Mahendra and Another vs The Bank of Rajasthan Limited and Another

Kailash Chandra Joshi

This civil second appeal filed by appellant-defendants Mahendra and Chagan Singh is directed against the judgment and decree dated 24.05.2011 passed by learned Additional District Judge, Sumerpur, whereby the learned first appellate court dismissed Civil Appeal Decree No.16/2010 (33/2009) filed by the appellant-defendants and affirmed the judgment and decree dated 31.07.2009 passed by learned Civil Judge (Senior Division), Bali, District Pali in Civil Original Case No.19/2006, whereby the learned trial court decreed the suit filed by the respondent-plaintiffs for recovery of money. The brief facts of the case giving rise to the present appeal are that on 24.08.2006 respondent No.1-plaintiff Bank filed a suit for recovery of Rs.31734/- against the appellant defendants and the respondent No.2 with the averments that on 01.09.2003 a composite term loan of Rs.45600/- was sanctioned to the defendant No.1 on some conditions and he executed the requisite documents in favour of the plaintiff-Bank. The defendant No.2 and 3 stood as guarantors and executed guarantee agreement. The defendant No.1 failed to repay the regular instalments as per the terms and despite registered notice, he did not pay the loan amount. The respondent-plaintiff Bank served notice dated 17.07.2006 and 05.08.2006 to the defendants, but all the defendants failed to repay the loan amount, hence, the suit for recovery of loan amount and interest in total Rs.31734/- was filed.

The appellant-defendants filed joint written statement with the averments that all the relevant documents have not been provided with the plaint. It was further averred that account has been maintained incorrectly by the Bank and after deducing Rs.7200/- as subsidy, an amount of Rs.27750/- has been deposited with the Bank and it was denied that an amount of Rs.31734/- is due. Further it was averred that on 26.09.2006 an amount of Rs.2000/- was also deposited. It was further averred that the defendants are ready to pay appropriate amount after seeking subsidy on the amount of interest as assured by the plaintiff-Bank. Further the factum of giving notice by the Bank was denied. It was also averred that no affidavit has been filed with the plaint as per the mandatory provisions of Order 6 Rule 15(4) CPC. Further the objection regarding limitation of the suit was also raised.

Despite service the proforma defendant-respondent No.2 did not appear before the learned trial court, therefore, ex parte proceedings were initiated against him.

On the basis of the pleadings of the parties, the learned trial court framed two issues including the issue No.2 regarding relief.

The learned trial court did not record any evidence saying that issue No.1 is purely legal issue and the same can be decided without recording any evidence.

After hearing the arguments of the parties, the learned trial court vide the impugned judgment and decree dated 31.07.2009 decreed the suit of the respondent-plaintiff Bank for recovery of Rs.29734/- with costs and also passed decree for interest at the rate of 12% per annum from the date of filing of the suit till the realization of the amount.

Being aggrieved by the judgment and decree passed by the learned trial court, the appellant-defendants filed an appeal before the learned first appellate court, which has been dismissed vide the impugned judgment and decree dated 24.05.2011 and the judgment and decree passed by the learned trial court has been affirmed.

Hence, being aggrieved by the judgments and decrees passed by the learned courts below, this civil second appeal has been preferred.

