ORIENTAL BANK OF COMMERCE Vs. SHIV KUMAR JAISWAL

JUDGEMENT

(1.) THE appeal has been preferred against the judgment and order dated 23rd September, 2002 passed by the then Presiding Officer, DRT, Allahabad in T.A. No. 382 of 2000, whereby and whereunder the claim of the appellant-Bank has been dismissed to the effect that the settlement amount of Rs. 10.40 lacs had already been deposited by the defendant-respondent with the Bank.

(2.) It can be mentioned here that against the same group of the borrowers, four loans were granted, although in the different names of business and four suits were filed and all were transferred to DRT, Allahabad. A settlement/compromise was arrived at on the basis of which some amounts had been deposited from the side of the defendants in those four suits and those were also adjusted against their respective loan accounts. As per the compromise arrived at, it could be revealed from the letter of the appellant-Bank dated 8th October, 1998 that the defendant No. 1 was to pay Rs. 10.40 lacs towards full and final settlement of the claims. The said letter itself mentions about the settlement amount in respect of other three concerns of the same group and the letter was addressed to all the four. According to the defendant-respondents, by two instalments by Rs. 5 lacs and Rs. 5.40 lacs had been deposited with the Bank which nullifies the claims of the Bank against the defendant No. 1. To that extent the defendant No. 1 had submitted a petition before the DRT, but the said letter of the defendant No. 1 had been rebutted by the appellant-Bank stating that the amount of Rs. 20 lacs which has been deposited by the defendants' group was adjusted proportionately and rateably against the settlement amounts of the four cases and in that way although a receipt was granted of Rs. 5 lacs in favour of the defendant No. 1, but actually an amount of Rs. 1.60 lacs had only been adjusted towards the loan account of the defendant No. 1. In that way the defendant No. 1 would pay only Rs. 7 lacs (Rs. 5.40 + Rs. 1.60 lacs) against the settled amount of Rs. 10.40 lacs and as such Rs. 3.40 lacs were remaining outstanding. It was also contended in the rejoinder petition of the appellant-Bank which is contained as Annexure No. 2 of the memo of appeal that not only Rs. 3.40 lacs remained outstanding against the defendant No. 1, rather when the compromise terms have failed for non-deposit of the balance amount in time, then the appellant is entitled to get the whole of the claimed amount with future and pendente lite interest. Such rejoinder is dated 7th February, 2002. The adjusted, certificate amount of Rs. 1.60 lacs and the adjusted amount out of Rs. 20 lacs against other three groups had also been annexed. A letter dated 25th November, 2000 of the defendant No. 1 written to the Senior Manager, Allahabad Branch of the appellant-Bank had also been attached which was marked as Annexure Ho. 5, wherein it appears that defendant No. I had admitted that he had deposited only Rs. 7 lacs towards the loan account as per compromise proposal.

(3.) IN the present case while challenging the impugned judgment Mr. G.C. Mehrotra, learned Counsel for the appellant-Bank has not pressed the first point as mentioned in the Memo of Appeal regarding the factual aspects that the settlement had failed because of non-deposit of the instalments in time, rather he has pressed that the learned DRT have failed to take into consideration the admission of the defendant-respondent No, I by his letter dated 25th November, 2000 to the effect that only Rs. 7 lacs had been adjusted by the appellant-Bank against the loan account and if such admission is taken as it is, then definitely the appellant-Bank is entitled to get a decree of Rs. 3.40 lacs with usual interest together with future and pendente lite. On the other hand Mr. R.L, Arora submitted that although opportunity was given, the appellant has failed to prove that the four concerns although in different names belong to the same group of borrowers and in that way the receipts granted in favour of the defendant-respondent No. 1 were righdy being relied on by the learned Tribunal in dismissing the claim of the appellant-Bank. On perusal of all the papers, it could be found that after settlement was arrived at with the four concerns, at a time the borrowers had deposited Rs. 20 lacs and the same was being rateably and proportionately adjusted towards the accounts of the four concerns in consideration of the hierarchy of the amounts of the settlement. As. per the contention of the defendant-respondent No. 1, out of Rs. 20 lacs deposited by the borrowers' concerns in respect of the four concerns, equal distribution is being made to the tune of Rs. 5 lacs each, then the other accounts besides that of the defendant-respondent No. 1 in other suits; would definitely reveal so. But if the contention of the appellant is correct, then unequal distribution towards rateable and proportionate amount would be adjusted towards the settlement accounts of all the four. When all the four matters were proceeding before the same DRT, then it ought to have been prayed from the side of the appellant-Bank to hear all the cases together, so that there may not be any anomaly in deciding as to whether equal distribution of Rs. 20 lacs was being made against four accounts or there was proportionate distribution. I have been told that two of the cases are still pending before the DRT, Allahabad being Oriental Bank of Commerce v. Jai Maa Sharda Agency T.A. No. 115 of 2000 and Oriental Bank of Commerce v, Dharmendra Kumar T.A. No. 384 of 2000, although one of the cases has been disposed of and the appeal is pending on some other grounds before this Appellate Tribunal.