Decided on September 18,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the final judgment and order dated 31st January, 2005 passed by the learned Presiding Officer, D.R.T., Jabalpur in Original Application No. 72 of 2002, whereby and whereunder a recovery certificate has been ordered to be issued for a sum of Rs. 32,34,148.84 along with cost and pendente lite and future interest at the contracted rate jointly and severally against all defendant-appellants.
(2.) The cases of the parties have been elaborately stated in the impugned judgment itself and as such it is not being reiterated in this judgment. Only the salient features are being stated below for the purpose of disposal of this appeal. The appellant No. 1 is a proprietary firm and appellant No. 2 is the proprietor of the firm and appellant Nos. 3, 4 and 5 are guarantors, who have guaranteed their entire belongings including immovable properties to secure the loan amount of the Bank. According to the respondent Bank, loan was granted to the appellant No. 1-firm under different heads but as the loan account became sticky, then after giving notice instituted the Original Application for recovery of the dues to the tune of Rs. 32,34,148.84. Once the case was decreed ex parte, although the appellants had appeared and took time for filing written statement. Instead of filing of written statement, they filed two petitions which were numbered as D-l and D-2 seeking proper statement of accounts and the stock account at the time of grant of loan, but those petitioners were rejected and without giving any opportunity to file written statement, the case was taken up ex parte for hearing on that very date and judgment was also delivered on that date itself. Against the judgment a review petition was filed, which was also rejected and then appeal was preferred before this Appellate Tribunal, which was numbered as R-352/03. That appeal was heard inter-parties and by judgment dated 18th August, 2004 ex parte judgment was set aside giving liberty to the appellants to file their written statement on a pre-condition of payment of Rs. 5,000/-. After reopening of the case, the appellants not only filed written statement but also filed counter-claim/set-off in the Original Application itself. Replication was filed against the written statement and reply was filed against the counter-claim. In the written statement the case of the appellant is that the then Branch Manager of the respondent-Bank Shri G.K. Nimje for illegal grains had looked the premises of the unit of the appellant No. 1 on 15th September, 2001 behind the back of the appellants, while there was storage of paddy and rice worth Rs. 34 lakh and odd. The appellants objected to such illegal closure of the unit of the appellants and then asked by different letters to open up the unit and allow to sell the godown properties to pay up the Bank's dues. They have even asked the Bank to sell the property by the Bank itself, but none of the letters were given any reply. When those properties started deteriorating and bad smell was coming, then the neighbours objected and P.W.D. had approached the M.D., who asked the appellant to clear the damaged crops, then also the appellant wrote to the Bank but the Bank did not pay heed to it and then the appellants became bound to break the lock of the Bank in the presence of witnesses, then whole damaged garbage was burnt out after making inventories, as such the appellants had submitted in their written statement that the Bank's claim is not maintainable, when the Bank did not take any steps regarding the pledged goods and that by putting lock in the premises of the appellant, damage was caused to the appellants and as such they have claimed damages after setting off the claim of the Bank and with those contentions counter-claim was filed. In the replication filed by the Bank they have just denied the case of the appellant, although no specific denial was made regarding the factual aspect, rather stating that whatever Mr. Nimje had done was within the exercise of his power as a Branch Manager. Regarding the counter-claim it was contended from the side of the respondent Bank that liberty was given by the Appellate Tribunal only to file written statement and there was no scope to entertain any claim/set-off as no such liberty was given by the Appellate Tribunal. On the basis of the pleadings of the parties learned Tribunal had framed the following issues: (i) Whether the defendant can file counter-claim in view of the order passed by the Hon'ble D.R.T.? (ii) Whether Shri Ghanshym P. Nimje the then Branch Manager of the applicant branch of the Bank, due to partial and mala fide attitude illegally locked the premises of the defendant No. 1 ? (iii) If yes, whether defendants are entitled for set-off as well as counterclaim as prayed? (iv) Whether defendant No. 5 has not stood as guarantor/mortgagor? (v) Whether interest was accrued to be charged @ 15.5% per annum? (vii) Whether there is miscalculation of amount of Rs. 1,30,279/- in the statement of accounts filed by the applicant Bank? (viii) Whether the applicant Bank is entitled to recover a sum of Rs. 32,34,148.84 with interest and cost from the defendants? From the side of the appellant Bank an affidavit in the form of evidence of Mr. G.P. Nimje, Branch Manager was filed alongwith the Original Application, but after reply being given, no affidavit was filed by Mr. Nimje, rather the present Branch Manager and other Bank officials have submitted their evidence in the form of affidavit. From the side of the appellants also, several witnesses have been examined including Mr. Ashok Jain, photographer, who had taken snaps of the locked premises of the Bank as per allegation made by the appellants and Shri Anoop Patel, who happened to be the chowkidar in whose presence the lock was put.
(3.) THE learned Tribunal after considering the materials on record and the evidence adduced by the parties had found the story as depicted by the appellants to be false and the case of the respondent Bank to be genuine. In that respect although the issue No. 1 was decided in favour of the appellant, but on merit the counterclaim/set-off have been rejected. Issue No. 5 had also been decided in favour of the appellants holding miscalculation in the statement of accounts filed by the Bank but deducted amount of Rs. 1,30,279/- from the claimed amounts of the Bank. Regarding issue No. 3 it was held that defendant No. 5 was also a guarantor/ mortgagor.;

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