Jullundur Motors and Others vs Punjab and Sind Bank

N.K. Kapoor, J.—This is defendant Regular First Appeal against the judgment and decree of Sub-Jude 1st Class, Batala, dated 23-8-1988, whereby the suit filed by the plaintiff-bank for recovery of Rs. 526072.64 paise alongwith interest at the rate of 19.5% per annum till its realisation, was decreed.

The plaintiff-bank filed suit for recovery of Rs. 526072 64 P. against the defendants on the allegations that the plaintiff-bank is body corporate constituted under the banking companies (Acquisition and Transfer of undertakings) Act 40 of 1980. It was further stated that the plaintiff bank has a branch at Umarpura in District Gurdaspur Shri Pal Singh, Senior Manager District Gurdaspur and Shri Gurdeep Singh, Manager of Umarpura Branch of the plaintiff bank were stated to be the principal officers of the plaintiff bank and thus authorised and empowered by the plaintiff-bank to file the present suit on its behalf. It was further averred that defendant No. 1 is a partnership firm and defendants No. 2 to 5 are its partners. The amount was advanced as Cash Credit Facilities to defendant No. 1 on the request of defendants No. 2 to 5, who in consideration thereof, executed for self and on behalf of defendant No. 1 agreement for Cash Credit Facilities in favour of the plaintiff bank They also executed a demand promissory note, an undertaking for the repayment of the amount due without presentment of the promissory note, an agreement for hypothecation of goods to the extent of Rs. 3 lacs and letter of authorization regarding the penal interest on 6-6 1983 in favour of the plaintiff bank. The rate of interest as agreed between the parties wag 19.5% per annum with quarterly rests on the amount. Besides, defendants'' No. 6 and 7 stood surety for defendants No. 1''to 5. They also executed letter of guarantee on behalf of defendants No. 1 to 5 in favour of the plaintiff bank on 6 6-198 3. In this way, they made themselves liable jointly and severally alongwith defendants No. 1 to 5 for repayment of the amount due to the plaintiff bank. In addition to these, defendants No. 3 and 5 to 7 also gave an additional security for the'' repayment of the loan due by means of mortgaging their immovable properties, as detailed in the plaint.

The defendants put in appearance, filed written statement and took preliminary objections to the effect that the suit has not been filed by a duly authorised person; suit is not within limitation; suit is not maintainable and the suit is bad for mis joinder of the parties. It was also alleged that defendant No. 1 firm has since been dissolved and defendants No. 2 to 5 are not carrying on the business under the name and style of defendant No. 1 firm. Defendants further alleged that they never approached the plaintiff-bank for Cash Credit Facilities in the year 1983 as alleged in the plaint. Defendants further averred that the plaintiff bank obtained signatures of the defendants on blank printed forms. Defendants also denied the execution of demand promissory note, letter of continuity, undertaking etc in favour of the" plaintiff-bank and so claimed that these documents are null and void arid without consideration Defendants also denied that there was any agreement between the parties regarding the payment of interest. However, the defendants expressed their willingness to pay the actual amount which according to them has been disbursed to them, after rendition of the account. Defendants also denied that defendants No. 6 and 7 executed any guarantee deed in favour of the plaintiff-bank on behalf of defendants No. 1 to 5 as alleged.

4 On the pleadings of the parties, the following issues were framed by the trial Court on 6-11-1986 :-

Whether the suit has been filed by an authorised person ? OPP

Whether defendants Nos. 1 to 5 obtained any loan facilities from the plaintiff bank. If so, to what amount? OPP

Whether defendants Nos. 6 to 7 stood as guarantors for repayment of the loan amount ? OPP

Whether the suit is within time ? OPP

Whether the suit is not maintainable ? OPD

Whether the suit is bad for mis-joinder and non-joinder of necessary parties ? OPD

Whether the plaintiff is entitled to any interest, if so at what rate ? OPP

8 Whether the suit is properly valued, signed, stamped and verified? OPP

9 Whether the plaintiff is entitled to the suit amount ? OPP

Relief.

Under issue No. 1, the trial Court came to the conclusion that there was proper authorisation in favour of Gurdeep Singh Manager to file the present suit. The solitary objection raised by the defendant that documents Exhibits P-l and P-2 are merely photo copies of the original power of attorney, was over ruled by the Court as the original power of attorney duly signed and executed in favour of Gurdeep Singh Manager and Pal Singh Sr. Manager was produced in the Court. This way, this issue was decided in favour of the plaintiff-Bank. Under issue No. 2 the trial Court after referring to the documents demand promissory note Exhibit PA, letter of non-presentment Exhibit P-5, letter of penal interest Exhibit P-6, letter of continuity Exhibit P-7, agreement of hypothecation Exhibit P-8 and letter of the defendants Exhibit P-ll vide which they authorised the plaintiff-bank to adjust their previous account in the account in dispute, decided this issue in favour of the plaintiff bank The trial Court while deciding this issue observed that whereas the plaintiff bank has led cogent and reliable evidence in support of their case, but somehow the defendants have not brought on the file any evidence to prove that the plaintiff bank had obtained their signatures on the blank printed forms purporting to be the loan application, demand promissory note, letter of continuity etc , this way relied upon the statements of P.Ws and found no merit in any of the contentions raised by the counsel'' for the defendants, especially for the reason that the defendants did not care even to put in appearance in the witness box so as to prove their allegations. Under issue No. 3, it was held that defendants No. 6 and 7 were guarantors who had executed the guarantee deeds Exhibits P-9andP-10.

