Decided on July 29,2005



Pratibha Upasani, - (1.) THIS substantive appeal is filed by the appellant/original defendant J.R. Kanani being aggrieved by the judgment and order dated 23rd April, 2003 passed by the learned Presiding Officer of the D.R.T.-II, Mumbai in Original Application No. 2970 of 2000. By the impugned judgment and order, the learned Presiding Officer allowed the application in favour of the applicant bank and against the defendant and ordered the defendant to pay to the applicant bank various sums as mentioned in CIs. (b) and (c) of the operative portion of the impugned order. The learned Presiding Officer also gave certain consequential declarations and directed issuance of recovery certificate in the above stated terms. Being aggrieved, the present appeal is filed.
(2.) Few facts, which are required to be stated are as follows: The bank sued the defendant by filing Original Application against him for recovery of: JUDGEMENT_565_TLDR0_20050.htm The defendant was carrying on business in the name and style of Pooja Enterprises. Prior to 14th May, 1996, it was a partnership firm, the defendant and one Ms. Hiraben Ramdas Kanani, being partners. The applicant bank had granted credit facilities to the firm on 23rd January, 1992. The facilities were lastly renewed on 15th December, 1994 for the period of one year. The facilities enjoyed by the firm were: JUDGEMENT_565_TLDR0_20051.htm The firm was dissolved by Deed of Dissolution dated 24th January, 1995. All assets and liabilities of the firm were taken up by the defendant who executed demand promissory notes, letter of continuity, letter of sale proprietorship, agreement of hypothecation in lieu of the facilities, etc. On his failure to clear the outstanding, acknowledgement of debt was executed on 18th December, 1998. The defendant did not clear the outstanding even thereafter in spite of several demands made by the bank. Hence, the present Original Application was filed by the bank. The defendant appeared and contested the Original Application by filing written statement, inter alia contending that the Original Application did not disclose the cause of action, that the Original Application was barred by limitation and that the defendant was entitled to set off. The defendant admitted signatures on the documents but it was contended that he was made to sign when the documents were blank. The rate of interest was also denied. Case of the defendant in the written statement, was that in the year 1996, he offered to sell office premises at Bhuleshwar and sought the applicant bank's permission to sell the same. The applicant bank however did not grant the permission. It was contended by the defendant that if the bank had granted permission at that time, the property would have fetched Rs. 17 lacs, because thereafter the prices had come down at least by 40%. Grievance of the defendant was that three hundies mentioned in para 17 of the written statement aggregating to Rs. 3,09,520/- drawn by the defendant were accepted by one Ganesh Anhydrite Limited. It was contended that the said hundies were returned unpaid by Canara Bank, the bank of the acceptors. However, the applicant bank did not return the hundies to the defendant and that in fact, the hundies got misplaced. It was contended that while the applicant bank informed to the defendant that hundies were with Canara Bank, the Canara Bank informed the defendant that they had been returned to the applicant bank. It was contended that these hundies were required to be produced in the action filed against the drawer but were not returned by the bank. The defendant contended that he therefore lost the remedy against the acceptors. Another grievance of the defendant was that he had given three LIC policies, numbers of which were given in para 19 of the written statement for Rs. 2 lacs each to the applicant bank who however, did not give credit to the amount. The defendant had PPF account and credit was also not given to the balance in the same. The dismissal of the Original Application was sought on the above grounds by the defendant and in fact the defendant stated that he suffered loss because of calculations of the bank.
(3.) THE applicant bank filed claim affidavit and produced evidence to support its claim like sanction letter dated 15th December, 1994, demand promissory note, letter of continuity, sole proprietorship, hypothecation of book debts, letter of bills purchase, letter of pledge, letter of acknowledgement and statement of accounts. THE applicant bank also filed additional affidavit of Mr. M.M. Bhutani to which the copies of the letters from LIC had been annexed showing that the policies had lapsed. THE said affidavit also stated that PPF account was there.;

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