The learned counsel for the appellant-defendants contended that the impugned judgments and decrees passed by the courts below is contrary to the law and facts and the same deserve to be quashed and set aside. It is contended that the learned trial court has failed to frame proper issues which necessarily arise out of the pleadings of the parties, therefore, gross prejudice has been caused to the appellant-defendants. It is contended that so far as the factum of non-framing the proper issues is concerned, this ground was specifically pleaded and pressed before the learned first appellate court but from the perusal of the judgment of the learned first appellate court, it is revealed that the learned court below has even not considered the arguments or ground, therefore, the judgment and decree passed by the courts below is liable to be set aside on this count alone. It is further contended that as per the well-settled preposition of law, it is for the plaintiff to prove his case, but in the present case the learned courts below have committed grave error of law in placing the burden of proof on the appellant-defendants. The learned counsel further contended that the appellant-defendants have fully proved the issue No.1 in their favour. Though the suit was filed on 01.09.2003, but the court fees was paid on 06.09.2006 and for which at the time of filing of suit no permission was sought by the plaintiff-Bank, therefore, the suit ought to have been treated as filed on 06.09.2006 and in this manner, the suit is prima facie time barred because the cause of action accrued on 01.09.2003, thus, the learned courts below have committed grave error of law in holding that the suit is within limitation. The learned counsel for the appellants further contended that none has appeared in the witness box to prove the suit. As per the provisions of the Evidence Act, none of the documents have been got exhibited or proved. As per the settled position of law, even in ex parte proceedings the plaintiff has to prove his case on his own legs but in the present case admittedly neither the Bank Manager nor any other witness appeared before the learned trial court to prove the case of the plaintiffs, thus, both the courts below have committed grave error of law in decreeing the suit against the mandatory provisions of law. It is further contended that in pursuance to the mandatory provisions of Order 6 Rule 15(4) of the CPC, no affidavit in support of the plaint was filed and specific objection was taken in this regard by the defendants, but the learned trial court committed grave error of law in ignoring this aspect of the matter. It is further contended that the learned first appellate court has failed to exercise its jurisdiction in proper manner and it has not acted as per the mandatory provisions of Order 41 Rule 31 CPC, therefore, the impugned judgment and decree passed by the learned first appellate court deserves to be quashed and set aside. It further contended that the learned courts below have not decreed the suit under the provisions of Order 12 Rule 6 of the CPC and the impugned decree could not have been passed in the manner the same has been passed.

The learned counsel for the appellant-defendants has proposed the following substantial questions of law in the memo of appeal :-

(1) Whether the learned courts below have committed gross error of law in deciding the case against the mandatory provisions of law ?

(2) Whether the learned courts below have failed to frame the proper issues arising out of the pleadings made by the parties and therefore, gross prejudice has been caused to the defendants/appellants ?

(3) Whether the learned courts below have committed grave error of law in decreeing the suit without there being any evidence on record ?

(4) Whether in any manner suit filed by the plaintiff bank can be said to be proved without proving any document specifically when same were denied by the defendants/appellants ?

(5) Whether approach of the learned courts below is contrary to law ?

(6) Whether judgment of appellate court can be said to be a judgment under Order 41 Rule 31 CPC ?

(7) Whether judgment of appellate court is a cryptic judgment for not considering the grounds which were raised and pressed ?

(8) Whether judgments of the courts below are sustainable in the eye of law for being contrary to provisions of law as well being on no evidence ?

I have considered the contentions raised by the learned counsel for the appellant-defendants and perused the impugned judgments passed by the courts below.

Admittedly, the suit was filed by the plaintiff-Bank against the appellant-defendants Mahendra and Chagan Lal and the defendant-respondent No.2 Phool Chand for the recovery of the loan amount of Rs.31734/- alongwith interest on the basis of the documents executed by the appellant defendants and the defendant-respondent No.2, by which a loan was advanced to the defendant No.1 Mahendra, for which defendant No.2 Chagan Lal and defendant No.3 Phool Chand stood as guarantors. The defendants in their written statement admitted the fact of advancement of loan, but they denied the fact of the amount of Rs.31734/- being due. The only issue framed by the learned trial court was regarding the limitation, which was decided against the defendants and the learned trial court decreed the suit for Rs.29734/- alongwith interest at the rate of 12% per annum from the date of filing of the suit till the date of realization of the amount. The issue framed regarding the limitation was well-considered by the learned trial court and decided against the defendants. The learned first appellate court also considered the issue regarding the limitation and affirmed the findings of the learned trial court while dismissing the appeal filed by the present appellants. In my considered view, the learned courts below have committed no error in passing the impugned judgments and decrees. The substantial questions of law as proposed by the learned counsel for the appellants are not involved in this appeal because the question regarding limitation has been decided by both the courts below after considering the relevant provisions of law and the fact of the execution of the documents. This second appeal filed by the appellant-defendants is devoid of any force and deserves to be dismissed.

Consequently, this civil second appeal is dismissed and the impugned judgments and decrees passed by the courts below are affirmed. No order as to costs. A copy of this judgment be sent to the respondents.