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Showing contexts for: parwanda in Sh. Ashwani Kumar vs The Assistant General Manager on 1 November, 2012Matching Fragments
3. The defendant filed written statement taking preliminary objection that the suit of the plaintiffs is not maintainable. M/s. ABI Overseas Limited was enjoying the credit facilities in which Sh. Vipen Parwanda was the promoter Director. The said company was subsequently taken over by the new Directors ie. plaintiffs for a consideration. As per settlement arrived at for taking over the company from Sh. Vipen Parwanda, plaintiffs were to make some consideration amount to earlier Director Sh. Vipen Parwanda. Sh Vipen Parwanda who had interest in the companies M/s. Secos India (P) Ltd., M/s. Sikka Associates, M/s. Kumar Travels, M/s. Venus Management (P) Ltd and M/s. Falcon Book Pvt. Ltd requested the defendant bank to accommodate by discounting cheques in the account of these companies. The defendant on the assurance of Sh. Vipen Parwanda and present plaintiffs accepted the request and discounted certain cheques which were subsequently returned unpaid and as a result, there was an outstanding dues to the extent of Rs.1.25 Crores. The present plaintiffs were to pay certain consideration amount to Sh. Vipen Parwanda, one of the plaintiffs Sh. Ashwani Kumar and Sh. Vipen Parwanda executed a Demand Promissory Note for Rs.1.25 Crores along with security letter to secure the outstanding dues arising out of the discounted cheques. Further to secure the outstanding dues of the discounted cheques, the plaintiffs mortgaged their properties at the time of closure of the liability of M/s. ABI Overseas Ltd. Sh. Vipen Parwanda also sent a letter dated 1.4.2004 admitting that the property measuring 1400 sq. yds with building in 1/5875 (New) 641 (previos) in village Chanderiwali Main Loni Road Shahdara owned jointly by Mr. Aswini Kumar, Deepak Anand, Rakesh Gulati was mortgaged with the defendant bank. In reply on merits, similar averments were made. It is also denied that plaintiff had given their consent through letter dated 14.3.2004 under coercion. It is also averred that plaintiffs are graduate and they have not filed any complaint that the letter dated 24.3.2004 was taken under coercion.
I am deciding Issues no.1, 2 & 3 together as they are inter connected.
ISSUES NO.1, 2 & 3:
8. The burden to prove the issues no.1 & 3 is upon the plaintiffs and the burden to prove the issue no.2 is upon the defendant. It is the main case of the plaintiffs that the defendant had given a loan of Rs.75 Lakhs to M/s. ABI Overseas Pvt. Ltd. The plaintiffs were guarantors and they had deposited the original title deed of property No.1/5875, Kabool Nagar, Shahdara, Delhi. The loan was repaid and the defendant be directed to return the title deeds of the property. On the other hand, it is the case of the defendant that the plaintiffs had executed a letter dated 24.3.2004 which is signed by the plaintiffs. The DW 1 has proved the letter dated 24.3.2004 on record as Ex DW1/2. This letter is signed by all the three plaintiffs. On one hand, plaintiffs are contending that they have not executed any letter dated 24.3.2004 and on the other hand, they admitted that letter dated 24.3.2004 was executed under coercion. Thus letter dated 24.3.2004 which is proved on record as Ex DW1/2 is admitted by the plaintiffs. This letter was written by plaintiffs to the Assistant General Manager, Federal Bank regarding release of title deeds. In this letter, it is mentioned by the plaintiffs "We have mortgaged the property to the extent of 1400 sq. yd situated at Chanderiwali, Main Loni Road, Kabool Nagar, Shadra, Delhi32 for the credit limit sanctioned to M/s. ABI Overseas Ltd. Though the liability of M/s. ABI Overseas Ltd is cleared, we will not request for release of the documents and confirm continuance of charge over the property until and unless the liability of (a) M/s. Secos