Decided on June 22,2005



Md.A.Khalique, - (1.) THE applicant has filed the claim to recover Rs. 15,77,530/- from the defendants stating inter alia that the defendant No.1 is a proprietorial firm of which defendant No.2 is the sole proprietor who approached the applicant for financial assistance of Rs. 9 lacs under Project Finance Scheme and Rs. 3,75,000/- under the NEEF Soft Loan Scheme and the applicant by its letter of intent dated 15th August, 2000 informed the defendant its readiness to sanction the required loan informing him the terms and conditions to be fulfilled. Defendant No.2 on behalf of defendant No.1 accepted the terms and conditions and acknowledged the sanction accorded by the applicant. Defendant No.2 executed the loan agreement on 25th August, 2000, deed of hypothecation hypothecating the whole of the movable properties of the defendant No. 1 including its movable plants and machineries etc. and also created equitable mortgage as collateral security over his landed property described in Schedule 'A' of the application in favour of the applicant by deposit of title deed. Term loan of Rs. 9,00,000/- carries interest at the rate of 15.5% p.a. while soft loan of Rs. 3,75,000/- carries interest at the rate of 1.5% p.a. payable quarterly. Defendants availed the loan but failed to repay the installments towards repayment of loan as a result the applicant issued letters on various dates demanding repayment of loan amount with interest. Defendants did not respond, as a result the applicant had to send recall notice and despite such notice defendants failed to comply. THE statement of account maintained by the applicant in the usual and ordinary course of business and the outstanding balance in respect of both the loans stood at Rs. 15,77,530/-. THE applicant has prayed for issuance of certificate to recover the said amount with pendente lite interest and cost of the application. THE applicant has also sought the relief of attachment and sale of hypothecated and mortgaged properties and to appropriate the proceeds thereof towards liquidation of its claim.
(2.) The defendants contested the application by filing written statement taking the plea that on perusal of the project reports submitted, the applicant decided to advance loan and in response the defendant No.2 had executed relevant loan documents but no amount of loan was ever disbursed to the defendants. Accordingly, the defendants' plea is that there was no cause of action and the statement of account on the basis of which claim has been made is fictitious and not reliable. The applicant is support of its claim adduced evidence on affidavit sworn by Mr. Phani Deka, General Manager (TED F) of applicant who has fully corroborated the facts stated in the Original Application and proved all the relevant documents that are marked as exhibit A-I to exhibit A-13. Defendant No.2 also filed affidavit in support of the contentions made in the written statement and again denying disbursement of the stated loan account. It is also stated that the stated buying of machineries from the Gee Gee (Foods and Packaging) is imaginary as the defendants never ordered any machineries from the said company nor received any such machineries.
(3.) ARGUMENTS from both sides were heard and 27th January, 2005 was fixed for order and on that date this Tribunal after perusing the pleadings and particularly the denial of the defendants about disbursement of loan amount by way of clarification called upon the applicant to file document, if any, to prove the disbursement of the loan along with an affidavit as this Tribunal felt it necessary for the interest of public money. Accordingly delivery of order was deferred. On 28th February, 2005 the applicant submitted a rejoinder affidavit coupled with some documents that are marked as exhibit A-15 to exhibit A-21 and on that date learned Counsel for the defendants sought time to file reply. On the next date i.e. on 6th April, 2005 again prayer made by the learned Counsel for the defendants seeking further time to file rejoinder in view of the rejoinder affidavit filed by the applicant. Time was allowed but on the next date learned Counsel for the defendants simply filed one written argument without filing any rejoinder affidavit. On perusal of the said written argument, I find it is nothing but a reproduction of the facts stated in the written statement. Fresh argument heard on that date.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.