Delhi High Court
Indian Overseas Bank vs M/S. R.M. Marketing And Services Pvt. ... on 16 May, 2001
Equivalent citations: AIR2002DELHI344, [2001]107COMPCAS606(DELHI), AIR 2002 DELHI 344, 2002 CLC 1703 (DEL), (2002) 1 BANKCAS 144, (2002) 1 BANKJ 431
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. This Suit is filed by Indian Overseas Bank which is a nationalised Bank and a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The Suit is for recovery of Rs.792563. 46p. Averments contained in the plaint are that the defendant no.1 which is engaged in carrying on business of providing consultancy and engineering service to foreign and Indian buyers, assembly and fabrication of automatic capsule etc. approached the plaintiff-Bank for sanction of various loan facilities and among these was a cash credit limit of Rs.1 lakh. The plaintiff-Bank considered the request of the defendant no.1 and sanctioned a month other facilities a cash credit limit to the tune of Rs.1 lakh for which the following documents were executed:-
1. Resolutions dated 19th October, 1981 and 31st August, 1983.
2. Demand Promissory Note for Rs.1 lakh dated 20th October, 1983.
3. Letter of continuity (F-16) for Rs.1 lakh
4. Deed of Hypothecation in case of open advance dated 20th October, 1983 for Rs.1 lakh.
5. Form No.8 on the Companies Act, 1956.
6. Letter of Undertaking by the Company.
2. The defendants 2 and 3 gave personal guarantees dated 30th April, 1983 for Rs.12 lakhs and defendant no.2 gave another guarantee dated 12th October, 1983 for Rs.1 lakh and another personal guarantee dated 20th October, 1983 for Rs.1 lakh. A Cash Credit Account was opened with the plaintiff-Bank in its defense Colony Branch and the amount of Rs.1 lakh was transferred to the said account. The defendant no.1 availed the loan and it was kept over drawn however it did not adhere to the clearing of cash credit limits. The plaintiff approached the defendant no.1 for adjusting the loan amount on 28th June, 1986. The defendants confirmed the debit balance of Rs.45,36,217.45p. Revival letter no.F-301 dated 28th June, 1986 was also singed by the defendant no.2 as Managing Director of the defendant no.1. However, even thereafter the outstanding amount was not adjusted. The defendant had agreed to pay interest @ 13.5% at quarterl rests. The amount was debited from time to time with the aforesaid interest and as on the date of filing of the Suit the amount came to Rs. 7,92,563.46p.
3. Summons in the Suit were duly saved on all the defendants. However, only the defendants 1 and 2 appeared and filed the written statement. Following issues were framed on 18th September, 2000:-
1. Whether the plaint has been signed and filed by the authorised person?
2. Whether the plaint has been filed within limitation?
3. To what rate of interest, the plaintiff is entitled from the defendants?
4. Whether the suit is maintainable against defendant no.2?
4. Thereafter, the defendants 1 and 2 also stopped appearing and all the defendants were proceeded ex-parte. The plaintiff was allowed to lead evidence by way of affidavit. The plaintiff has filed the affidavit of Shri B.S.Jait, Assistant Manager, Indian Overseas Bank, defense Colony Branch, defense Colony, New Delhi. He has proved on record various documents as well. Exh.PW.1/1 is the Power of Attorney in favor of Shri S.S. Sharma, the then Chief Manager, Indian Overseas Bank, defense Colony Branch, defense Colony, New Delhi who has signed and verified the plaint and have filed this Suit. Various documents executed by the defendant no.1 are exhibited as Exh.PW.1/4 to PW.1/8. The personal guarantees of the defendants 2 and 3 are exhibited as Exh.PW.1/9 to PW.1/12. The balance confirmation given by the defendant no.1 is exhibited as Exh.PW.1/13 and the revival letter is exh.PW.1/14. The plaintiff-bank has also given legal notice which is exh.PW.1/15. The witness has also stated that as per the record a total amount of Rs.7,92,563.46p is outstanding. Statement of account duly certified by the bankers under the Evidence Act has been filed along with the plaint. In the affidavit, it is also stated that the defendant no.3 has paid a sum of Rs.5,92,887.70p during the pendency of the Suit and the defendant has absolved him from the liabilities. After adjusting the aforesaid payment, as per this affidavit, balance sum of s.1,96,675.76p only is due and decree for this amount is prayed for.
5. The defendants 4 to 6 are also imp leaded on the ground that they were Directors of the defendant no.1. However, these defendants did not give any personal guarantee for due payment of loan and simply because they were Directors of the defendant no.1 they could not be fastened with the liability as the defendant no.1 which is a Company incorporated under the Companies Act is separate legal entity. The defendants 2 and 3 would be liable as Guarantors. Since the defendant no.3 has also been absolved from the liabilities no decree need to be passed against the defendant no.3 as well.
6. Decree in the sum of Rs.1,96,675.76p is accordingly passed against he defendants 1 and 2 along with interest on this amount @ 16.5% per annum from the date of institution of Suit till recovery thereof. The plaintiff shall also be entitled to cost. Decree be drawn accordingly.