DATED: 13.09.2011
CORAM:
THE HON BLE MR. JUSTICE A.ARUMUGHASWAMY
Cross Objection No.73 of 1994 in
A.S.No.232 of 1993
R.Perumal ... Cross Objector/2nd Defendant
2nd Respondentin A.S.
vs.
1.State Bank of India,
Coimbatore Nagar Branch,
Coimbatore
(Bank of Cochin Limited) ... 1st Respondent/Plaintiff/
Appellant in A.S.
2.M/s. Vijayalakshmi Metal
Corporation,
Rep. by its Proprietor
Mr.K.R. Rajagopal ... 2nd Respondent/1st Defendant
and 1st Respondent in A.S.
-----
J U D G M E N T
The defendant is the cross objector. The plaintiff/bank has filed the suit for recovery of a sum of Rs.2,00,000/- with interest and costs. The suit has been decreed for a sum of Rs.2,06,647.58/- with interest at 6%. Against which, the plaintiff has filed the appeal for enhancement of interest in A.S.No.232 of 1993 and this court by judgment dated 31.03.2010 has allowed the appeal and thereby modifying the judgment and decree of the Trial Court awarding interest @ 18.35% per annum instead of 6% per annum as agreed between the parties.
2. Aggrieved by the judgment and decree of the trial Court, the second defendant has filed the above cross objection stating that there cannot be any decree against him. Hence, he prayed that the suit against him along with third defendant has to be dismissed.
3. The appellant/Bank is the plaintiff and it has filed the suit for recovery of money against the first defendant who is the borrower and the defendants 2 and 3 who are the guarantors. The third defendant is the brother-in-law of the first defendant. At the initial stage, since the first defendant was given overdraft facilities to the extent of Rs.50,000/- under the Open Cash Credit Scheme, the defendants 2 and 3 gave guarantee for a sum of Rs.50,000/- and thereafter, the limit has been enhanced with effect from 7.9.1982 for Rs.2.00 lakhs. The suit has been decreed against the defendants 1 and 2 for a sum of Rs.2,06,647.58 with interest at 6% per annum. In so far as the third defendant is concerned, the suit has been dismissed holding that the guarantee has not been extended in time. Against the judgment and decree the plaintiff has preferred appeal questioning the quantum of interest alone.
4. The vehement contention of the learned counsel for the cross objector is that the cross objector is agitated that he has executed a letter of guarantee on 12.6.1981 for the value of Rs.50,000/- and that it has been enhanced to Rs.2,00,000/- without his knowledge only after 12.6.1981. Therefore, he is not bound to make the payment and further he would contend that the stock-in-trade of the first defendant, which was pledged in the hypothecated agreement has been released from the suit property without any reason and the suit has not been filed on the stock-in-trade. Hence, he would contend that as per section 139 and 141 of the Contract Act, he is not bound to make payment.
5. The learned counsel for the cross objector would further contend that the overdraft facility has been enhanced on 7.9.1982. Whereas, the document viz., Letter of Guarantee has been executed on 12.6.1981. Hence, he prayed that the cross objection has to be allowed.
6. The cross objector has not denied the averments made by him in his written statement, which reads as follows:
"The defendant stated that he had already signed in some papers and therefore there is no need for any further signature. The Manager of the Bank on 12.6.1981 informed the defendant that he requires some more signatures for the papers already signed, have been misplaced. On that date the Manger of the plaintiff-Bank took some signatures in blank stamped paper and printed forms."
7. Now, the very short point arises for consideration in this cross objection is as to whether the cross objector/2nd defendant has acknowledged the letter of guarantee and in view of this whether he is bound to make payment subsequent to 12.6.1981?
