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TMI Blog2005 (10) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... onally from them by stating various facts in the plaint. 4. The case of the Bank is that, the first defendant is a proprietary concern of the second defendant. Third defendant is the wife of second defendant. 4th defendant is co-obligant. First defendant represented by second defendant approached the plaintiff-bank and sought for financial assistance of over-draft facility of ₹ 20,000/- from the Bank by signing the application on 1 -9-1982 which facility was later enhanced to ₹ 75,000/- on 18-1-1983. Defendants 1,2 and 4 executed a demand promissory note in favour of the Bank for a sum of ₹ 75,000 promising to repay the amount to it with interest at 7.5% per annum above the RBI rate with a minimum of 17.5% per annum compounded quarterly for having availed over-draft facility from the plaintiff-bank. The first defendant also offered immovable property i.e. a plot bearing No. 13 situated in Sy.No. 35 of Poornapura village measuring 97'x45.5' belonging to second and third defendants as collateral security for the loan amount borrowed by first defendant through second defendant, thereby mortgaged the suit property as equitable mortgage in favour of the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quitable mortgage in respect of the suit schedule property by deposit of title deeds in favour of the bank. It is their further case that, with a view to clear of the loan amount they requested the Manager of the Bank to waive the interest amount and grant them the maximum concession for which they are entitled to enable them to clear off their entire liability. 8. It is further stated by the defendants in their written statement that, first defendant which is dealing in granite business of export and import has contracted with Y.N. International Limited, Tokyo, Japan for supply of 25 cubic meters of granite by agreement dated 6-1-1984 for a total sum of 11250 US dollars. The letter of credit dated 31-7-1984 for US $ of 11250 was sent to the plaintiff bank on 10-8-1984. The time limit was extended to 8-11 -1984, 15-2-1985 and 27-3-1985 and the final validity of letter of credit was extended to 1-5-1985. The first defendant transported the entire goods to Mangalore Port to export the granite. When the first defendant requested the bank on 12-4-1985 to hand over the letter of credit, the bank informed that they have not received the letter of credit. Since the first defendant did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and reasons recorded in the impugned Judgment is questioned in this appeal by the bank contending that the findings recorded on contentious issues are erroneous in law as the Trial Court, having regard to the undisputed fact that defendants 1 and 2 have availed over draft facility from the Bank and executed the promissory note and acknowledgements of debt Ex.P4, P5 and P6 and the credit entries made in the ledger extract produced as per Ex.P7, are not properly appreciated and considered by the Trial Court while answering the contentious Issue No. 1 and Additional Issue No. 9. Therefore, it is urged by the learned Counsel Mr. Urval N. Ramanand on behalf of the bank that the findings recorded on the said contentious issues by the Trial Court are erroneous in law. Further it is contended that the Trial Court has committed an error by answering the said issues against the plaintiff-bank holding that defendants have not executed the promissory note and acknowledgements of debt as pleaded by the plaintiff-Bank without taking into consideration the documentary evidences Exs.P1, 4,5 and 6. Though defendants 1 and 2 admitted the availment of overdraft facility from the bank, merely be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 was absent at the time of hearing and even today also at the time of dictating this judgment he has remained absent. 15. We have perused the correctness of the findings and reasons recorded by the Trial Court in the impugned Judgment on the contentious issues with reference to the legal submissions made by Sri Urval N. Ramanand, Learned Counsel appearing for plaintiff-bank. For this purpose we have carefully scrutinized the documents produced by the parties before the Trial Court, which are available in the original record, to find out as to whether the impugned Judgment and Decree warrant interference in this appeal? After careful perusal of the findings and reasons recorded on the contentious issues by the Trial Court, we accept the correctness of the Judgment by concurring with the same and assigning the following additional reasons in support of the same: 16. We are in complete agreement with the conclusions arrived at by the learned Trial Judge and the findings recorded by him on all the contentious issues, except issue Nos. 2 and 8. It is the case of the plaintiff-bank that title deeds of suit schedule property are executed as per Ex.P3, P3(c) and P3(d) dated 1-9-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance