HEMANT GUPTA, J. - (1.) THE plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby its suit for recovery was dismissed for the reason that the defendant cannot be burdened with liability on the basis of statement of accounts Ex. PX.
(2.) THE plaintiff filed suit for the recovery of Rs. 6619.09 on 21.12.1976 on the ground that the defendant applied for finance assistance in the form of cash credit account for a sum of Rs. 40,000/-. On that request, limit of Rs. 40,000/- was granted to the defendant in July, 1969 and the agreement of loan was renewed on 23.8.1971. The defendants have also pledged their goods and machinery with the plaintiff bank to secure the payment of loan i.e. the amount drawn within the limits, mentioned above. It is alleged that the defendants acknowledged their liability to pay the amount due vide their letter dated 15.11.1974. Plaintiff received a sum of Rs. 2700/- on 13.12.1974 by sale of stocks of the defendant lying pledged with the plaintiff bank and also received a sum Rs. 2800/- on 11.12.1975 by sale of machinery pledged by the defendant with the plaintiff bank. After adjustment of this amount a sum of Rs. 6619.09 was found due and payable by the defendant. The defendants filed written statement dated 28.1.1978 wherein they admitted the pledge of goods with the bank but denied pledging of machines. It was stated that the plaintiff has got signatures of the defendant on blank form without explaining the contents in the year 1969. However, subsequently, the defendants have admitted the pledging of the machines under the mid-term machinery loan on 5.5.1970 which loan was repaid after a very short term. It is alleged that the bank sold the machines without any authority and sale price was also far below the price of machinery. The defendant alleged that 12 machines were lying outside the store which was never pledged with the bank but the bank had also taken delivery of these machines worth Rs. 3,000/-. The defendant further stated "that the defendant is certainly entitled to have the price of these goods appropriated in the loan in case it is held that there is some subsisting loan liable to be recovered from the defendant being within time. The defendants reserve their right to recover these goods or the price thereof from the bank".
(3.) IN para No. 4 of the written statement, the defendant has admitted that the hosiery goods and yarn lying in the godown were in possession of the bank and the bank by their negligence did not see the bursting of a drain pipe which resulted in the flooding of the godown and a heavy loss to the goods. The defendant disputed the charge of increased rate of interest which was never agreed to. The defendant denied the liability said to be acknowledged. It is alleged that some part of the document has been fabricated. The defendant has also alleged that the suit is barred by time. Machinery and stocks were sold negligently and illegally and do not in any way extend the limitation. It is relevant to point out that before filing of the written statement, the defendant has moved an application under Order 11, Rule 14 and Order 12, Rule 5 of the Code of Civil Procedure for the production of documents on 29.9.1977. The defendant has inter alia sought the production of agreement of loan of July, 1969, 23.8.1971 as well as statement of account starting from July, 1969 up to date. The plaintiff submitted his reply dated 12.12.1977 wherein the agreement of July, 1969 as well as the statement of account as sought or was produced. It was stated that there is no renewed agreement dated 23.8.1971 or documents pertaining to the sale of stocks. The learned trial Court disposed of the application on 3.1.1978. It was thereafter, that the defendant has filed written statement. It may further be noticed that the defendant has not disputed any entry in the statement of account so produced by the plaintiff although the document of acknowledgement was alleged to be fabricated and that the right of the bank to sell the machinery and that the grievance in respect of sale of machinery and stocks at lesser value was made.;