INDUSTRIAL DEVELOPMENT BANK OF INDIA Vs. MALWA SAHKARI SHAKKAR KARKHANA LTD.
LAWS(DR)-2004-12-22
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on December 15,2004

INDUSTRIAL DEVELOPMENT BANK OF INDIA Appellant
VERSUS
Malwa Sahkari Shakkar Karkhana Ltd. Respondents

JUDGEMENT

P.K. Deb, J. - (1.) THIS appeal has been preferred against the part of the judgment and order dated 19th June, 2002 passed by the then Presiding Officer, D.R.T., Jabalpur in T.A. No. 88/98. The appellant Industrial Development Bank of India (hereinafter shall be called as the Bank) had filed a suit for recovery of Rs. 2,16,57,0427 - against the defendant -respondent Nos. 1 and 2 together pendente lite and future interest @ 16.44% per annum together with other consequential reliefs before the District Judge, Indore. It must be mentioned here that at the time of filing of the suit no notices were served as required under Section 80 of the CPC on the respondent -defendants as the law requires so by praying that necessity arose to file the suit premature because of urgency without compliance of Section 80 (1) of the CPC The plaint was ordered to be returned as no urgency was found and as such the plaint was taken back from the side of the appellant -Bank and it was re -filed on 11th February, 1998 itself, so the suit remained to be filed on 1st February, 1998. The respondent -defendant Nos. 3 and 4 were also made formal parties in the suit as the charges created by the defendant No. 1 for securing the credit facilities advanced by the appellant -Bank, as charges created by the defendant No. 1 in favour of defendant Nos. 3 and 4. They did not contest the suit rather they had supported the claims of the appellant -Bank which they also did as defendant Nos. 3 and 4 in the appeal itself. The brief facts of the case may be stated as below.
(2.) THE defendant -respondent No. 1 is a society as per the M.P. Society Act, 1960 having registered office situated within the District of Indore. The defendant - respondent No. 2 (Government of M.P.) stood as a guarantor having guarantee of the repayment of the loan advanced by the appellant -Bank to the respondent - defendant No. 1. The defendant -respondent No. 1 in the first part of the Year 1981 sought financial assistance for the purpose of setting up of Sugar Factory. Such relief was approved by the Bank in the month of March, 1981 having sanctioned term loan of Rs. 2007 - lacs but the same was later on reduced to Rs. 1507 - lacs. The usual documents as per the Banking rules have been executed by the defendant - respondent No. 1 and a loan agreement was also entered in the year 1981 in the month of November. As per the terms, the loan was to be repaid in eight half -yearly instalments commencing from 20th June, 1982 ending on 20th December, 1985. Deed of hypothecation was also executed by the defendant No. 1 in terms of the documents. Defendant -respondent No. 2 executed irrevocable 100% unconditional Deed of Guarantee in default of defendant No. 1 and such Deed of Guarantee was executed on 10th May, 1982 and it was in terms of the Guarantee Deed that in default of payment by defendant No. 1, the defendant No. 2 would repay the same. Thus the defendant No. 1 although remained the principal guarantor, but defendant No. 2 also stood in aid of guarantor to the payment of the loan having been made liable jointly and severally with the principal borrower. The defendant -respondent No. 3 acting as agent of the Bank took deposit of all title deeds of the immovable properties of the defendant No. 1, the details of which were given in the schedule of the plaint. The movable properties of defendant No. 1 were also hypothecated as per the terms of the loan agreement, details of which were given in schedule Exhibit No. A/2 of the plaint. There were also deposit of stocks referred to as Banker's goods as scheduled in the plaint and marked as exhibit No. A/3. When the defendant Nos. 1 and 2 failed to make payment, then notices were sent to the defendants on 13th October, 1994 lastly demanding the entire amounts of the dues and the said demand was also made and brought to the notice of the Registrar of the Co -operative Societies under Section 94 of the M.P. Co -operative Society Act vide notice dated 10th October, 1997 and also the notice was sent under Section 80 of the CPC on that date. After expiry of the period of notice, the re -submitted plaint was registered before the District Judge, Indore and when the Debts Recovery Tribunal was set up at Jabalpur, the same was sent to the D.R.T., Jabalpur and was registered as TA No. 881/1998. The suit was contested both by the defendant -respondent Nos. 1 and 2. Their main plea was that the suit before the Civil Court or before the Tribunal was not maintainable as the Registrar of Co -operative Societies under Section 64 of the M.P. Co -operative Societies Act is empowered to hear such dispute. The further claim of the defendant -respondent Nos. 1 and 2 was that the suit is hopelessly barred by limitation as the same does not cover the period as contemplated under Article 62 of the Limitation Act.
(3.) ON the basis of the pleadings of the parties, the evidence had been led and documents had been exhibited. On the basis of the affidavits being filed from the side of both the parties at the fag end of the trial of the case, when it could be found that the suit/original application under the D.R.T. Act is barred by limitation, then a chance was given by the learned Tribunal to rebut the plea of limitation from the side of the appellant. The order dated 23rd January, 2002 passed by the learned Presiding Officer D.R.T., Jabalpur reads as follows: Parties represented through their Advocates. The case was listed for judgment today. But it appears from the reply filed on behalf of the defendants that they have raised a preliminary objection that the suit filed against them is not filed within the prescribed period under the Limitation Act and thus barred by limitation. This issue is not replied by the applicant -Bank in their rejoinder. Further it appears that the copy of the intent issued to plaintiff is dated 3rd March, 1981, Loan Agreement was executed on 19th November, 1981, Deed of hypothecation was executed on 15th May, 1983 and Deed of Guarantee was executed by the defendant No. 2 on 10th May, 1982. While the present suit was filed on 11th February, 1998, defendants have raised an objection that after 1982 -83, they have not executed any acknowledgement or revival letter in favour of the plaintiff. It appears that it is also not the case of applicant Bank that defendants have ever executed any acknowledgement or revival letter after disbursement of the loan. In view of the above, I would like to re -hear the parties on the issue of limitation. Therefore, the case be listed again for final arguments.;


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