VIKRAMADITYA PRASAD, J. - (1.) THIS Money Appeal has been preferred against the judgment and decree dated 16th day of October, 1993 (decree signed and sealed on 25.11.1993) passed by Sri Sharangdhar Singh, Subordinate Judge, Seraikela in Title (Mortgage) Suit No. 7 of 1988, whereby and whereunder he has pleased to decree the suit in part with 6% simple interest directing the respondents/defendants to make payment the dues in thirty six installments and also without cost of the suit.
(2.) THE Indian Overseas Bank on an application of the defendants sanctioned a loan of Rs. 9.01 Lacs on 17.9.1979. The defendant respondent No. 2 Lily Purkayastha wife of Col. P.C. Purkayastha (Retd.) defendant respondent No. 3 had applied for loan as they had a business functioning as M/s. Jaiguru Tyre Sales, a Sole Proprietorship concern having its office and factory at C -14 Phase VI, Adityapur, P.S. Adityapur, District Singhbhum (East). The advances were made in following manner : '' (i) Term loan -I for construction of boundary wall etc. for Rs. 1.05 Lacs at the margin interest of 40% 2% OBR minimum 11% P.A. with quarterly rest. (ii) Term loan -II for purchase of machinery for Rs. 2.21 Lacs margin interest 25%, 2% OBR minimum 11% P.A. with quarterly rest. (iii) Cash credit for Rs. 50,000/ - 5% ' OBR minimum 14% quarterly rest. The plaintiff Bank advanced the aforesaid term loan to the tune of Rs. 1,05,000/ -to defendant Nos. 1 and 2 on 19.9.1979. Defendant No. 1 and 2 executed and delivered some documents to secure due repayment of the loan amount with all agreed terms of interest, costs, charges etc. on the same day i.e., 19.9.1979. Thereafter the defendant did not pay the installment as agreed in that deed. Thereafter the deed executed in favour of the plaintiff by the defendants were renewed as they had acknowledged the liability secured in those deed on 1.9.1982 and 4.3.1985, 3.5.1980. They also acknowledged the dues on 23.10.1982 and 4.3.1985 making them liable for the repayment of the outstanding loan with respect to the promissory Note dated 3.5.1980 and thereby they agreed to acknowledge an amount of rupees one lac seventy five thousand two hundered 58 paise seventeen. Rs. 3,69,305.15 paise and Rs. 1,42,600.60 paise respectively including interest calculated upto 30.12.1984. Thereafter on several occasions they acknowledged the aforesaid dues but failed to pay the amount or the interest. Then the Bank gave final notice on 16.8.1985 recalling the facilities granted and to repay the bank 'sdues which on that day stood at Rs. 7,42,171.42 paise but in respect of that no payment was made and the last payment that was made by the defendant was of Rs. 2000/ - on 28.2.1983. As per the books of account maintained by the plaintiff bank some of Rs. 2,53,913.80 was due in the loan account No. 1 and a sum of Rs. 5,33,839.00 stood due against term loan account No. 2 and a sum of Rs. 2,32,798/ - stood due against cash credit account including the interest calculated upto 25.2.1988 and all the defendants according to plaintiff are jointly and severally liable to pay the amount. By the date of filing of the suit i.e., on 21.3.1988 the total amount of Rs. 10,20,550.8 has become due. The further case of the plaintiff that the hypothecated articles the seized and put on auction sale for realization of the loan and also for a mortgage decree with respect of the immovable property by selling the same and to adjust the net sale proceeds towards satisfaction of the debt. And if it is not sufficient to liquidate the amount then personal decree against the defendants be passed making them jointly and severally liable. The cause of action for the suit arose on various dates and on 3.10.1982 and 4.3.1985 the dates of various transactions made between the parties relating to the aforesaid loan. The prayer was made for a decree of Rs. 10,20,550.80 paise together with further interest @ 11.85% on the term loan account and at the rate of 15% on Cash Credit Account per annum with quarterly rest penden -tilite and future interest until actual payment. For a further order and decree for sale of hypothecated goods and for a preliminary mortgage decree in accordance with order XXXIV, Rule 4 of the CPC. Besides prayer for appointment of Receiver and attachment before judgment. The land on which factory deed exist was shown in the schedule of the plaint. The defendants appeared and contested the suit. They denied the claim of the plaintiff and a plea was taken that the suit was against order VII, Rule 2 and 11 as well as Order VII, Rule XVII of the CPC and the suit is liable to be disposed of under Order XV of the CPC. The further case of the defendant was that in the year 1979 