Decided on May 05,2005



P.K.Deb, - (1.) THIS appeal has been preferred by the above named appellant-bank against the part of the judgment and order dated March 11, 2002, passed by the then presiding officer, DRT, Jabalpur in O. A. No. 246 of 2000, whereby and whereunder the claim of the bank has been reduced to Rs. 17,57,199 from the claim of Rs. 34,17,000 and also reduced the interest from the bank rate to that of simple interest.
(2.) The brief facts of the case are as follows : Respondent No. 1 is a partnership firm having partners defendants Nos. 2 to 7 and Shri Vishnu Kumar Rongta (deceased) and was engaged in doing business of steel re-rolling mill and for the purpose of purchase of raw material and meeting other business needs, partners of respondent No. 1-firm applied for financial help from the appellant-bank and cash credit loan was sanctioned to the tune of Rs. 15.50 lakhs at interest of 16.5 per cent. per annum with quarterly rests together with other charges on the cash credit facility. The partners had bound them by executing several documents as required by the appellant-bank and respondent No. 9--Smt. Savitri Devi Rongta had also created equitable mortgage by hypothecating land properties including the house property. The loan was sanctioned on February 24, 1988. The limit of Rs. 15.50 lakhs had been enhanced to Rs. 23 lakhs on August 29, 1989, and on September 6, 1999, all banking documents had been executed by the partners and guarantors. Time to time the balance amount was acknowledged by confirmation slips which were marked as exhibit No. A-45-53. The last acknowledgment was on July 1, 1998. Revival letters were also there which were marked as exhibit Nos. A-47 and A-54, the last of which was dated August 21,1998. The respondents failed to pay up the debts as per the agreement arrived at and ultimately after due notice Original Application No. 246 of 2000 was filed on June 21, 2000, for a claim of Rs. 34,17,000. For and on behalf of the bank six affidavits were filed by way of evidence by the personnel of the bank who were present at the time of granting of loans and execution of banking documents. The respondents being defendants in the original application had contested the case by filing the written statement. Taking of loans have not been denied. Execution of documents had also not been denied, but the only plea was that signatures were obtained on blank documents. The main plea was that the business of the respondents/defendants had suffered due to non-co-operation of the bank's officials in not disbursing the loan amount in time. Their plea was that in the year 1997 the cash credit limit was ordered to be enhanced from Rs. 23 lakhs to Rs. 30 lakhs, but ultimately the same had not been disbursed and the respondents had not been allowed to take advantage of such enhancement as a result of which the factory of the respondents had to be closed down and in that way after 1997 the bank was not entitled to get any interest at the bank rate. There was also plea regarding the admissibility of the mortgaged deeds.
(3.) ON consideration of the pleas being taken by the parties and evidence adduced, the learned presiding officer, DRT, Jabalpur, had rejected all other pleas of the respondents-defendants except that of the mortgage regarding land property should be restricted to 1,93,406 sq.ft. instead of whole land property mortgaged as the rest of the property were agriculture property and had not been converted into construction or factory. The learned presiding officer had also reduced the claim of the appellant-bank holding that the legal notice issued by the bank on July 2, 1999, was only for Rs. 27,58,199 which included bank interest up to December 31, 1998. The reason given is that against the notice the respondents had given reply which was marked as exhibit No. D/1/7 stating that for not giving proper co-operation by the bank and not realising the enhanced cash credit limit of Rs. 30 lakhs, the factory and business of the defendants had to be closed down and the reasonings given by the appellant-bank in the rejoinder to the written statement, that the business of the defendants were not viable, etc., were only afterthought and that had not been pleaded in the original application. It should be mentioned here that during the pendency of the original application the defendants had deposited an amount of Rs. 10,01,000 on sale of some of their properties and the same has been adjusted towards Rs. 27,58,199.90 and thus reducing the same, amount to Rs. 17,57,199.90. It was further ordered that up to the month of November, 2001, the bank will get simple interest at 10 per cent. on Rs. 27,58,199.90 and after November, 2001, the bank will get interest at the same rate on balance amount of Rs. 17,57,199. It has been ordered also in the impugned judgment that the decreed amount can be recovered by sale of 1,93,406 sq. ft. on the immovable property and also from the construction thereon.;

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