8. It is not in dispute that the second respondent/first defendant has obtained loan from the plaintiff/bank originally for a sum of Rs.50,000/-. Thereafter, he had availed overdraft facility from the plaintiff/bank, for which, 2nd and 3rd defendants had executed a letter of guarantee for that amount. Third defendant is the brother-in-law of the first defendant. Subsequently, at the request of the 1st defendant, the limit of overdraft facilities i.e., Rs.50,000/-was enhanced to Rs.2,00,000/- on 7.9.1982. The trial court dismissed the suit against the third defendant holding that for the enhanced overdraft facilities of Rs.2,00,000/, the third defendant has not parted. Hence, on that basis, suit has been dismissed against the third defendant. Against 1st and 2nd defendants, the suit has already been decreed and the rate of interest fixed by the Trial Court was at 6% per annum and thereafter on appeal, it has been enhanced by this court to 18.35% as per agreement.
9. Ex.A-7 is the letter of guarantee said to have been given by the second defendant/cross objector alone. It is pertinent to note that the suit has been dismissed against the 3rd defendant, since the 3rd defendant is not the guarantor. Subsequently, for which the appellant has not sought for any prayer against the third defendant.
10. The case of the cross objector/second defendant as pointed out in the written statement was that he went to bank on 12.6.1981 and on that day, the first respondent/bank obtained some signatures in blank stamped paper and in the printed forms. Therefore, it is clear that the documents have been signed by the cross objector only on 12.6.1981 and not on 7.9.1982. At the time of getting the signature, it must be blank form.
11. On a perusal of Ex.A-7 it is seen that the letter of guarantee is written in Rs.3/- stamp paper and in bond papers it has been mentioned that the stamp paper has been purchased on 12.6.1981. In the letter of guarantee, columns have not been filled up, in some places, name and place alone have been written in which the date has been mentioned as 7.9.1982. Now it has to be seen that whether this document has been executed by the cross objector on the date mentioned by him or the date has been written in the Ex.A-7 by the State Bank of India. It is seen from Ex.A-7 that the stamp papers have been purchased on 12.6.1981 but it has been filled up on 7.9.1982, as if the guarantee has been extended from 7.9.1982. At the time of getting the signature, it must be blank form. That is the reason as on today also all the columns in Ex.A-7 was not filled up by the bank.
12. In view of the above, as contended by the learned counsel for the cross objector, the date, i.e., 7.9.1982 has been filled up subsequently is proved by the cross objector. On that score only the suit against the third defendant was dismissed. Therefore, I am of the view that the same yardstick will apply to cross/objector second defendant also. Therefore, the claim against the cross objector cannot survive and hence, in this regard, the cross objection has to be allowed.
13. The next contention of the cross objector is that the suit has been filed by the Bank/plaintiff directing the defendants 1 and 2 to pay a sum of Rs.2,06,647.58 not being paid by the first defendant for which the first defendant had hypothecated his stock-in-trade in favour of the Bank/plaintiff. Hence the suit is bad in law for non-inclusion of the Stock-in-Trade. Further, the learned counsel contended that the third defendant is the brother-in-law of the first defendant. Therefore, conveniently, he has left out his name with the collusion of the bank/plaintiff. Therefore, the learned counsel for the cross objector prayed that the cross objection has to be allowed. Of course in the Letter of Guarantee there is a clause (8) in which liberty has been given to the Bank in this regard. Therefore, non inclusion of the Stock-in-Trade will not be a ground for allowing of the Cross-Objection.
14. From the perusal of the records it is very clear that Ex.A7 Letter of Guarantee has been fabricated by the plaintiff/bank. The plaintiff being the Nationalised Bank adopting this type of method is depreciated and the officer concerned of the bank alone is responsible for the loss if any incurred by the plaintiff bank at firstly, the plaintiff/bank filed the suit without any reason leaving the Stock in Trade; secondly even though the plaintiff/bank has filed appeal it has left the third defendant who is brother-in-law of the first defendant; thirdly the plaintiff/bank has manipulated the documents against the second defendant. Hence, the concerned person who has obtained extension of time alone is responsible for the loss if any occurred to the bank without realisation of the amount from the first defendant. In these circumstances, I am of the view that the cross-objection has to be allowed.
15. In fine, the cross-objection is allowed with costs. The suit against the 2nd defendant is dismissed with costs.
To
The Subordinate Judge, Coimbatore.
A.ARUMUGHASWAMY, J.
Posts
No comments:
Post a Comment