Court : DRAT Mumbai
Reported in : III(2005)BC163
..... again i must observe that argument of advocate appearing for the karkhana was not based solely, and exclusively on the doctrine enunciated by sections 69 and 70 of indian contract act. it was only a supportive argument. however, the advocate for the applicant bank has unnecessarily put the same on a higher pedestal. this was absolutely unwarranted. ..... has to be rejected.it appears that during the course of argument, the advocate appearing for the karkhana, made reference to sections 69 and 70 of the indian contract act. it appears that it was contended by the learned advocate before the drt that the karkhana did not spend the amount gratuitously and did not incur the expenses ..... has incurred those expenses. this is on the first principle basis and there is no need to take recourse to the principles of quasi-contract or sections 69 and 70 of the indian contract act.in the present case at hand, the plant is belonging to the applicant bank. it was, therefore, their primary duty to incur expenses .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : I(2007)BC183
..... by way of execution of mortgage decree alone and then to proceed against guarantor.in view of the above provisions of law incorporated in section 128 of the indian contract act, 1872 and reiterated by the supreme court in the case of bank of bihar and state bank of india (supra), the learned presiding officer was not correct in ..... to be examined vis-a-vis the direction given by the learned presiding officer in the above mentioned clause (b) in the light of section 128 of the indian contract act, which says as follows: 128. surety's liability. - the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided ..... namely the defendant no. 1. admittedly, it is not brought to my notice that there is any other provision in the guarantee agreement contrary to section 128 of the contract act.bank of bihar limited v. dr. damodar prasad point. the relevant portion from the celebrated judgment (supra) is called out for the sake of convenience: under section .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : IV(2006)BC144
..... towards the principal amount and not towards the interest as shown by the bank. in this respect, he placed heavy reliance on sections 59 to 61 of the indian contract act. accordingly to him, when there is no intimation given by the debtor as to how the amount: should be adjusted or about the application of payment or when ..... the discharge of some particular debt i.e. the principal amount first.7. in my view, provisions of section 61 of the indian contract act cannot be made applicable to the instant case. section 61 of the contract act has to be read with two preceding sections 59 and 60 as all these three sections come under one heading of "appropriation ..... the judgment creditor, but the question is only about adjusting the amount which was deposited by the judgment debtor under section 21 of the rddbfi act an therefore provisions of section 61 of the indian contract act would not be applicable. the respondent bank in fairness has also agreed to give credit of a sum of rs. 80,237/- which .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : III(2005)BC215
..... by the defendant nos. 1 and 2 and there would be clear bar of section 127 of the indian contract act for the enforceability of the guarantee. there would be clear bar in view of illustration to section 127 of the indian contract act and that such guarantee was without any consideration, as no amount was advanced by the applicant bank on ..... charge in favour of the applicant bank on the property of the defendant no. 6 is concerned, the learned presiding officer held that there was absolutely no privity of contract between the applicant bank and the defendant no. 8 and any undertaking unilaterally given by the defendant no. 6 could not be binding on the defendant no. 8 ..... it was not bound or liable to give consent as prayed by the applicant bank and that it was joined to the application without there being any privity of contract between the defendant no. 8 and the applicant bank. it was prayed that the application, therefore, be dismissed.9. the learned presiding officer after hearing both the .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : IV(2006)BC72
..... recovery of rents in respect of the machineries, which were hypothecated to the bank with a view to avail the benefit of provisions of section 141 of the indian contract act to the appellants who are the guarantors.7. as regards the first contention, my attention was drawn by the learned advocate appearing for the appellants to the ..... the hypothecated goods are not in possession of the bank. this contention is raised with a view to take benefit from the provisions of section 141 of the indian contract act. as regards this contention, the appellants will have to first establish that the appellants are entitled to the benefit of the said provision. however, they failed to ..... me any inconsistent term which would not make the appellants primarily liable for the debt of the main borrower. consequently the provisions of section 141 of the indian contract act are not attracted.it is also relevant to point out that though the d.r.t. has rejected the application, it is observed in the impugned order .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : II(2005)BC168
..... in the aforesaid facilities without the consent of the defendants nos. 3 to 6 and that it did not result into novation of contract whereby the indemnifiers were duly discharged under section 139 of the indian contract act.mr. jain while supporting the impugned judgment and order on the points that the penal interest was rightly denied, that denial of ..... defendant nos. 1 and 3 to 6, vehemently argued that if there was no provision of compounding interest, the bank could not claim it, that if the contract did not provide for increase in the rate of interest, interest rate could not be increased even if the same went up.as far as second point is concerned ..... refer to the penal interest. no clause in any of the documents under which the applicant was entitled to penal interest was shown. in the absence of any contract, the learned presiding officer came to the conclusion that the applicant bank was not entitled to penal interest.he therefore deducted that amount from the amount claimed in .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : 3(2006)BC140
..... as a guarantor, then he may put up that as his defence or for praying his discharge if his case is covered by the relevant provisions of the indian contract act making out circumstances in which the guarantor is discharged. the appellant can certainly point out this at the time of final hearing of the original application, but ..... of the application made by the defendant no. 5/appellant herein, cannot be said to be erroneous for the reasons given below: preamble of the rddbfi act, 1993 states that this act has been enacted to provide for the establishment of tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions. thus, this ..... has filed original application being original application no. 51 of 2003 under section 19 of the recovery of debts due to banks and financial institutions act, 1993 (hereinafter to be referred to as the rddbfi act against the defendant nos. 1 to 7 for recovery of rs. 7, 78, 09, 350/- with costs and with future interest, etc .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : IV(2005)BC132
..... in the creation of the mortgage. it follows that in such a case the document which constitutes the bargain regarding security requires registration under section 17 of the indian registration act, 1908, as a non-testamentary instrument creating an interest in immovable property where the value of such property is one hundred rupees and upwards. if a ..... those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. but if the parties choose to reduce the contract to writing this implication of law is excluded by their express bargain and the document will be the sole evidence of its terms. in such a case ..... supreme court opined as follows: "when the debtor deposits with the creditor title deeds of his property with an intent to create a security the law implies a contract between the parties to create a mortgage and no registered instrument is required under section 59 as in other classes of mortgage. it is essential to bear in .....
Tag this Judgment!Court : DRAT Mumbai
Reported in : III(2005)BC205
..... him, binds him. by the said guarantee, he has agreed to waive all his rights under sections 133, 134, 135. 139 and 141 of the contract act. all these sections of the contract act deal with conditions under which the surety is discharged.useful reference can be made to the division benchjudgment of the bombay high court in the case of mr ..... omission of the bank mr. shetty pointed out that the defendant no. 4 had expressly waived all the rights under sections 133, 134, 135, 139 and 141 of the contract act. mr. shetty, therefore, prayed that the appeals filed by the banks be allowed and the impugned order be set aside to the extent, it exonerated the defendant no. 4 ..... . deepak c. dalaland anr. v. indian bank and ors. passed on 16.8.2000 in writ petition no. 6518 of 1999, wherein division bench of the .....
Tag this Judgment!