Under issue No. 4, the trial Court relying upon demand promissory note Exhibit P (sic) letter of non-presentment Exhibit P5, letter of penal interest Exhibit P-6, letter of continuity Exhibit P-7 and agreement of hypothecation Exhibit P-8 which are of 6-6-1983 came to the conclusion that since the suit has been filed on 28-5-1986 the same is within limitation Issues No. 5 and 6 were also decided against the defendants as they led no evidence in support of these issues.

Under issue No. 7, the trial Court allowed interest at the rate of 19.5% as stipulated in promissory note as well as in the letter of penal interest Exhibit P-6. Issue No. 8 was decided in favour of the plaintiff bank in view of the findings of the trial Court under issue No. 9 the Court did not agree to the contention of the counsel for the defendants with regard to the reception of letters Exhibits P-11 and P-12 for the reason that these documents had come from proper custody. Not only this, both these documents were duly signed by the defendants. Vide Exhibit P-11 the plaintiff-bank adjusted the previous account of the defendants in the account in dispute Besides the Court noticed that defendants despise having been granted opportunity to adduce evidence did not produce any evidence to rebut the evidence of the plaintiff-bank so decided this issue in favour of the plaintiff-bank.

Resultantly, the suit of the plaintiff bank was decreed alongwith interest at the rate of 19 5% per annum with quarterly rests till the realisation of the decretal amount.

I have heard the learned counsel for the appellant and perused the relevant documents on record with his able assistance. The main objection of the learned counsel for the defendants is with regard to the reception of documents Exhibits P-11 and P-12. According to him, both these documents were neither filed alongwith the plaint nor the particulars of these documents were given in the list of reliance and in the absence of the same, the same could not have been received in evidence He further argued that, even if, defendants failed to lead any evidence in rebuttal, yet before burdening the defendants with the liability now sought to be recovered in the present suit, it was incumbent upon the plantiff-bank to duly prove the earlier account on the basis of which this amount of Rs. 254931.90 P. has been debited towards the amount advanced vide various writings executed on 6-6-1983. Since the earlier account has not been placed on record, the amount so debited in per se illegal and to that extent the same is not recoverable from the defendants.

Order 13 Rule 1 of the CPC envisages the production of documentary evidence on or before the settlement of the issues which the plaintiff intends to rely and which has not already been filed in the Court. Order 13 Rule 2 deals with the effect of non-production of documents which are in possession or power of any party, but has not been produced in accordance with the requirement of Rule 1. Bare perusal of these two provisions leaves no manner of doubt that these envisage that party shall produce all documentary evidence which is in its possession or in its power at the first hearing of the suit. Order 13 Rule I of the CPC further stipulates that in case document or documents have not been produced in accordance with the requirement of Order 13 Rule 1 of the Code of Civil Procedure, the same shall not be received at any subsequent stage unless good cause is shown to the satisfaction of the Court for its non production. This provision is intended to prevent the parties from manufacturing documentary evidence during the course of trial. All the same, this provision empowers the Court to receive such documentary evidence even at a later stage if the Court is of the view that there is no doubt as to the authenticity of the documents. The Court is to exercise its jurisdiction with a judicial mind taking into consideration the nature of the suit, pleadings of the parties and hardship it may cause to the parties if documents are not allowed to be produced at that late stage, Moreover as is well known in a civil litigation costs are panacea for all ills and Court in suitable case can compensate the other party by awarding costs. In the present case, documents Exhibits P-11 and P-12 bear the signatures of the defendants on these documents, but all the same pleads that these documents have subsequently been created as the signatures of the defendants were obtained on the blank papers. I find no merit in this argument of the learned counsel for the defendants. As stated by the trial Court, these documents have come from a proper custody. There is no denial by the defendants that there was no previous dealing with the plaintiff-bank In fact, a bare perusal of certified copy of the statement of account of the defendants as maintained by the plaintiff-bank Exhibit p-3, clearly records there in the debiting of this amount i e Rs. 254931.80 P. No objection was raised with regard to this statement of account by the defendants Thus, I find no merit in the submission of the learned counsel for the appellants.

No other point has been pressed or claimed by the appellants.

Resultantly, the appeal is found to be devoid of any merit and the same is dismissed. The parties to bear their own costs in the appeal.