Syndicate Bank vs Spencer and Blacksmith and Others

Sat Pal, J.

(1) This is a suit for recovery of Rs.1,25,182.57p together with in pendente lite and future interest @ 16.5% p.a. from the date of institution of the suit till realisation.

(2) The facts of the case briefly stated are that the plaintiff is a nationalised Bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings )Act, 1970 having its Head Office at Manipal, Karnataka State and having one of its branches at East Patel Nagar, New Delhi. Mrs. Pran Bakshi is the duly constituted attorney of the plaintiff-Bank and was the Branch Manager of the East Patel Nagar Branch of the plaintiff-Bank at the relevant time. She is duly authorised to sign and verify the present plaint and to institute the present suit .In this regard she holds the power of attorney from the plaintiff-Bank.

(3) As per the averments made in the plaint, the defendant No.1, which is a partnership concern of defendants 2,3 and 4 was granted Over Draft Facility to the tune of Rs.1.00lac by the plaintiff-Bank on 1.11.85 against hypothecation of stock. It is also stated in the plaint that the defendants, in consideration of the abovementioned facility, executed the following documents in favor of the plaintiff-Bank on 1/11/1985 :-

(A)ADV-29 Overdue interest letter signed by all the defendants.(b) ADV-23 Stock Statement executed by the defendants.(e) OG-6-Demand Promissory Note for RS.1.00 lac signed by the defendants represented by partners and in individual capacity.(d ) OG-33 signed by defendants No.2,3 and 4.(e) OG-14-Over Draft Account opening form signed by defendants No.2,3 and 4.(f) OG-69 executed by the defendants No.2,3 and 4.(g) OG-78 Letter of Authority executed by the defendants No.2,3 and 4.(h) ADV-27-Stamped Agreement for Rs. 1.00 lac signed by the defendantNo.1 through the defendants No.2,3 and 4.(i) Deed of Hypothecation of Machinery. It is further alleged in the plaint that the defendants did not adhere to the financial discipline of the Bank and failed to deposit the amount due from them, despite various demands written as well as oral made by the plaintiff-Bank.

(4) It is then stated in the plaint that the plaintiff-Bank demanded the outstanding amount through a legal notice of demand dated 21.4.1988 which was served upon the defendants and thereafter the defendants approached the plaintiff-Bank and promised to repay the outstanding amount of the plaintiff-Bank. Defendants also executed the balance confirmation slip on 29.8.89 and confirmed the outstanding amount of Rs.1,09,981.70 which was due on that date. It is further stated in the plaint that a total sum of Rs-1,25,182.57 is due to the plaintiff-Bank on the date of filing of the suit and the defendants have failed to pay the said amount. Hence the present suit has been filed against the defendants.

(5) Summons of the suit were sent to the defendants. Since the defendants refused to accept the registered covers containing the summons, they were proceeded against ex-parte on 28.5.92. On 8/02/1993, the plaintiff was permitted to adduce evidence by way of affidavits. Thereafter the plaintiff-Bank has filed the affidavit of Shri Ravi Parkash, Manager East Patel Nagar Branch of the plaintiff-Bank. All the averments and allegations made in the plaint have been proved by the said witness.

(6) EX.P-1 is the General Power of Attorney dated 5/06/1979 executed by the plaintiff-Bank in favor of Mrs. Pran Bakshi, Branch Manager of the plaintiff-Bank, who had signed and verified the plaint in this case. Ex.P-2 is theADV-29 Overdue interest letter, Ex.P-3 is ADV-23 Stock Statement, Ex.P-4 is the demand Promissory Note for Rs.1.00 lac and Ex.P-5 is the form OG-33 wherein it is stated that all the partners i.e. defendants 2,3 and 4 are liable to the Bank in respect of all or any of the transactions with the plaintiff-Bank. All the said ExhibitsP-2 to P-5 have been duly signed by defendants 2,3 and 4 as partners of the defendant No.1. Ex.P-6 is the Account Opening Form, Ex.P-7 is the letter containing particulars of the security delivered, Ex.P-8 is the letter of authority executed by defendant Nos. 2,3 and 4 as partners of defendant No.1, Ex.P-9 is the Stamped Agreement for Rs.1.00 lac and Ex.P-10 is the deed of hypothecation of machineries .All the said Exhibits P-6 to P-10 have been signed by the defendants as partners of the defendant No.1. Ex.P-11is the copy of the legal notice sent by the plaintiff-Bank to the defendants 2,3 and 4, Ex.P-12 is the authenticated copy under the Bankers Books Evidence Act of the Over Draft Account of the defendants and Ex.P-13 is the balance confirmation slip acknowledging the liability ofRs.1,09,981.70 as on 29/08/1988 by the defendants. All the aforesaid Exhibits P-1 to P-13 have been proved by the plaintiff-Bank by the affidavit of Shri Ravi Parkash, Manager, East Patel Nagar Branch of the plaintiff-Bank. By this affidavit the said witness has also proved that a total sum of Rs-1,25,182.57Along with cost and interest @ 15.5% p.a. from the date of filing of the suit till realisation is recoverable from the defendants by the plaintiff-Bank.

(7) As stated here in above, the defendants were proceeded against ex-parte.None of the defendants have filed any written statement controverting the averments and the allegations made in the plaint. On the other hand the plaintiff-Bank has proved its case by the affidavit of Shri Ravi Parkash, Manager of the East Patel Nagar Branch of the plaintiff-Bank. On perusal of the documents proved on record, I am satisfied that the plaintiff has proved its claim against the defendants jointly and severally. The plaintiff is entitled to a decree. Accordingly ,the suit for recovery of Rs-1,25,182.57 is decreed with costs in favor of the plaintiff-Bank and against the defendants. The plaintiff-Bank shall be entitled to pendent lite and future interest @15.5% per annum. Decree maybe drawn accordingly.