortgage of land and building at 241 and 242 G.T. Road, Lituah, Howrah, C.S. Dag No. 318, Khatian No. 319, Mouza Malipanchghora, P.S. Bally, District Howrah found mutated in the name of the defendant No. 2 were also occasioned to be performed by the defendant No. 2 as the proprietor of the defendant No. 1 only for the purpose of the necessary Banking assistance in the form of cash credit hypothecation to the maximum extent of Rs. 23 lakhs. After being satisfied with such strict compliance with the prior stipulation as well as an express guarantee to fulfil the general nine conditions as well as the other two rigid conditions generally applicable to cash credit hypothecation of stocks and lastly KVP for Rs. 2.50 lakhs (CDR obtained F2709) caused to be pledged or submitted with the Shyam Bazaar branch of itself, the applicant Bank had been pleased on November 6, 1997 to issue the following directions upon the Branch Manager. "Initially release only Rs. 10.00 lakhs to the party and put up again after conducting a thorough inspection of the unit." Those cash credit hypothecation oriented relationship between the applicant Bank and the defendants functioned in full swing and had been compelled to halt at a stationary stage on and from April 6, 2000 when the irregular account of the defendants, which had been irregular clue to the commission of the breach of agreement by those defendants, was compelled to be transferred to the protested bill account though those defendants issued one balance confirmation certificate to the applicant Bank in relation to the account bearing No. CC/105 after certifying : "I/we hereby confirm the correctness of the debit balance of Rs. 18,69,399.89 (Rupees eighteen lakhs sixty nine thousand three hundred ninety-nine and paise eighty-nine only) in the subject account as on 7.9.98 and I/we acknowledge my/our liability for the same.";

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