NARENDRA NATH TIWARI, J. - (1.) THIS appeal is against the judgment and decree dated 13-1-93 passed by learned Subordinate Judge-I, Chaibasa in Money Suit No. 13/1984 whereby learned Court below has decreed the money suit filed by the plaintiff-appellant in part against the defendant No. 1 and ex parte against the defendant No. 2. The plaintiff is mainly aggrieved by the finding recorded on Issue No. 5 by learned Court below.
(2.) THE plaintiff-Bank had filed a suit for recovery of Rs. 11,56,954.48 with interest against the defendants. The plaintiff's case is that the defendant No. 1 is a Government contractor and was doing contract business at Chaibasa and other places. The defendant No. 1 approached the plaintiff-bank on 3-3-81 and requested for the facilities of term loan for Rs. 50,000/- for purchasing (T.M.B.) Truck No. BRS 2705. The request of the defendant No. 1 was considered by the Bank and the term loan facility for Rs. 50,000/- was granted to him. The defendant No. 2 stood as a guarantor. An agreement was executed dated 3-3-81 whereby the defendant No. 1 agreed for not creating any further charge over their properties and assets. The defendant No. 1 also agreed to pay interest @ 2% below the State Bank advance rate minimum 14% per annum with monthly rests in respect of the facilities of the said term loan. According to the terms of the agreement, the said vehicle was to be remained hypothecated to the plaintiff-Bank and to stand charge and constitute the Book's security for the amount of the advance made by the plaintiff-Bank to the defendant No. 1. The defendant No. 1 had also agreed to pay dues of the plaintiff-Bank along with the interest. But the defendant No.1 defaulted in payment. As a result of which the huge sum became outstanding against the defendant No 1. The defendant No. 1 had signed and executed a D.P. Note revival letter on 18-3-83 and also a balance confirmation letter dated 27-3-83 in respect of the said term loan account and he had acknowledged his indebtedness towards the plaintiff-Bank. The plaintiff-Bank has maintained books of accounts regularly, in respect of the aforesaid term loan of the defendant No. 1 and as per the said books of accounts, the total sum outstanding was Rs.68,749.14. Interest thereon was also payable by the defendant No. 1 till 10-5-84. Further case of the plaintiff is that the defendant No. 1 again approached the Bank in the month of May 1981 for enhancement of the facilities of overdraft from his current account and also for enhancement of the facilities in the cash credit account. The plaintiff agreed to the said proposal and enhanced cash credit facilities up to Rs. 3,80,000/- w.e.f. 30-5-81 and the facilities of overdraft from the current account was also enhanced to Rs. 2,70,000/- w.e.f. 30-5-81. The defendant No. 1 executed the required documents for the said facilities. The defendant No. 2 stood guarantor in respect of the cash credit account as well as in respect of the said facility of overdraft. It has been stated that the defendants were irregular in making the deposits and on 1-6-81 the defendants submitted a programme for repayment to the plaintiff-Bank. They also undertook to pay the dues of the entire cash credit account by an easy monthly instalment. But the defendant No.1 failed and neglected to pay the just dues of the plaintiff- Bank. According to the regular books of accounts maintained by the plaintiff, a sum of Rs. 6,56,320.74 was due on 10.5.84 towards the cash credit account, a sum of Rs. 4,31,884.50 was due on the said date towards over draft current account and a sum of Rs. 68,749.14 was due on the said date towards term loan account being the total amount of Rs. 11,56,954.48 which is payable by the defendants to the plaintiff-Bank. Decree was sought for recovery of the said amount with interest.
(3.) THE defendant No. 1 contested the suit by filing his written statement. The defendant No. 1 denied and disputed the facts stated in the plaint. According to him, the plaintiff has got no cause of action for the suit and the suit is not maintainable. The suit is also bad for misjoinder of causes of action and misjoinder of parties. The defendant No. 1 has, however, not denied the amount of loan taken by him in respect of the cash credit and overdraft facilities. But it was alleged that the Bank had procured their signature on some blank papers and printed forms with blank spaces and the contents of the same were not explained to the defendants. The defendant No. 1 has denied that there was any term of agreement for payment of interest @ minimum 14% per annum with monthly rests. It was further stated that all the payments made by the defendants towards term loan account were not accounted for by the plaintiff- Bank and they have also charged interest @ 14% whimsically and arbitrarily which is apparent from the letter dated 5.5.83. The amount mentioned in the plaint as due was denied. The statement of accounts furnished by the Bank is ex facie wrong. The defendant No. 1 repaid the amount substantially prior to institution of the suit and an amount of Rs. 68,749.14 was also denied. It has been further stated that the defendant had never approached the Bank for aforesaid facilities and it was the Bank which forced the defendants to avail the said facilities. The amount of interest has also been calculated whimsically and arbitrarily. Therefore, though, the overdraft facility and cash credit facility were given to the defendant No. 1, the amount shown in the schedule of the accounts appended to the plaint and claimed by the Bank is incorrect and disputed. The claim is inflated and not supported by any document. It has been stated that even after institution of the suit, the defendant made deposits which were accepted by the Bank, but the same were not adjusted in the books of the account. The books of accounts thus do not give the true picture. The D.P. Note also does not give the actual calculation of the due amount. The plaintiff's suit is thus not based on correct statement and is liable to be dismissed. The defendant, however, admitted that the defendant No. 2 stood as a guarantor in respect of all the advance facilities i.e. term loan, cash credit and overdraft granted to the defendant No. 1. However, it was stated that the documents signed by the defendant No. 1 was in English and since the defendant No. 1 does not know English, he was not aware of the contents of the said documents.;