Oriental Bank of Commerce Vs. Dr. (Mrs.) C.K. Asha Sinha and anr. - Court Judgment

Excerpt:

the case focused on ex parte decree in default in appearance under order 9 rule 12 of the civil procedure code, 1908, in relevance to the suit for recovery - the loan was sanctioned by the plaintiff and defendant no. 2, the husband of defendant no. 1 a practicing doctor, executed the letter of continuing guarantee - however the defendant failed to pay the installments, hence the summons were served - thereon the defendant did not appear and the ex parte decree was passed - it was ruled that the proof of affidavit was to be filed along with the documents by the plaintiff, thereforee the suit was decreed - - 6000/-.thereafter he neglected and failed to pay the balance amount as well as interest. 7,73,389/-.6. the summons of the suit were issued both by ordinary as well as registered a. 9. in view of the aforesaid documents the claim of the plaintiff has been well established entitling the plaintiff to decree......from the date of filing of the suit till the realisation of the decretal amount at the rate of 19.5 per cent per annum with quarterly rest. the facts giving rise to the suit are as under: 2. defendant no. 1 is a qualified doctor, and has been running a clinic at a/b-7, shalimar bagh, delhi. he approached the plaintiff bank for sanction of term loan of rs.3,00,000/- for the purpose of blood detector fluriscent microscope and accessories and submitted a standard loan application dated 26.5.1990. defendant no.2 is also a practicing doctor and is the husband of the defendant no.1. he stood as guarantor for the defendant no.1. defendant no.1 declared that she was the owner of the house no.a-b/7, shalimar bagh, delhi and house no.198, nathu pura, delhi measuring 150 sq. yds. plaintiff bank considered the request of the defendant no.1 and sanctioned term loan of rs.3,00,000/-. pursuant thereto the defendant executed the following documents.a) agreement of loan and hypothecation dated 31.5.90 executed by defendant no.1. b) guarantee agreement dated 31.5.90 executed by defendant no.2, in favor of the bank.3. defendant no.2 also executed a letter of continuing guarantee. pay order in.....

Judgment:

ORDER

J.D. Kapoor, J.

1. Through this suit the plaintiff Bank, a body corporate constituted under the Banking Companies Act 1980 has sought a joint and several decree in its favor and against the defendant for a sum of Rs.7,73,389 Along with pendente lite and future interest from the date of filing of the suit till the realisation of the decretal amount at the rate of 19.5 per cent per annum with quarterly rest. The facts giving rise to the suit are as under:

2. Defendant No. 1 is a qualified doctor, and has been running a clinic at A/B-7, Shalimar Bagh, Delhi. He approached the plaintiff Bank for sanction of Term Loan of Rs.3,00,000/- for the purpose of Blood Detector Fluriscent Microscope and Accessories and submitted a standard Loan Application dated 26.5.1990. Defendant No.2 is also a practicing doctor and is the husband of the defendant No.1. He stood as guarantor for the defendant No.1. Defendant No.1 declared that she was the owner of the house No.A-B/7, Shalimar Bagh, Delhi and house No.198, Nathu Pura, Delhi measuring 150 Sq. Yds. Plaintiff Bank considered the request of the defendant No.1 and sanctioned Term Loan of Rs.3,00,000/-. Pursuant thereto the defendant executed the following documents.

a) Agreement of loan and hypothecation dated 31.5.90 executed by defendant No.1.

b) Guarantee Agreement dated 31.5.90 executed by defendant No.2, in favor of the Bank.

3. Defendant No.2 also executed a letter of continuing guarantee. Pay Order in a sum of Rs.3,00,000/- was handed over to defendant No.1 in the name of Samrat Gupta from whom the said machine was to be purchased. The last payment made by the defendant towards repayment of the loan was on 15.2.92 for the amount of Rs.6000/-. Thereafter he neglected and failed to pay the balance amount as well as interest.

4. The balance confirmation letters executed by defendant No.1 are as under:

Balance confirmation Amount due As on.

executer in

22.9.1992 Rs.4,24,717.00 22.9.1992

15.10.1992 Rs.4,49,203.00 15.10.1992

1.10.1993 Rs.5,50,554.00 30.9.1993

5. As on 1st April, 1992 an amount of Rs.4,02,633/- was due and at the time of filing of the suit it rose to Rs.7,73,389/-.

6. The summons of the suit were issued both by ordinary as well as registered A.D.post. Despite service by way of publication in the 'Statesman' none of the defendants put in appearance. Consequently, they were proceeded ex-parte. The plaintiff has filed the affidavit by way of ex-parte evidence in support of the aforesaid averments.

7. The affidavit has been filed by Sh.Krishan Bhatia, Sr. Manager and the Principal Officer and attorney of the plaintiff bank. General power of attorney executed by the bank in his favor is exhibit PW1/8. Through power of attorney he has been authorised to sign and verify the present suit in terms of the authorisation letter Ex.-PW1/B.

8. Statement of account certified under the Banking Book of Evidence Act is Ex.PW1/C. In view of the statement of account and the affidavit the factum of sanction of term loan stand established. The request by the defendant in writing is Exhibit PW2/1. The invoice for purchasing Blood Detector Fluriscent Microscope duly signed by Mr. Samrat Gupta is Ex.PW2/9. Loan Application Form bearing the signature of defendant No.1 is Ex.PW1/2. Agreement of Loan and Hypothecation is Ex.PW2/10. The Guarantor form is Ex.PW2/11. Vide Exhibit PW2/5 the advance was debited in the account of the defendant. PW2/4 is the sanction letter. Exhibits PW2/12, PW2/13 and PW1/14 are the balance confirmation letters. PW2/9 is the letter from the plaintiff to Mr. Samrat Gupta regarding the remittance of Rs.3,00,000/- towards value of the new Blood Detector Fluriscent Microscope and Accessories Machine.

9. In view of the aforesaid documents the claim of the plaintiff has been well established entitling the plaintiff to decree. Suit is decreed with cost in favor of the plaintiff and against the defendant for a sum of Rs.7,73,389/- Along with pendente lite and future interest from the date of filing of the suit till realisation of the decretal amount @ 19.5% per annum. In case the amount is not recovered the hypothecated Blood Detector fluriscent miscroscope and accessories shall be put on sale through Court and the sale proceeds thereof after deducting the expenses of sale shall be paid to the plaintiff Bank towards satisfaction of the decretal amount. A decree sheet be prepared accordingly.