Decided on May 31,2005



P.K.Deb, - (1.) THIS appeal has been preferred against the judgment and order dated 4th February, 2004 passed by Mr. K.D. Khan, Presiding Officer, DRT, Jabalpur in transfer application No. 863/98, whereby and whereunder the claim of the appellant for recovery of Rs. 11,30,661/- against the defendant-respondents has been dismissed.
(2.) There is a chequered history of the case. The erstwhile New Bank of India have been amalgamated in the appellant Punjab National Bank vide notification dated 4th September, 1993. The defendant-respondent No. 1 is a proprietary firm owned by Sunit Gupta, wife of Mr. Bharat Kumar alias Ramesh Kumar, who happens to be the defendant respondent No. 2 in the case. The defendant No. 1 for carrying her business of production of oil was granted loan of cash credit (hypothecation) of Rs. 4 lakh on 5th October, 1994 and another loan was granted to the tune of Rs. 4 lakh under cash credit (pledged) account on 10th March, 1996. Defendant No 2 stood as a guarantor of defendant No. 1 and created equitable mortgage by deposit of title deed on 13th June, 1997. Defendant No. 1 in the cash credit (pledged) Account on two occasions in the month of April, 1996 pledged 1700 bags of Soyabean in their godown, The defendant respondent Nos. 3 and 4 were made parties as there were demand of sales tax against the defendant Nos. 1 and 2 as their demand is on priority basis. When the defendant respondent Nos. 1 and 2 had failed to pay up their dues, then there was application by the defendant No. 2 for sale of their pledged goods and adjust the same with the dues of the Bank under two heads as already mentioned above. The dues of the Bank have been admitted by the borrowers. An inspection was made by the applicant Bank on 13th August, 1987 of the pledged goods in the godown and found that instead of Soyabean bags in the godown contained groundnut husk and an inventory was prepared in presence of Notary Public, Indore on 17th August, 1997 and 18th August, 1997 and it is the case of the appellant Bank that defendant Nos. 1 and 2 deliberately Cheated the appellate Bank and instead of Soyabean, they had pledged groundnut husk. It was their further contention that defendant No, 1 had operated the said godown without knowledge and permission of the appellant Bank and they had sold away Soyabean and placed husk in lieu of and whole action of the defendant is against the pledged agreement. They acknowledged the debt of Rs. 5,36,696/- under the cash credit (pledged) account and Rs. 5,93,965/- against cash credit (hypothecation) loan. The appellant Bank then claimed both the amounts clubbing together by filing a Civil Suit No. 2-B/93 before the Civil Judge at Indore. While the suit was proceeding before the Civil Court, the RDDBFI Act, 1993 came into force and hence the case was transferred to the DRT, Jabalpur, wherein the case is renumbered as T.A. No. 863/98. The case of the defendant Nos. 1 and 2 was that the godown was under lock and key and in the custody of the appellant Bank and if anything has happened in the godown, the same must have been done at the negligence of the Bank and if the pledged articles would have been sold in time, the defendants would have got further money after adjusting the amount under the two accounts. They have also filed a counter claim of damages, etc. Both the parties adduced evidence--some at the stage of Civil suit and some before the Tribunal. After considering the cases of both the parties, several points were considered by the then Presiding Officer, DRT, Jabalpur, such as maintainability of the claim of the amounts under two heads clubbing together, whether the defendant respondent's liability is there in getting the pledged goods decayed/ destroyed and came to the finding that 1700 bags of Soyabean at the relevant time were valued more than Rs. 10 lakh and hence the whole claim was dismissed keeping the other points in favour of the appellant. That judgment of dismissal was challenged before this appellate Tribunal in appeal No. R-131/02 and the same was disposed of by my predecessor on 15th January, 2003. The dismissal judgment was set aside by this appellate Tribunal by the order as mentioned above and remanded the same on the ground that the Tribunal had not evaluated the pledged goods and went on surmises and until and unless the same is being evaluated properly, dismissal order cannot be sustained. It was further observed that even if value of the pledged goods comes up to Rs. 10 lakh, then also it is to be decided as to whether the appellant Bank is entitled to get decree for the balance amount as claimed or not.
(3.) THE appellate Court had given opportunity to adduce further evidence on the disputed factual point. On remand Tribunal had asked for the statement of accounts showing the value of the Soyabean bags. Bank filed photocopy of the insurance cover wherein stock of Soyabean pledged was shown to be worth of Rs. 5 lakh. On the other hand defendant borrower filed rate list issued by the Krishi Upaz Mandi Samiti, Indore and Krish Upaz Mandi Samiti, Itarsi. As pledged goods were at Indore, the Tribunal relied on the rate list issued by the Krishi Upaz Mandi Samiti, Indore from April, 1986 to August, 1987 and taking average of minimum or maximum value per quintal in the month of August, 1987 and model rate as shown by Indore Samiti as Rs. 600/- per quintal, decision have been arrived at that in the month of August, 1987, the value of 1700 bags of Soyabean came to Rs. 10,20,000/-and as such was held from the statement of accounts filed by the Bank that in the month of August, 1987 Bank was to get Rs. 9,79,845.71 as dues clubbing together two accounts and hence the appellant Bank is not entitled to get any amount revovered from the borrower. As the counter claim was not properly filed by paying Court fees, the same was dismissed by the learned Tribunal and as the claims of the Bank would be very well adjusted towards the value of Soyabean pledged, the claim has again been dismissed, hence the present appeal.;

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