ORIENTAL BANK OF COMMERCE Vs. SHIV KUMAR JAISWAL
LAWS(DR)-2004-12-21
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on December 22,2004

Appellant
VERSUS
Respondents

JUDGEMENT

P.K.Deb, - (1.) THE appeal has been preferred against the judgment and order dated 23rd September, 2002 passed by the then Presiding Officer, DRT, Allahabad in T.A. No. 382 of 2000, whereby and whereunder the claim of the appellant-Bank has been dismissed to the effect that the settlement amount of Rs. 10.40 lacs had already been deposited by the defendant-respondent with the Bank. THE brief facts of the case are as follows: 1. THE respondent-defendant No. 1 is a liquor contractor and he approached the appellant-Bank, Johnstongjanj Branch, Allahabad for a loan of Rs. 9.00 lacs for his business and also promised to pay the said loan amount with interest. THE defendant Nos. 2 to 15 and late Shri Ashok Kumar Jaiswal stood surety for repayment of the loan amount and also deposited their Title Deeds of immovable properties, details of which were given in the foot of the plaint itself. On 9th July, 1994 such loan was advanced to the defendant No. 1 by the Bank for repayment with interest @ 17% per annum with quarterly rest. THE usual documents for loan as per Banking Rules have been furnished and executed by the borrower and the sureties. THE account of the defendant No. 1 was found to be sticky from the very beginning and amount of Rs. 13, 36, 910/- remained due against the defendants. THE defendant No. 1 has executed balance confirmation and acknowledged the debt on 21st June, 1995. When the defendant No. 1 failed to make repayment, the suit was filed before the Civil Court at Allahabad in the month of August, 1996 and while the case was pending before the Civil Court, RDDBFI Act, 1993 came into force and the suit was transferred originally to D.R.T., Jabalpur and after setting up of DRT, Allahabad, the same has been re-transferred to D.R.T., Allahabad and numbered as T.A. No. 332 of 2000. THE defendant No. 1 alone contested and took the plea that the Bank was charging very excessive interest and that the accounts were not maintained properly, but he undertook to make payment of the dues, if proper calculation is made regarding his loan account.
(2.) It can be mentioned here that against the same group of the borrowers, four loans were granted, although in the different names of business and four suits were filed and all were transferred to DRT, Allahabad. A settlement/compromise was arrived at on the basis of which some amounts had been deposited from the side of the defendants in those four suits and those were also adjusted against their respective loan accounts. As per the compromise arrived at, it could be revealed from the letter of the appellant-Bank dated 8th October, 1998 that the defendant No. 1 was to pay Rs. 10.40 lacs towards full and final settlement of the claims. The said letter itself mentions about the settlement amount in respect of other three concerns of the same group and the letter was addressed to all the four. According to the defendant-respondents, by two instalments by Rs. 5 lacs and Rs. 5.40 lacs had been deposited with the Bank which nullifies the claims of the Bank against the defendant No. 1. To that extent the defendant No. 1 had submitted a petition before the DRT, but the said letter of the defendant No. 1 had been rebutted by the appellant-Bank stating that the amount of Rs. 20 lacs which has been deposited by the defendants' group was adjusted proportionately and rateably against the settlement amounts of the four cases and in that way although a receipt was granted of Rs. 5 lacs in favour of the defendant No. 1, but actually an amount of Rs. 1.60 lacs had only been adjusted towards the loan account of the defendant No. 1. In that way the defendant No. 1 would pay only Rs. 7 lacs (Rs. 5.40 + Rs. 1.60 lacs) against the settled amount of Rs. 10.40 lacs and as such Rs. 3.40 lacs were remaining outstanding. It was also contended in the rejoinder petition of the appellant-Bank which is contained as Annexure No. 2 of the memo of appeal that not only Rs. 3.40 lacs remained outstanding against the defendant No. 1, rather when the compromise terms have failed for non-deposit of the balance amount in time, then the appellant is entitled to get the whole of the claimed amount with future and pendente lite interest. Such rejoinder is dated 7th February, 2002. The adjusted, certificate amount of Rs. 1.60 lacs and the adjusted amount out of Rs. 20 lacs against other three groups had also been annexed. A letter dated 25th November, 2000 of the defendant No. 1 written to the Senior Manager, Allahabad Branch of the appellant-Bank had also been attached which was marked as Annexure Ho. 5, wherein it appears that defendant No. I had admitted that he had deposited only Rs. 7 lacs towards the loan account as per compromise proposal. Such contention of the appellant-Bank regarding non-adjustment of Rs. 5 lacs towards the loan account of defendant No. 1 have been disbelieved by the learned DRT and held that when two receipts of Rs. 5 lacs and Rs. 5.40 lacs had been granted to the respondent defendant No. 1 and when it could not be established that the other three concerns against whom also claim cases were pending of the same group could not be established and hence, relying on those two receipts alone, the - claim of the appellant-Bank has been dismissed on the ground that the settled amount had already been deposited by the defendant-respondent No. 1.
(3.) IN the present case while challenging the impugned judgment Mr. G.C. Mehrotra, learned Counsel for the appellant-Bank has not pressed the first point as mentioned in the Memo of Appeal regarding the factual aspects that the settlement had failed because of non-deposit of the instalments in time, rather he has pressed that the learned DRT have failed to take into consideration the admission of the defendant-respondent No, I by his letter dated 25th November, 2000 to the effect that only Rs. 7 lacs had been adjusted by the appellant-Bank against the loan account and if such admission is taken as it is, then definitely the appellant-Bank is entitled to get a decree of Rs. 3.40 lacs with usual interest together with future and pendente lite. On the other hand Mr. R.L, Arora submitted that although opportunity was given, the appellant has failed to prove that the four concerns although in different names belong to the same group of borrowers and in that way the receipts granted in favour of the defendant-respondent No. 1 were righdy being relied on by the learned Tribunal in dismissing the claim of the appellant-Bank. On perusal of all the papers, it could be found that after settlement was arrived at with the four concerns, at a time the borrowers had deposited Rs. 20 lacs and the same was being rateably and proportionately adjusted towards the accounts of the four concerns in consideration of the hierarchy of the amounts of the settlement. As. per the contention of the defendant-respondent No. 1, out of Rs. 20 lacs deposited by the borrowers' concerns in respect of the four concerns, equal distribution is being made to the tune of Rs. 5 lacs each, then the other accounts besides that of the defendant-respondent No. 1 in other suits; would definitely reveal so. But if the contention of the appellant is correct, then unequal distribution towards rateable and proportionate amount would be adjusted towards the settlement accounts of all the four. When all the four matters were proceeding before the same DRT, then it ought to have been prayed from the side of the appellant-Bank to hear all the cases together, so that there may not be any anomaly in deciding as to whether equal distribution of Rs. 20 lacs was being made against four accounts or there was proportionate distribution. I have been told that two of the cases are still pending before the DRT, Allahabad being Oriental Bank of Commerce v. Jai Maa Sharda Agency T.A. No. 115 of 2000 and Oriental Bank of Commerce v, Dharmendra Kumar T.A. No. 384 of 2000, although one of the cases has been disposed of and the appeal is pending on some other grounds before this Appellate Tribunal.;


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