Decided on August 25,2005



Pratibha Upasani, - (1.) THIS appeal is filed by the appellant/defendant No. 2. Krushikesh Praharaj being aggrieved by the judgment and order dated 7th August, 2003 passed by the learned Presiding Officer P.R.T. I II, Mumbai in Original Application No. 3078 of 2000. By the impugned judgment and order, the learned Presiding Officer allowed the original application in favour of the Bank and ordered all the six defendants to pay jointly and severally to the applicant Bank a sum of Rs. 23,59,911/- together with simple future interest at the rate of 18% per annum from the date of filing of the suit till realization. The learned Presiding Officer also gave certain consequential declarations absolving the defendant No. 7 from the liability and ordered issuance of recovery certificate in the above stated terms. Being aggrieved, the present appeal is filed only by defendant No. 2. Hrushikesh Praharaj.
(2.) Few facts, which are required to be stated are as follows: The defendant No. 1 Konark Computers Pvt. Ltd. is a private limited company carrying on business as manufacturers and sellers of computers and related products. The defendant Nos. 2 to 5 are the Directors and also the guarantors. The defendant No. 6 was sued in his capacity as a guarantor. The defendant No. 7 also was the joint owner of the immovable property together with the defendant No. 3 and was sued as mortgagor. On the request of the defendant No. 1, various cash credit facilities were given to the defendant No. 1 from the year 1989. I n the year 1994, except for two cash credit facilities, all other facilities were discontinued. I n consideration of the applicant Bank having continued to grant other two facilities, the defendant No. 1 through its Directors i.e. defendant Nos. 2 to 5 had executed usual security documents on 26th March, 1992 in connection with cash credit facility against hypothecation of stock. The defendants had also executed usual security documents for cash credit facility against hypothecation book debts. The defendant Nos. 2 to 6 also executed two separate guarantee deeds dated 26th March, 1992 and thereby accepted the joint and several liabilities for the repayment of the amount of Rs. 10 lakh and Rs. 5 lakh respectively. The defendant No. 2 by his undertaking agreed to create second charge on his residential flat bearing No. 303, Aarti Apartments situated at Vazira Naka, Borivli (west), Mumbai-400072 as the collateral security for the due repayment of the amount. This undertaking was executed on 16th December, 1992.
(3.) THE defendant No. 2 filed his written statement and denied claim of the applicant Bank by raising several conventions. I t was contended that the suit was time barred. I t was contended by him that he ceased to be the Director of the defendant No. 1 company from May, 1992. He resigned from the Directorship after tendering resignation letter on 21st May, 1992. I t was contended that no fresh advances were sanctioned to the defendant No. 1 company by the appellant Bank subsequent to March, 1992 and therefore, there was no question of executing documents on 20th August, 1992, and 16th December, 1992, etc.;

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