India (P) Ltd. (b) M/s. Sikka Associates (c) M/s. Kumar Travels (d) M/s. Venus Management (P) Ltd and (e) M/s. Falcon Book Pvt. Ltd to the extent of Rs.1,25,00,000/ (Rupees One Crore Twenty Five Lakhs only) is made nil." Thus, the plaintiffs have written the letter to the defendant that they will not request for release of title deeds of property No.1/5875, Kabool Nagar, Shahdara, Delhi. The plaintiff namely Sh. Ashwani Kumar and Sh. Vipen Parwanda also executed a pronote dated 24.3.2004 and in the pronote, it is mentioned that "On Demand, We, (1) Sri Vipen Parwanda, aged 46 years S/o Late Shri Ram Avtar Parwanda residing at 139, Swapan Kunj, PocketA/8, Kalkaji Extn. New Delhi 110019 and (2) Sri Ashwani Kumar aged 34 years S/o Sh. Mohan Kumar residing at C385 Surya Nagar, Ghaziabad and jointly and severally promise to pay THE FEDERAL BANK LIMITED, or order the sum of Rupees One Crore Twenty Five Lakhs Only together with interest at the rate of 17.74 percent per annum with Monthly rests, for value received." Thus, by this pronote, both Sh. Vipen Parwanda and Sh. Ashwani Kumar are jointly and severally liable to pay defendant a sum of Rs.1,25,00,000/ along with interest @ 17.74% pa with monthly rests for value received. The plaintiffs have not denied to have executed the pronote Ex DW 1/1. A question was put to PW 1 whether he has signed the promissory note for Rs.1.25 Crore along with Sh. Vipen Parwanda. This witness replied that he does not remember whether he signed or not. Thus PW 1 has not denied to have executed pronote Ex DW 1/1. This witness also admitted that he is commerce graduate and doing the business for the last many years. The other plaintiffs Sh. Deepak Anand and Sh. Rakesh Gulati are also commerce graduates. Thus, it is not proved that letter dated 24.3.2004 was signed by the plaintiffs under coercion and PW 1 also admitted to have executed pronote Ex DW 1/1. Thus, this contention of counsel for the plaintiff carries no force that the letter dated 24.3.2004 was got signed under coercion.
9. The next contention raised by counsel for the plaintiff is that on Ex DW 1/2, there is a cutting on the area of the property. Thus, this letter dated 24.3.2004 cannot be taken into consideration. I fail to accept this contention of counsel for the plaintiff as Sh. Vipen Parwanda has written a letter dated 1.4.2004 and has clearly mentioned that till the liability in all the accounts are cleared, the title deeds of the property to the extent of 1400 sq. yds with building in 1/5875 (New) 641 (previos) in village Chanderiwali Main Loni Road Shahdara owned jointly by Mr. Aswini Kumar, Deepak Anand, Rakesh Gulati is offered as security to the bank. In the letter, it is mentioned that a joint letter of deposit dated 24.3.2004 duly signed by the owners of the property is already given to the bank to above effect stating they will not request for release of the title deeds till the liabilities are settled. The plaintiffs have not brought Sh. Vipen Parwanda in the witness box to prove that letter dated 1.4.2004 was not written by Sh. Vipen Parwanda to defendant. In this letter, it is also admitted that plaintiffs have written a letter dated 24.3.2004. Plaintiffs have also not denied the fact that the cheques to the extent of Rs.1,25,00,000/ has been discounted by the defendant bank. It is also not the case that amount of Rs.1.25 Crore has been paid by the plaintiffs in respect of liabilities of these cheques.
vii. AIR (37) 1950 Nagpur 117, Bapurao Dajiba v. Narayan Govind Kale.
I have perused these judgments with utmost regard, but, these judgments are not helpful to the plaintiffs as all the plaintiffs have executed letter dated 24.3.2004 and one of the plaintiffs Sh. Ashwani Kumar has executed pronote along with Sh. Vipen Parwanda.
11.The plaintiffs have bitterly failed to prove the issues in their favour. Accordingly, all the issues are decided against the plaintiffs and in favour of the defendant.