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1. The plaintiff has brought the present suit seeking recovery of Rs.4,17,984/­ from the defendants. The plaintiff is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970, and suit has been filed through Sh. B.B. Bhatia, Senior Branch Manager, stated to be fully conversant with the facts of the case and duly authorized and competent to file the suit on the basis of power of attorney executed by the plaintiff bank. According to the plaintiff, defendant no­1 is the proprietorship firm and defendant no­2 is the proprietor of the same. The defendant no­2 opened a current account Bank of Baroda Vs. M/s Jolly Associates & Anr. 2/12 no.2657 on 22.12.2001 with the plaintiff bank. The defendant no­1 through defendant no­2 approached the plaintiff bank for grant of temporary overdraft facility. It was represented and promised to the plaintiff bank that on grant of over draft facility, the amount would be reimbursed by crediting their account with necessary deposition of funds. The plaintiff bank granted the temporary over draft to the defendants for their business purposes. It is further alleged that defendant no­2 issued a cheque for a sum of Rs.3 Lakhs in favour of M/s Mohan Sales (India), dated 10.05.2002 and payment against the said cheque was made by the plaintiff by crediting the said amount in the account of the firm, whereas the balance available in the account was only Rs.3,133/­. The payment made by the plaintiff bank, resulted in debiting the amount of Rs. 2,96,867/­ in the account of the defendants. Repeated requests were made by the plaintiff to the defendants to reimburse the said amount. The defendants deposited only a sum of Rs.40,000/­ on 17.12.2002. It is asserted that over draft carries interest @ 15.5% per annum with monthly rest and defendants have failed to discharge their liability despite legal notice dated 14.01.2005. The plaintiff bank is also maintaining regular books of accounts in ordinary course of business and according to the Bank of Baroda Vs. M/s Jolly Associates & Anr. 3/12 same, the defendants are liable to pay a sum of Rs.3,23,008/­ inclusive of interest up to 31.07.2003 and also a sum of Rs.94,976/­ on account of interest for the period 01.08.2003 to 28.03.2005 and as such a total sum of Rs.4,17,984/­ is claimed. The future and pendente lite interest has also been claimed on this amount and it is prayed that a decree be passed in favour of the plaintiff and against the defendants.

2)Whether the defendants had availed temporary overdraft facility of the plaintiff bank? If yes, to what effect? OPP Bank of Baroda Vs. M/s Jolly Associates & Anr. 5/12

3)Whether the plaintiff is entitled to the amount claimed? If yes, at what rate of interest? OPP

11. The plaintiff has filed the present suit through Sh. B.B. Bhatia, its principal officer. The attested signatures of the principal officer are placed on record as EX PW­1/1 and also the power of attorney favouring Sh. B.B. Bhatia Mark­A. The defendants have raised the objections in this regard.

12. The suit has been instituted by the bank, wherein public money is involved and according to settled legal position, the public interest should not be permitted to be defeated on a mere technicality. It cannot be disputed that a company can sue and be sued in its name. U/o 6 rule 14 CPC, a pleading is required to be signed by the parties and its pleader. Order 29 rule 1 CPC provides that in a suit by or against a corporation, the secretary or any director or other principal officer of the corporation, who is able to depose to the facts of the case might sign and verify the pleadings. In the present case, the defendants have not Bank of Baroda Vs. M/s Jolly Associates & Anr. 8/12 controverted the evidence of the plaintiff brought on record either by way of cross­examination of PW­1, 2 and 3 or by producing evidence in defence. In my opinion, the suit has been instituted by the proper authorized person on behalf of the plaintiff bank and this fact has been supported by sufficient documentary and oral evidence. Accordingly, the issue is decided in favour of the plaintiff bank and against the defendant. Issue No­(2) Whether the defendants had availed temporary overdraft facility of the plaintiff bank? If yes, to what effect? OPP