upon Ex.P3 dated 1-9-1982, three month's earlier to availment of OD facility by the defendants No. 1 and 2, to contend that defendant Nos. 2 and 3 have authorized the back to re-deposit the title deeds for collateral security of loan amount availed by them in respect of the plaint schedule property. The said title deeds were already in their custody for the loan amount mentioned in the document dated 31-1-1979. As already stated supra, earlier date i.e. 31 -1 -1979 is in different ink. 18. The title deeds can be deposited either on the date of availment of loan or immediately earlier to the loan sanctioned to the defendants No. 1 and 2, as provided under Section 58(f) read with Section 54 of Transfer of Property Act, 1882. This document again, as already stated by us, is in two different handwritings and ink. The relevant dates of re-deposit of title deeds of the plaint schedule property in respect of loan availment vide Ex.P2, has no nexus to the transaction of loan amount by availing OD facility by defendants No. 1 and 2 at all. Therefore, the contention urged by the learned Counsel on behalf of the Bank that the limitation for institution of the suit is 12 years u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns signature of one witness. His name is not clearly mentioned in the said document. The signatures of defendants 2 and 3 are found in the said document. Since they have denied the execution of promissory note as pleaded in the plaint, the initial burden is on the Bank to prove the same as required under Section 101 of the Evidence Act. The name of witness described in the said document is not clearly mentioned and it is also not known whether the said witness is examined or not and thereby the initial burden is not discharged by the Bank as the execution of this document is seriously disputed by the defendants No. 2 and 3. Merely because the signatures are there on this document, it does not amount to accepting the liability of the overdraft facility extended to them in view of the specific denial of execution of promissory note Ex.P1 and acknowledgements of debt Exs.P4 to P6. 22. The document Ex.P4 is in two handwritings. With regard to contents and the dates mentioned in this document, PW-4 M. V. Bhaskar is a witness examined in the case to prove this document. He has categorically admitted in his evidence that he has filled up this document with regard to the date and the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 18 of the Limitation Act the limitation of 3 years starts from the date of signing the acknowledgement, hi view of the serious discrepancies found in the documents, the Trial Court came to the right conclusions and held that suit claim is barred by limitation by answering the issue No. 6 against the Bank. But, proper reasons are not assigned by it, while answering Issue No. 6. However, we have supplemented the reasons. Therefore, we hold that acknowledgements of debt referred to supra are not in conformity with the provisions of Section 18 of the Limitation Act. Hence the findings recorded on the contentious Additional Issue No. 9 against the Bank is legal and valid and do not call for interference by this Court. 24. The case of the Bank that defendants 2 and 3 also executed the acknowledgements of debt in respect of the loan amount due from the defendants No. 1 and 2 is factually not correct, which is evident from perusal of the original Ex.P4 to P6. These documents are signed by the second defendant. According to him, as pleaded in his written statement, his signatures were taken on the blank forms at the time of advancing the loan amount but not executed the same as ackn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently the same have been filled up to prefer claim by plaintiff, has to be accepted. Therefore, the findings and reasons recorded on the aforesaid contentious issued by the Trial Court can neither be termed as erroneous in law or suffer from error in law. 26. For the reasons stated supra, we have to record that the Bank officers are public servants. After nationalization of banks, the trust is reposed in them to achieve the laudable object of Bank Nationalization. The manner in which the concerned officers of the Bank maintained the documents in this case shows their negligence. The same is most unsatisfactory. From a perusal of the promissory note, acknowledgements of debt due and also the letter of deposit of title deeds, Exfacie, it is a clear case of fabrication of documents subsequent to lending the loan which conduct of the officers of bank is highly deplorable and same is deprecated. We are conscious about the fact that plaintiff-bank is a nationalised bank. The Nationalization of Private Banks was made by the Union of India with an avowed object to see that operation of economic system does not result in concentration of wealth in a few individual but to sub-serve t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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