the loan of Rs. 3.26 lacs and Rs. 50,000/ - Cash credit facility sanctioned by the plaintiff and the factory started working manufacturing electric re -soled tyre. The defendants also refunded about three lacks of rupees to the plaintiff bank till the end of 1982 against aforesaid loan. In the year 1981 the Industries of Adidtyapur were hit by sever power load shedding and as such the 100 HP Transformer got burnt and was beyond repair. Later on the same was replaced after few months. Meanwhile the quality of work of the defendants was badly affected causing return of defective re -soled tyres to be put for re -solling at the cost of the defendant. All such facts were reported to the plaintiff time to time. In the year 1982 the defendant was given an order by the D.G.S. for re -treading of Government 'sDefence tyre at the rate of 400 tyres per month but the plaintiff has stopped the working capital of cash credit limit without any intimation thus the golden chance of start making profit was lost to the defendant. The defendants requested the plaintiff Bank for rehabilitation so that the aforesaid orders could have been complied with but the plaintiff bank did not help and the fresh move of the defendants to switch over to the slow but sure boiler system in want of adequate power was totally sabotaged in spite of repeated demand. The last letter in this connection was letter No. 4001 dated 26.11.1983 but in vain and the defendants has to withdraw from aforesaid contract to supply tyres to D.G.S. and causing heavy financial loss. In the year 1984 the defendant requested the plaintiff to sanction the sale of the out -dated Electric Machineries to get the "Boiler machinery" in its place but no response came till 1985. But suddenly in the year 1985 a surprise inspection was made by the Officials of the plaintiff Head Quarter who agreed to help the defendant and on Techno Economic Feasibility report on conversion to the boiler system which was done in April, 1985. Thereafter the Managing Director Adityapur Industrial Development Authority also had inspected the factory and recommended to rehabilitate the defendants for which he wrote to the Head Office, Madras for remission of interest also vide his letter dated 12.6.1986. On 16.8.1986 the plaintiff rejected their proposal which resulted a loss of Rs. 22 lack. The defendant again requested the plaintiff for permission to sale the machineries in order to start repaying the loan besides also requested for remission of interest but no reply was given by the plaintiff. The defendant No. 3 being a retired Army Col. maintained his livelihood on the army pension. The industry became seek, the Managing Director, Adityapur Industrial Development Authority recommended to rehabilitate and therefore the plaintiffs were bound to remit the interest due on cash credit and term loan. In terms of Circular No. LECD. No. IRD. BC. 132/SIU -A -85 dated 5.11.1985 issued by the Reserve Bank of India to all the Commercial Banks advising parameters for provision of feliefs/concessions by Banks under Rehabilitation Packages evolved for sick industrial unit, in spite of repeated requests of the defendants the plaintiff had denied. The letter delivered by the defendants of continuing guarantee dated 19.9.1979 were claimed to be not true and it was also pleaded that their signatures were taken on plain paper, it was also pleaded that the case is barred under the limitation act.
(3.) THE learned trial Court framed as many as nine issues : '' 1. Is the suit maintainable in its present form? 2. Has the plaintiff got any legal and valid cause of action for the suit? 3. Is the suit bared under the principles of estoppel, waiver, and acquiescence as well as under the Law of limitation? 4. Is the suit bared under the provisions of Bihar Money Lenders Act? 5. Whether the suit has been filed by an authorized person? 6. Whether the documents exhibited on behalf of the plaintiff bank were properly executed and are genuine documents under the established principles of rule of law to make the defendants liable for the claim made by the plaintiff bank? 7. How far the alleged sick industry of the defendant and non -rehabilitation by the plaintiff bank to the defendants, entitles the defendants to any relief on the point of quantum of interest if the industry of the defendants sick and not rehabilitated by the plaintiff bank? 8. Is the plaintiff entitled to realize and recover the amount claimed in the plaint with pendente lite and future interest from the defendants jointly and severally? 9. Is the plaintiff entitled to get any other relief or reliefs? The suit was decreed in part, which will be discussed in the next paragraph. ;