Decided on March 23,2006



P.K.Deb, - (1.) THESE two appeals have been heard analogous and a common judgment is being passed as both the appeals arise out of the same cause of action as arose in T.A. No. 5/2000, which was disposed of on 13th June, 2003.
(2.) Appeal No. R-321 of 2003 has arisen out of the dismissal order recorded in the impugned judgment in T.A. No. 5 of 2000 and appeal No. R-382 of 2004 has been filed against non-consideration of the counter-claim made by Anamika Tourism Complex and its partners, who are the appellants in appeal No. R-382 of 2004 and respondents in appeal No. R-321 of 2003. The brief facts of the case are as follows: 1. Anamika Tourism Complex-respondent No. 1 in appeal No. R-321 of 2003 and appellant No. 1 in R-382 of 2004 was initially a proprietary firm doing business in tourism. Shankar Lal Sah since deceased was the sole proprietor of the firm. For construction of hotel the proprietary firm was sanctioned and disbursed term loan of Rs. 19.00 lacs by the Allahabad Bank i.e. the appellant in appeal No. R-321 of 2003 and respondent in appeal No. R-382 of 2004 on 27th April, 1989 and respondent Nos. 3 and 4 of appeal No. 321 of 2003 stood as guarantors. Later on the proprietary firm was changed into a partnership firm with all its assets and liabilities of the proprietary firm of Anamika Tourism Complex and the same was informed to the Bank vide letter dated 20th October, 1990. The partnership firm was again granted term loan of Rs. 12.60 lacs on 10th November, 1990 and according to the Bank the respondent Nos. 2 to 6 had executed and signed requisite documents in favour of the Bank on 24th October, 1990. According to the Bank such documents were created as consolidated documents for both the loans granted as mentioned above. When the accounts of the firm based at Nainital became sticky, then a civil suit was filed on 27th June, 1995 before the Civil Judge at Nainital. It should be mentioned here that the respondent Nos. 2 (since deceased), 5, 6 and 7 became partners of the firm and respondent Nos. 3 and 4 (since deceased) stood as guarantors of the partnership firm, the erstwhile proprietor respondent No. 2 Shankar Lal Sah had mortgaged his immovable properties as security in the form of equitable mortgage created on 27th April, 1989 and 24th December, 1999. The balance amount of the term loan granted to the proprietary firm amounting to Rs. 22,52,807.60 was brought forward and transferred in the partnership account of the firm on 24th October, 1990. According to the Bank respondents had acknowledged the liability on 16th July, 1993 assuring payment of Rs. 49,40,629.76. That the legal notice was issued to the partners and guarantors on 9th May, 1994. The defendant-respondents received such notice on 14th May, 1994 and no reply was made meaning thereby the borrowers and guarantors did not deny the Bank's dues. It has further been asserted that respondent No. 5 Smt. Sushma Devi, wife of Shankar Lal, had deposited Rs. 50,000/- through the cheque of current account No. 648000, which was credited in the term loan account on 20th July, 1994 by debiting the same from the current account of respondent No. 5. Basically the civil suit was filed as a mortgage suit for a sum of Rs. 76,79,550/-. During the pendency of the suit, Tribunal was set up and hence the case was transferred to the D.R.T., Allahabad wherein adjudication took place.
(3.) THE defendant-respondents contested the suit by filing written statement taking various pleas such as mortgage was not valid in the eye of law and the documents of the Bank were created by taking signature of defendant-respondents on blank papers and that the interest claim was excessive and the second loan of Rs. 12.60 lacs had never been disbursed although sanctioned. THE Bank had also filed replication to the written statement denying all averments by the respondents defendants as made in the written statement. In support of the claims of the Bank two Bank officials, namely Mr. S.C. Sahgal and Mr. S.K. Garg had filed affidavits by way of evidence and exhibited the documents of the Bank. Regarding the counter-claim made by the firm and its partners, no adjudication had been made at all as is revealed from the impugned judgment, although while stating the facts of the case, it was mentioned that counter-claim had been made. In the counter-claim practically the defendant-respondents raised all their averments made in the written statement and claimed damages and not disbursing the loan sanctioned to the defendants respondents.;

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