N.K. Jain, J. - (1.) - This appeal is directed against the judgment and decree dated 25th April, 1986 passed by District Judge, Jaipur District, Jaipur in Civil Suit No. 6/1979 whereby the learned lower court dismissed the suit of the plaintiff appellant for recovery of Rs. 47,247.10 ps.
(2.) The plaintiff appellant filed a suit for recovery against the defendant- respondents which was contested by the defendants in lower court. The learned lower court framed 11 issues. Both the parties led their evidence.
(3.) The learned lower court vide its impugned judgment and decree, dismissed the suit of the plaintiff appellant in view of finding of issue Nos. 2 and 10. The learned lower court has discussed the entire evidence of both the parties in detail while deciding the issue Nos. 2 and 10. The lower court has recorded a finding that it is an admitted fact that defendant took a loan of Rs. 29,500/- on 24.05.1974 for the purchase of a vehicle. The defendant added Rs. 7410/- from his own pocket and purchased Matador for Rs. 36,910/- on 24th May, 1974. It is also not in dispute that when defendant failed to make the payment of remaining amount of loan, then the Bank seized Matador on 22.06.1976. Thereafter on 22.06.1976 itself, a notice Ex. D/1 was given by the Bank to deposit the entire amount within fortnight, failing which the vehicle seized will be auctioned. The plaintiff Bank had taken the vehicle in its possession but thereafter neither the vehicle was released/returned nor auctioned by the Bank for about 2 and 1/2 years and only on 20th January, 1979, the present suit was filed for recovery of the amount. The lower court has considered that plaintiff's witness PW1 Narendra Kumar KasliwaI who has admitted in his statement that against the loan amount the vehicle Matador, which was hypothecated, was seized on 22.06.1976 and the suit was filed on 20th January, 1979. This fact is also proved from the statement DW1 Ravi Kant DW2 Ramzan Mohammed and DW3 Omprakash Mistri. The learned lower court has also taken into consideration that Ex. D-1 notice dated 22nd June, 1976 shows that on that date the original amount due was only Rs. 17,250/- and interest of Rs. 11,200/- and total Rs. 28,450/- and out of this amount, a sum of Rs. 10,466/- had already been deposited and due amount was only Rs. 17,984/- which was directed to be paid within a period of 15 days, failing which it was stated in the notice that vehicle will be auctioned. The last date for deposit of due amount was 2nd July, 1976. However, neither the defendants paid the due amount nor bank took any action for auction of the vehicle in question. The Statement of defendant's witnesses shows that the value of the vehicle on the date of seizure was Rs. 35,000/-. DW1 Ravi Kant has stated that he was going to sale the vehicle in July, 1976 for Rs. 36,000/-, but it was seized by the Bank. DW2 Ramzan Mohammed has also stated that vehicle was going to be sold for Rs. 36,000/- but the bank Manager told for not selling the vehicle. DW5 Ram Niwas has also stated defendant Ravi Kant was going to sale the vehicle for Rs. 40,000/-. Even otherwise, it is on record that the vehicle was purchased on 24th May, 1974 for Rs. 36,910/- and it was only on 22nd June, 1976, the vehicle was ceased by the Bank. As per notice Ex. D-1, the due amount was only 17,984/- Ex. D-1 dated 22nd June, 1976 shows that 23 instalments had fallen due for Rs. 17,250/- along with accrued interest of 11,200/- and out of this total amount of Rs. 28,450/-, a sum of Rs. 10,466/- had only been deposited. Therefore, a demand was made for Rs. 17,984/-. The learned counsel for the appellant does not dispute the above fact that the vehicle was ceased on 22nd June, 1976 and notice Ex. D-1 was issued on 22nd June, 1976 itself to deposit the amount within a period of fortnight. It is also mentioned that in case the payment is not made, then the vehicle will be sold by way of auction and amount will be recovered.;