- (1.) THIS appeal has been preferred against the judgment dated 23.09.2004, passed by learned SubJudgeII, Dhanbad in connection with Title Mortgage Suit No.34/96 and the decree signed on 04.10.2004 whereby the suit brought by the appellant/plaintiff was dismissed.
(2.) THE case of the appellant in the Court below was that the appellant/plaintiff, who is a body corporate and constituted under the Banking Companies (Acquisition and Transfer of Undertaking Act (Act V of 1970) having its head office at Express Tower, Nariman Point, Bombay and a branch office at Sindri, P.S. Sindri, District Dhanbad, carrying out its business of banking and is exempted from all the provisions of Bihar Money Lenders' Act, had considered the loan application filed by the defendant and provided cash credit facilities to the extent of Rs.56,000/ on 21.03.1990 and later it was extended up to Rs.1,63,000/ and a term loan of Rs.2,48,000/ on 21.03.1990 was sanctioned. The loan facility was provided to the defendant for manufacturing of equipments and engineering. The defendant/respondent availed the loan facility provided by the plaintiff bank after executing necessary documents. Since the defendant/respondent failed to repay the loan amount, the cause of action arose, the notices were issued demanding payment but the same were not attended and the loan advanced to the defendant remained unpaid. Thereafter the appellant/plaintiff brought a suit vide Title Mortgage Suit No.34/96 in which the defendants were served with notices. During pendency of the suit defendant No.1 died and her legal heirs were directed to be substituted but the requisites of notices were not filed and therefore, the suit against those substituted defendants stood dismissed under OrderIX, Rule 2 of the C.P.C. Defendant No.2 appeared but did not file written statement and therefore learned trial Court proceeded under OrderVIII Rule 10 of the C.P.C. When the plaintiff bank failed to prove the necessary documents, the suit stood dismissed and hence this appeal.
(3.) LEARNED counsel appearing for the appellant has assailed the impugned judgment on the ground that under OrderVIII Rule 10 C.P.C. the trial Court should have pronounced the judgment against the defendant who had failed to filed written statement but it was not done. The plaintiff/appellant examined a witness and that witness was not crossexamined because nobody appeared on behalf of the defendant. The appellant/plaintiff was never directed to prove documents though the same were available. The trial Court has committed gross error by not passing decree in favour of the plaintiff/appellant in a case where no written statement was filed and the Court proceeded under Order VIII, Rule 10 of the C.P No issues were framed, therefore, the plaintiff was not supposed to adduce evidence in support of the claim made by him in the plaint. Learned counsel has placed reliance on the judgment reported in (1999) 8 SCC 396 (Balraj Taneja v. Sunil Madan).;