Calcutta High Court
Uco Bank vs Precision Engineering Systems & Ors on 6 March, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
C.S. No. 292 of 1987
UCO BANK
Vs.
PRECISION ENGINEERING SYSTEMS & ORS.
For the Plaintiff : Mr. Debdutta Sen, Advocate
Heard on : February 27, 2014
Judgment on : March 06, 2014
DEBANGSU BASAK, J.
Suit was for recovery of money lent and advanced. The plaintiff also sought a declaration that properties mentioned in Annexure 'H' to the plaint remained hypothecated to the plaintiff as security. The Defendant No. 2(a) filed written statement. The defendants did not appear at the hearing of the suit.
The original documents of the plaintiff were lost. The plaintiff produced the partner of the Solicitor firm who was acting on behalf of the plaintiff as its Advocate on Record to prove that the documents annexed to the plaint where the true copies of the originals. Such Advocate deposed on June 14, 2011. By such deposition the Advocate established that, the documents annexed to the plaint were true copies of the original. He also established that, the original documents were lost from the custody of the Bank. The plaintiff lodged a complaint with the local Police Station.
The second witness of the plaintiff was the Assistant Manager of the plaintiff who deposed on the merits of the claim of the plaintiff. The second witness proved the documents executed by the defendants. The first defendant was a partnership firm. The original Defendant No. 2 and the Defendant No. 3 were the partners of the first defendant. On the death of the original Defendant No. 2 his wife was substituted in his place and stead. A written statement was filed by the Defendant No. 2(a).
The first defendant was availing of cash credit facilities from the plaintiff with a limit of Rs. 25,000/-. It was increased to Rs. 50,000/- on April 11, 1975. By Exhibit 'O' being a document dated August 4, 1980 the defendant agreed to avail of credit facilities to the tune of Rs. 60,000/- from the plaintiff in a term loan account. The defendants agreed to repay such term loan in monthly installments of Rs. 2,000/- and interest at the rate of 2% above the Reserve Bank of India rate. As security for such credit facilities the defendants executed a deed of hypothecation on August 4, 1980 which was Exhibit 'P'. By such deed of hypothecation the movable plant and machinery of the Defendant No. 1 were hypothecated in favour of the plaintiff as security for the term loan. On July 3, 1981 the defendants executed five several documents to avail of the cash credit facility.
The defendants received orders from CESC Limited. In order to execute such work the defendants requested the plaintiff to grant ad hoc cash credit facilities of a sum of Rs.5,00,000/-. By Exhibit 'G' which was a letter of the defendant such request was made. By Exhibit 'H' which was a letter dated May 25, 1982 the defendants admitted receipt of ad hoc credit facility of Rs.4,00,000/- and requested for extension of time to repay.
By a writing dated July 3, 1982 which was Exhibit 'F' the Defendant Nos. 2 and 3 intimated the bank that they were the partners of the first defendant and any one of them were authorized to act on behalf of the first defendant.
On August 23, 1982 the defendants paid a sum of Rs.9,000/- towards part payment of the term loan.
By letters dated August 28, 1982 and January 14, 1983 which were marked as Exhibits 'I' and 'G' respectively, the defendant admitted and acknowledged their liability and sought extension of time to pay. The defendants repeated such request in the letter dated June 13, 1983 which was marked as Exhibit 'K'. By a letter dated October 30, 1984, the defendants claimed that, they would repay the bank after receipt of payment from one of its debtors. This letter was marked as Exhibit 'R'. By Exhibits 'L', 'M' and 'S' the defendants acknowledged diverse amounts to be due and payable by them on the cash credit account. By Exhibit 'T' the defendant acknowledged a sum of Rs.33,633.45p to be due and payable on the term loan account as at January 2, 1986. By a writing dated February 18, 1986 which was Exhibit 'N' the defendant acknowledged their liability and gave a proposal for regularization of the account. This proposal was not accepted by the plaintiff. The plaintiff through their Advocate's letter dated December 11, 1986 being exhibit 'U' recalled the credit facilities and called upon the defendants to pay. The defendants having failed and neglected to pay the instant suit was filed at the instance of the plaintiff. The statement of account for the cash credit was marked as Exhibit 'V' and the statement of account for the term loan was marked as Exhibit 'W'. Both the statement of accounts was duly certified under the Bankers Books of Evidence Act.
During the pendency of the suit the original documents were lost from the custody of the bank. However, at the time of filing the suit the plaintiff annexed copies of the original documents to the plaint. The partner of the firm of Advocates who filed the instant suit on behalf of the plaintiff deposed that, the documents annexed to the plaint were true copies of the original. On loss of the original documents the plaintiff made a police complaint on April 26, 2006 which was Exhibit 'X'.
The plaintiff, therefore, established that a sum of Rs.8,27,071/- was due by the defendants in the cash credit account as on February 14, 1987 and a sum of Rs.39,830/- was due and payable by the defendants on the term loan account as on the same date. The plaintiff was entitled to interest at the agreed rate. By Exhibit 'P' it would appear that, the defendants agreed to pay interest at the minimum rate of 11% per annum with 2% above the Reserve Bank of India rate. The rate of interest of Reserve Bank of India was, however, not available from the documents. In absence of such rate being specified, I award interest at the rate of 11% per annum on and from February 14, 1987 until the realization. The property described in Schedule 'H' to the plaint remained hypothecated to the plaintiff. The plaintiff was, therefore, entitled to a decree in terms of prayer (c) and (d) of the plaint. The plaintiff was also entitled to cost of the instant suit which is assessed at Rs.50,000/-.
The plaintiff will, therefore, be entitled to a decree for the aggregate sum of Rs.8,66,901/- together with interest at the rate of 11% per annum on and from February 14, 1987 until realization. There will also be a decree in terms of prayers (c) and (d) of the plaint. The plaintiff is entitled to a sum of Rs.50,000/- as costs.
C.S. No. 292 of 1987 is disposed of accordingly.
[DEBANGSU BASAK, J.]